Nastase (aka Nicolae Soloman) v Office of the State Prosecutor, Trento, Italy

For the purposes of section 20(5) of the Extradition Act 2003, an entitlement to a retrial may be subject to procedural steps and defined statutory conditions. Such steps do not reduce the entitlement to a mere possibility of obtaining a favourable exercise of discretion.

A person convicted in absentia is entitled to a fresh determination where the requesting state’s law requires restoration of the appeal period unless the foreign court establishes actual knowledge of the proceedings and voluntary renunciation of the right to appear or appeal. The judicial authority must establish the statutory requirements to the criminal standard. A reasonable doubt requires discharge.

Section 20(8) is satisfied where the renewed proceedings permit representation, challenge to prosecution evidence and the calling of defence evidence, although the foreign court may regulate the admission and renewal of evidence.

The Italian judicial authority sought the appellant’s extradition under a conviction European arrest warrant concerning a robbery. He had been convicted in his absence by the Court of Trento. District Judge Zani ordered extradition after finding that the appellant would receive an appeal amounting to a retrial and the rights required by section 20(8) of the Extradition Act 2003.

The appellant contended that Italian law gave him only a discretionary opportunity to seek restoration of the time for appealing. He also argued that the evidence did not establish that renewed proceedings would provide the rights specified by section 20(8). The central issue was whether an entitlement dependent on an application under Italian procedural law constituted an entitlement to a retrial within section 20(5).

1. The appeal was dismissed. The evidence established to the criminal standard that the appellant would be entitled to an appeal amounting to a retrial and would receive the protections required by section 20(8) of the Extradition Act 2003.

2. An entitlement under section 20(5) may be exercised within procedural rules. The existence of an application or other procedural step does not convert a legal right into a discretionary possibility. A distinction must be drawn between a court’s exercise of a pure discretion and its application of defined legal conditions to established facts. Bohm v Romanian Judicial Authority [2011] EWHC 2671 (Admin), where the Romanian court retained a discretion, was distinguishable.

3. Under article 175(2) of the Italian Code of Criminal Procedure, a person who was unaware of the proceedings and was tried in absentia may obtain restoration of the time for appealing. The applicant need show no more than absence from the original proceedings. Restoration may be refused only if the Italian judge establishes that the defendant actually knew of the proceedings and voluntarily renounced the right to appear or appeal. This interpretation accorded with Gradica, Ahmetaj and Rexha.

4. There was no evidence that the appellant knew of the trial or voluntarily renounced his rights. The Italian courts could be expected to apply their criminal code and the Court of Cassation’s Judgment 1805/2010. The theoretical possibility of refusal did not undermine the conclusion that the appellant possessed the relevant entitlement.

5. Article 603(4) entitled a person satisfying article 175(2) to renewal of the trial and reopening of the evidence. The Italian tribunal could regulate the evidence without infringing section 20(8). The appellant would be represented and able to challenge the evidence against him and call evidence on his own behalf. The conclusion rested on the evidence about Italian law and did not depend solely upon mutual trust or Italy’s Convention obligations.

6. The judicial authority bore the burden of satisfying the court to the criminal standard. The District Judge correctly recognised that any reasonable doubt about the statutory guarantee would require discharge. His findings were open to him on the evidence.

1. High Court, Divisional Court: Dismissed the appellant’s statutory appeal and upheld the extradition decision.

2. District Judge: On 17 April 2012, District Judge Zani rejected the appellant’s objections under section 20 of the Extradition Act 2003 and ordered extradition.