Elashmawy v Court of Brescia, Italy & Ors

For the purposes of section 20 of the Extradition Act 2003, a criminal trial in a civil-law system may be a continuing process rather than a single hearing. A requested person is convicted in his presence if he attended the substantive hearing which led to the final conviction. A conscious decision not to attend remains a deliberate absence even if it followed erroneous legal advice.

Extradition to serve a sentence after a foreign trial engages Article 5 only where the earlier proceedings were flagrantly unfair. An opportunity to examine witnesses and present a defence satisfies Article 6 even if it was lost through a privately instructed lawyer's negligence.

Article 3 prison-condition objections require substantial grounds for believing that there is a real risk of prohibited treatment. Current cogent evidence may displace earlier findings of systemic prison overcrowding and restore the strong presumption that an EU state will comply with Convention obligations.

The claimant appealed against an order of Deputy Senior District Judge Arbuthnot for his extradition to Italy under a conviction European Arrest Warrant, so that he could serve a sentence for rape.

He contended that he had been tried in absentia and was entitled to discharge under section 20(7) of the Extradition Act 2003. He also alleged a flagrantly unfair trial, contrary to Articles 5 and 6 of the European Convention on Human Rights, and a real risk of Article 3 treatment in Italian prisons.

The court also heard submissions from interested parties in connected Italian extradition proceedings on the prison-conditions issue. The central questions were whether the Italian criminal process amounted to a trial in the claimant's presence, whether any unfairness was flagrant, and whether current evidence established an Article 3 risk.

1. Appeal dismissed. The claimant had been convicted in his presence for section 20(1) purposes. Following Caldarelli v Court of Naples Italy [2008] 1 WLR 1724, an Italian criminal trial is a continuing process. The determinative substantive hearing was the second Brescia appeal in 2011, at which the claimant was present and represented and his alibi evidence was heard.

2. In any event, considering the process as a whole, the claimant deliberately absented himself from the earlier hearings. The court preferred the reasoning in Atkinson v Supreme Court of Cyprus [2010] 1 WLR 570: a conscious choice not to attend is deliberate even where it is based on mistaken advice from a lawyer. Where a trial comprises several substantive hearings, the section 20 questions may require a compendious answer rather than a simple binary answer.

3. The Articles 5 and 6 ground also failed. A conviction warrant may engage Article 5 where imprisonment follows a flagrantly unfair trial, but a mere Article 6 contravention is insufficient. The Italian authorities had afforded the claimant an opportunity to cross-examine prosecution witnesses, call defence witnesses and give evidence. The failure to use that opportunity arose from the claimant and his privately chosen legal representatives, not from any default by the Italian state. The appellate court had scrutinised, rather than reversed the burden of proof against, the alibi evidence.

4. The Article 3 ground failed on the current evidence. The governing question was whether substantial grounds showed a real risk of inhuman or degrading treatment. Although Torreggiani and others v Italy had identified systemic overcrowding, subsequent evidence, including the Committee of Ministers' material and Stella and others v Italy, showed effective preventive and compensatory remedies, reduced prison numbers and no prisoner with less than three square metres of personal space. The earlier factual position in Badre v Court of Florence, Italy [2014] EWHC 614 (Admin) could not control the present assessment.

5. The evidence restored, or independently satisfied, the strong presumption that Italy would comply with Article 3. It was therefore unnecessary to decide whether the individual prison assurances were sufficiently precise. The same Article 3 conclusion bound the first interested party, subject to an unforeseen material change of circumstances.

• High Court (Administrative Court): dismissed the claimant's appeal and upheld the extradition order on all three grounds.
• Magistrates' Court: Deputy Senior District Judge Arbuthnot dismissed the claimant's challenges and ordered his extradition on 18 August 2014.