CEZAR GALUSCA v ITALIAN JUDICIAL AUTHORITY

For Extradition Act 2003 section 20(5), entitlement to a retrial need not be unqualified. It may be subject to procedural requirements under the law of the requesting state.

The requesting state must establish the entitlement under its own law. A burden placed on the requested person may nevertheless be relevant if it is practically impossible to discharge. An evidential burden requiring the person to put forward a case of blameless lack of knowledge does not, without more, prevent entitlement to a retrial.

The English court must assess the foreign procedure with an internationalist approach and may assume that an EU and ECHR state will act compatibly with article 6.

The appellant had been convicted in absentia in Italy and sentenced to imprisonment. The Italian authorities stated that, under article 629 bis of the Italian Code of Criminal Procedure, he would be entitled to a retrial if he could prove that his absence resulted from a blameless lack of knowledge of the proceedings.

The District Judge found that the prosecution had not proved deliberate absence from trial under section 20(3) of the Extradition Act 2003, but ordered extradition under section 20(5), finding that the appellant would be entitled to a retrial. The issue on appeal was whether that conditional entitlement satisfied section 20(5).

1. Appeal dismissed. The District Judge was entitled to order extradition.
2. Section 20(3) and section 20(5) address distinct questions. The requesting state must prove deliberate absence if it relies on section 20(3). Under section 20(5), it must establish that, under the law of the requesting state, the person will be entitled to a retrial if surrendered.
3. Following Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin), procedural requirements under foreign law do not necessarily remove entitlement to a retrial. The entitlement may be contingent. The English court must respect the requesting state’s own procedural regime and must not impose English practices upon it.
4. The court rejected the proposition, advanced as common ground in Ogreanu v Italian Judicial Authority [2020] 1 WLR 4080, that section 20(5) cannot be satisfied where the requested person bears any burden in the requesting state. The burden of proof in the English extradition proceedings and the burden under foreign law for obtaining a retrial are separate issues.
5. The court declined to endorse without qualification the provisional view in Dumitrache v Office of the Prosecutor of the Republic attached to the Court of Pordenone, Italy [2021] EWHC 958 (Admin) that any foreign-law burden is irrelevant. A burden that was impossible to discharge in practice might mean that there was no real entitlement to a retrial.
6. Article 629 bis imposed only an evidential burden to put forward a case of blameless lack of knowledge. The appellant’s witness statement did so unequivocally. It would be for the Italian court to assess any contrary evidence. The requirement did not infringe article 6 or exceed the procedural requirements contemplated in Nastase.

• Westminster Magistrates’ Court: District Judge Tempia ordered extradition on 15 December 2020, holding that the appellant would be entitled to a retrial under section 20(5) of the Extradition Act 2003.
• High Court (Queen’s Bench Division, Divisional Court): The appeal was dismissed. Permission was granted on the section 20 issue; permission on article 8 grounds was refused.