Dumitrache v Prosecutor of the Republic Attached to the Court of Pordenone, Italy

For the purposes of Extradition Act 2003, a person is convicted in their presence where the court finally determines guilt and imposes the sentence at a hearing attended by the person, even if the person leaves before the judgment is read. Subsequent steps enforcing or calculating the sentence do not constitute a further trial.

The English court must determine whether the requested person has an entitlement to a retrial under the law of the requesting state. It does not impose English procedural requirements on that entitlement or examine who bears the burden of proof in the foreign proceedings. In an Article 8 balancing exercise, delay remains relevant, but its weight may be reduced where the requested person is a fugitive. The appeal was dismissed.

The appellant challenged an order made by District Judge Goldspring on 20 January 2020 for his extradition to Italy under two conviction European Arrest Warrants. The appeal was brought under section 26 of the Extradition Act 2003.

The grounds concerned section 20, including whether the appellant had been present at the trials and whether he would have a right to a retrial, and section 21 and Article 8 of the European Convention on Human Rights. The appellant also challenged the assessment of delay, family hardship, fugitive status and evidence concerning Italian extradition practice.

1. The court admitted further information from the Italian authorities because it clarified the factual issue whether the appellant had been convicted and sentenced on 9 November 2015.
2. The challenge relating to EAW 1 was not within the permission granted. In any event, it lacked merit. The appellant had stated that he was present at the relevant trial. Alternatively, the information in the warrant and further information supported the District Judge’s conclusion that a retrial entitlement existed for section 20(5) purposes, applying Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin).
3. For EAW 2, the relevant trial was the hearing on 9 November 2015. The appellant had attended that hearing, was present before the judge, and was then convicted and sentenced. The warrant, the Schengen records and the Italian procedural material all supported that conclusion. The later imprisonment order was an enforcement step and did not amount to a further trial. Questions under section 20(3) and (5) therefore did not arise.
4. The court provisionally considered that Ogreanu v Italian Judicial Authority [2020] EWHC 1254 (Admin) was wrongly decided because it confused the burden on the requesting authority under section 20 with the burden applicable in the foreign proceedings when obtaining a retrial. No concluded view was necessary, and Nastase remained good law.
5. The Article 8 challenge failed. The District Judge was entitled to find that the appellant was a fugitive, that the offences were serious, and that the family and financial hardship, delay and other factors did not outweigh the public interest in extradition. Delay was treated as relevant, but its weight was reduced by the appellant’s fugitive status. The District Judge had not conducted an impermissible comparative exercise and there was no material error of fact or principle.
6. The appeal was dismissed.

• High Court (Administrative Court): District Judge Goldspring ordered extradition on 20 January 2020. The Divisional Court dismissed the appeal under section 26 of the Extradition Act 2003.