Zdravko Tihomiro Stefanov v District Attorney of the Court of Venice, Italy

In extradition proceedings, the passage of time may have different legal significance under sections 14 and 21 of the Extradition Act 2003. For a conviction warrant, section 14 focuses on the period since the requested person became unlawfully at large. Earlier delay may instead be considered within the Article 8 proportionality assessment under section 21.

Delay diminishes the public interest in extradition and may raise concerns about trial fairness, but it does not automatically make extradition disproportionate. The seriousness of the offending, the public interest in prosecution and punishment, family circumstances, and any evidential prejudice must be weighed together.

Where a person was convicted in absentia, Articles 175 and 603 of the Italian Code of Criminal Procedure may provide a sufficient right to a retrial for the purposes of section 20.

The appellant appealed against a District Judge’s decision dated 20 October 2021 ordering his extradition to Italy to serve a sentence of six years and six months for trafficking offences committed in 2007.

Permission was granted on issues concerning passage of time under section 14, the right to a retrial following conviction in absentia under section 20, and Article 8 proportionality under section 21. The appellant also relied on fresh expert and family evidence. The central questions were whether the statutory requirements were met and whether extradition would be unjust, oppressive or disproportionate.

1. Appeal dismissed. The District Judge’s conclusions under sections 14 and 21 were not wrong, and the appellant was not entitled to discharge under section 20(7) of the Extradition Act 2003.
2. For a conviction warrant, section 14 concerns the period since the requested person became unlawfully at large. The substantial earlier delay between the offending and that date was properly considered under section 21 and Article 8, where the question is proportionality rather than injustice or oppression. This approach followed Konecny v Czech Republic [2019] UKSC 8.
3. The admission of fresh evidence is governed by the interests of justice. Evidence available at first instance should ordinarily be used there, and admitting evidence which requires a full rehearing is exceptional. The court nevertheless considered the expert evidence because permission had already been granted, both parties had engaged with it, and the respondent had not properly addressed section 20 below. The approach in Hungary v Fenyvesi [2009] EWHC 231 (Admin) and Zabolotnyi v Hungary [2021] UKSC 14 was applied.
4. The respondent bore the burden of proving, to the criminal standard, that the appellant would be entitled to a retrial meeting section 20(5) and (8). Articles 175 and 603 of the Italian Code of Criminal Procedure provided a sufficient evidential basis. The appellant could apply for a new time limit to appeal, and a person tried in absentia without knowledge of the proceedings had a right to renewal of the trial evidentiary hearing.
5. The court followed the reasoning in Nastase v Italy [2012] EWHC 3671 and Galusca v Italy [2021] EWHC 3345 (Admin). The contrary approach in Ogreanu v Italy [2020] EWHC 1254 was not followed, having proceeded on a concession which the later Divisional Court decision considered should not have been made.
6. The delay was very substantial, unexplained and likely to affect the quality of evidence. It reduced the weight of the public interest in extradition. However, the seriousness of the offences, involving exploitation and threats of violence, meant that the public interest remained very strong. The family and medical evidence did not make extradition disproportionate. The court was entitled to assume that the Italian courts would address evidential difficulties fairly, following Symeou v Greece [2009] EWHC 897 (Admin) at [61].

• High Court (Administrative Court): Appeal against the District Judge’s decision of 20 October 2021 dismissed.