Tribunal Judicial da Comarca de Lisboa Norte, Republic of Portugal v Carlos Issac Kassimo dos Santos

For section 20 of the Extradition Act 2003, a person convicted in involuntary absence is entitled to a retrial only where the procedure provides, in substance, a further trial with the procedural rights available at the original trial.

An appellate review does not amount to a retrial merely because it permits reconsideration of the merits or the admission of fresh evidence. A requirement to establish a defect in the original proceedings before evidence can be called is a substantive qualification and is inconsistent with an unqualified entitlement to a retrial. The requirement protects the right to a fair hearing under article 6 of the Convention.

The respondent had been convicted of qualified homicide in Portugal while absent from his trial. The District Judge found that his absence was not deliberate and discharged him under section 20(7) of the Extradition Act 2003, holding that his Portuguese appeal rights did not amount to a retrial or a review amounting to a retrial.

Portugal appealed. The respondent’s appeal procedure ordinarily involved review of the case file and did not permit oral evidence unless a defect identified in article 410 of the Portuguese CPP was first established. The central issue was whether that procedure satisfied section 20(5), having regard to section 20(8), the applicable extradition arrangements and article 6 of the Convention.

1. Appeal dismissed. The District Judge correctly discharged the respondent under section 20(7) of the Extradition Act 2003.
2. The question under section 20(5) was whether the respondent was entitled to a retrial or, on appeal, a review amounting to a retrial. The ordinary meaning of a retrial is a further trial with the same procedural rights as the original trial, including the ability to call relevant evidence. The phrase concerning a review amounting to a retrial accommodates different procedural mechanisms in different jurisdictions but does not reduce those substantive rights.
3. Section 20(8) is explanatory and clarificatory of section 20(5). It requires the rights to defend oneself and to examine and call witnesses. Those rights may be subject to ordinary evidential and procedural requirements, but not to a substantive requirement that the convicted person first establish a defect in the original trial.
4. The Portuguese appeal did not satisfy that test. It ordinarily involved a restricted review of the first-instance decision. Oral evidence could be admitted only in exceptional circumstances and after a defect under article 410 of the Portuguese CPP had been established. Without such a defect, the appeal could fail even where the person possessed compelling evidence of innocence.
5. That construction was consistent with the updated Framework Decision, the EU-UK Trade and Cooperation Agreement 2020 and article 6 of the Convention. The respondent had not previously had the right to be heard or to examine witnesses because he was unaware of the trial. Sanader v Croatia and Topi v Albania provided supporting context. Jones v United Kingdom was distinguishable because the defendant had deliberately absented himself.

• District Judge: District Judge McGarva refused extradition and discharged the respondent under section 20(7) of the Extradition Act 2003.
• High Court (Administrative Court): The appeal was dismissed. The District Judge’s discharge order was upheld.