Extradition to Italy
Generally speaking, extradition is the official process whereby one nation or state (the requested state) surrenders a suspected or convicted criminal to another nation or state (the requesting state). Purpose of this article is giving an overwiew for practitioners abroad of possibile defense arguments trying to fight extradition / execution of European Arrest Warrant (EAW).
1. Introduction: active extradition
2. Did any court refuse extradition to Italy?
2 (a) Torreggiani case
2 (b) Badre case
2 (c) Rancadore case
3. After Torreggiani
3 (a) Riva and Elashmawy cases
3 (b) German Constitutional Court (Bundesverfassungsgericht, Order 2 BvR 2735/14, delivered december, 2015) for Italian "in absentia" trials: in 1992, by final judgment of an Italian court, an US citizen was sentenced in absence to a custodial sentence of thirty years for participation in a criminal organisation and import and possession of cocaine. In 2014, he was arrested in Germany on the basis of a European arrest warrant. In the context of the extradition procedure, he mainly submitted that he did not have any knowledge of his conviction and that, under Italian law, he would not be able to have a new evidentiary hearing in the appeals proceedings. The German Constitutional Court reversed the German court of merit's favorable decision, ruling that the protection of fundamental rights by the Federal Constitutional Court may include review of sovereign acts determined by Union law if this is indispensable to protect the constitutional identity (see infra). UPDATE: on May, 6th, the German Federal Constitutional Court (2 BvR 890/16) gave a premilinary ruling against UK (regarding the right to remain silent):
3 (c) CPT 2017 Report on Italy
The CPT still reports allegations of physical ill-treatment of prisoners by staff were received at all the prisons visited, improper use of seclusion rooms in only their underwear for prolonged periods and on occasion fixated to a bed with handcuffs, that all establishments visited suffered from structural material deficiencies and that the range of purposeful activities on offer remained limited, and out-of-cell time was generally spent circulating in wing corridors and communal rooms (link to the Report on Italy 2017 ).
If interested, you may read the Italian extradition rules codified in the Italian Code of Criminal Procedure (copyright CEDAM Wolters Kluwert, 2014, extract for study purpose).
For the purposes of the introduction to the extradition rules from Italy to another country, please read Extradition from Italy.
Concerning the active extradition, which - under italian perspective - is the extradition from another State to Italy, the fundamental principle is that extradition follows the rules of the treaty signed with the requested state, if there is one.
In 2011, Italy has extradition treaties with following countries: Argentina, Australia, Austria, The Bahamas, Bolivia, Brasil, Canada, Costa Rica, Cuba, Germany, Kenya, Lesotho, New Zealand , Paraguay, Peru, The Vatican, Singapore, Sri Lanka, The United States of America and Uruguay.
Italy has also signed some multilateral treaties, like the European Convention on Extradition (Paris, 1957).
Basically, signing states of the treaty obligate themselves to surrender an alleged criminal to a foreign state, derogating from the principle of sovereignty (which means that every state has legal authority over the people within its borders).
By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests.
Common bars to extradition include:
1. Failure to fulfil dual criminality (generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties);
2. Political nature of the alleged crime (most countries refuse to extradite suspects of political crimes; Italian Constitution prohibits extradition expressly: "In no case may it be permitted for political offenses", art. 26 Italian Constitution);
3. Possibility of certain forms of punishment (some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture or inhumane treatment). Please note that Italy is a party of to the European Convention for Human rights and will not allow extradition if the death penalty may be imposed and cannot extradite people where they would be at significant risk of an unfair trial, being tortured inhumanely or degradingly treated or punished. After the sentence of the European Court of Human rights in January, 2013, which sentenced that the detention conditions in Italy constitute a violation of art. 3 of the European Convention on Human Rights (ECHR; so called Torreggiani Case) some countries have refused extradition to Italy, even if in late 2014 things have been changing and it seems that the presumption is restored that Italy, as an EU state, will fulfil its Article 3 obligation.(see below, sub 3).
4. Jurisdiction (jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction).
5. Citizenship of the person in question - some nations refuse to extradite their own citizens, holding trials for the persons themselves.
These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon.
Please note that in case there is no treaty Italy does not extradite its citizens (see Article 26/3 Italian constitution: "Extradition of a citizen can be consented to only in cases expressly provided for in international conventions").
2. Did any court refuse extradition to Italy?
In March, 2014, two UK Courts have stated that
"the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union. This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 ECHR) " (Rancadore Case) .
The Courts recall the the judgment of the European Court (requests nn. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 e 37818/10 Torreggiani and other vs. Italy; shortly Torreggiani Case), which condemned Italy for violation of Art. 3 of the ECHR: the Court held unanimously that Italy had violated Article 3, prohibiting torture and inhuman or degrading treatment, through overcrowding in prisons, refusing extradition to Italy.
Please note that in late 2014, and precisely in its decisions in the cases of Stella v. Italy (application no. 49169/09 + 10) and Rexhepi v. Italy (no. 47180/10 + 7) the European Court of Human Rights, after having examined the new individual remedies introduced by the Italian State following the application of the pilot judgment procedure, the Court considered that it had no evidence enabling it to find that those remedies did not offer, in principle, prospects of appropriate relief for the complaints submitted under Article 3: the Court, consequently, has unanimously declared the applications inadmissible.
More in detail, the cases concerned the issue of prison overcrowding in Italy following the application of the pilot judgment procedure in Torreggiani and Others v. Italy (nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10), delivered by the Court on 8 January 2013. The situation complained of by the applicants concerns about 3,500 applications which are currently pending before the Court and which will be examined at a later date. After having examined the new individual remedies introduced by the Italian State following the application of the pilot judgment procedure, the Court considered that it had no evidence enabling it to find that those remedies did not offer, in principle, prospects of appropriate relief for the complaints submitted under Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. It followed that the applicants? complaint concerning overcrowding in prisons had to be rejected for non-exhaustion of domestic remedies (see n. 4 hereinafter).
2 (a) The Torreggiani Case
(please refer to Torreggiani Sentence - European Court of Human Rights, sentence, January, 8, 2013);
The Court calls on Italy to resolve the structural problem of overcrowding in prisons, which is incompatible with the Convention: the Court's judgment is a "pilot judgment" concerning the issue of overcrowding in Italian prisons. This structural problem has now been acknowledged at national level. The Court called on the authorities to put in place, within one year, a remedy or combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prison. The Court decided to apply the pilot-judgment procedure in view of the growing number of persons potentially concerned in Italy and of the judgments finding a violation liable to result from the applications in question.
At the time the applications were lodged, the applicants - Mr Torreggiani, Mr Bamba, Mr Biondi, Mr Sela, Mr El Haili, Mr Hajjoubi and Mr Ghisoni - were serving sentences in Busto Arsizio and Piacenza prisons. Each of the applicants alleged that he had shared a 9 sq. m cell with two other prisoners, giving them 3 sq. m of personal space each. They complained of a lack of hot water and, in some cases, of inadequate lighting in the cells. On 10 April 2010 Mr Ghisoni and two other inmates in Piacenza prison applied to the judge responsible for the execution of sentences, complaining that their conditions of detention were poor because of overcrowding in the prison, and alleged a breach of the principle of equal treatment between prisoners. In August 2010 the judge upheld their complaints, observing that three prisoners were sharing cells intended for one person. He noted that virtually all the cells in the prison had a surface area of 9 sq. m and that in 2010 the premises, which had been designed to accommodate 178 prisoners and had a maximum capacity of 376, had held as many as 415 prisoners. The judge responsible for the execution of sentences held that the complainants had been subjected to inhuman and degrading treatment as a result of having to share a cramped cell with two other persons, and that they had been discriminated against compared with prisoners being kept in more favourable conditions. The complaint made by the applicant and his fellow inmates was forwarded to the Ministry of Justice and the prison authorities with a request for urgent action. In February 2011 Mr Ghisoni was moved to a two-person cell.
Relying on Article 3 (prohibition of torture and inhuman or degrading treatment), the applicants alleged that their conditions of detention in Busto Arsizio and Piacenza prisons amounted to inhuman and degrading treatment.
The Court reiterated that imprisonment did not entail the loss of the rights guaranteed by the Convention.
It observed that the parties' versions differed with regard to the dimensions of the cells in Piacenza prison and the number of occupants. The applicants said that they had shared 9 sq. m cells with two other prisoners, while the Government maintained that the cells in question measured 11 sq. m and were generally occupied by two persons. Since the Government had not provided it with any information in support of their assertions, the Court examined the issue of the applicants' conditions of detention on the basis of the latter's allegations and in the light of all the information at its disposal.
The fact that the cells had a surface area of 9 sq. m was confirmed by the orders issued by the judge responsible for the execution of sentences. In the absence of any documentary evidence to the contrary, the Court had no reason to doubt the allegations made by the applicants serving their sentences in Piacenza prison, according to which they had each shared a cell with two other prisoners, meaning that they had - like the prisoners in Busto Arsizio - 3 sq. m of living space per person.
The Court found that the applicants' living space had not conformed to the standards deemed to be acceptable under its case-law. It pointed out that the standard recommended by the Committee for the Prevention of Torture2 in terms of living space in cells was 4 sq. m per person.
The shortage of space to which the applicants had been subjected had been exacerbated by other conditions such as the lack of hot water over long periods, and inadequate lighting and ventilation in Piacenza prison. All these shortcomings, although not in themselves inhuman and degrading, amounted to additional suffering.
While there was no indication of any intention to humiliate or debase the applicants, the Court considered that their conditions of detention had subjected them - in view of the length of their imprisonment - to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. There had therefore been a violation of Article 3 of the Convention.
The Court reiterated that Article 463, as interpreted in the light of Article 1 (obligation to respect human rights), imposed on the respondent State a legal obligation to implement appropriate measures to secure the right of the applicant which the Court found to have been violated. Such measures also had to be taken in respect of other persons in the applicant's position, notably by solving the problems that had led to the Court's findings. Hence, in order to facilitate implementation of its judgments, the Court might adopt a pilot-judgment procedure allowing it to clearly identify the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them.
A further aim of the pilot-judgment procedure was to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpinned the Convention system. The pilot-judgment procedure was aimed primarily at ensuring the speedy and effective resolution of a systemic dysfunction and the introduction of effective domestic remedies in respect of the violations in question. It could also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements.
The Court noted that overcrowding in Italian prisons did not affect the applicants alone. It observed that the structural and systemic nature of overcrowding emerged clearly from the terms of the declaration of a national state of emergency issued by the Italian Prime Minister in 2010.
The structural nature of the problem was confirmed by the fact that several hundred applications were currently pending before the Court raising the issue of the compatibility of the conditions of detention in a number of Italian prisons with Article 3 of the Convention.
It was not for the Court to dictate to States their choice of penal policy or how to organise their prison systems; these raised complex legal and practical issues which, in principle, went beyond the Court's judicial remit. Nevertheless, the Court wished to stress in this context the Recommendations of the Committee of Ministers of the Council of Europe inviting States to encourage prosecutors and judges to make use of alternative measures to detention wherever possible, and to devise their penal policies with a view to reducing recourse to imprisonment, in order to tackle the problem of the growth in the prison population (Rec(99)22 and Rec(2006)13).
With regard to the domestic remedies needed to address this systemic problem, the Court observed that, where an applicant was being held in conditions contrary to Article 3, the most appropriate form of redress was to bring about a rapid end to the violation of his right not to be subjected to inhuman and degrading treatment. Where the person concerned had been but was no longer being held in conditions undermining his dignity, he must be afforded the opportunity to claim compensation for the violence to which he had been subjected.
The Court concluded that the Government must put in place, within one year from the date on which the present judgment became final, an effective domestic remedy or a combination of such remedies capable of affording, in accordance with Convention principles, adequate and sufficient redress in cases of overcrowding in prison. It ruled that the examination of applications dealing solely with overcrowding in Italian prisons would be adjourned during that period, pending the adoption by the domestic authorities of measures at national level.
The Court held that Italy was to pay the applicants a total of 99,600 euros (EUR) in respect of non-pecuniary damage, and EUR 1,500 each to Mr Sela, Mr El Haili, Mr Hajjoubi and Mr Ghisoni in respect of costs and expenses
2 (b) The Badre Case
(please refer to Badre v Court of Florence, Italy  EWHC 614 (Admin) (11 March 2014)
Neutral Citation Number:  EWHC 614 (Admin)
Case No: CO/17599/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
MR JUSTICE HICKINBOTTOM
HAYLE ABDI BADRE
- and -
COURT OF FLORENCE, ITALY
Mark Summers (instructed by Birnberg Peirce & Partners) for the Appellant
Hannah Hinton (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 26 February 2014
Lord Justice McCombe:
This is an appeal by Mr Hayle Abdi Badre ("the Appellant") from an order dated 19 December 2013 of District Judge Zani, sitting at the Westminster Magistrates' Court, whereby the learned District Judge ordered the extradition of the Appellant to Italy, pursuant to section 21(3) of the Extradition Act 2003 ("the Act").
The extradition order was made in enforcement of a European Arrest Warrant ("EAW") of 22 May 2013, issued by the Court of Florence in Italy ("the Respondent"). The warrant sought the Appellant's extradition to face one charge of unauthorised financial activity contrary to Article 132 of the Legislative Decree 385/1993 and Article 4 of Law No.146/2006. The initial description of the alleged offence set out in the EAW was that the Appellant had,
"organise[d] and manage[d] unauthorised criminal activity as a financial intermediary for the public collection and the transfer of huge amounts of financial flows to agencies not authorised by the Italian Monetary Authorities".
It is alleged that the offence was committed between 2 September 2011 and July 2012.
The District Judge rejected submissions by the Appellant that (1) the EAW failed to supply the information required by section 2(4) of the Act; (2) the offence charged was not an "extradition offence", within the meaning of sections 10 and 64 of the Act, because it failed to satisfy the dual criminality test; (3) that proceedings were an abuse of process, because, by virtue of "registration" under UK legislation, the Appellant's company was lawfully providing services in Italy; and (4) the return of the Appellant to Italy would constitute a breach of the Appellant's rights under Article 3 of the European Convention on Human Rights, in view of the prevailing prison conditions in Italy (see Torreggiani v Italy (2013) App. 43517, 8 January 2013). At the hearing before us, Mr Summers for the Appellant abandoned ground (3) and I will say no more about it.
For the Appellant, Mr Summers argues that the judge was wrong to reject the submissions which he made, giving rise to grounds (1), (2) and (4) above, and adds a further ground, namely that District Judge Bayne had erred, in her decision of 23 May 2013 at the initial hearing, in finding that there was a sufficient certificate issued by the designated authority in this country in respect of the EAW within the meaning of section 2(7) of the Act. On this additional point, there was brief discussion in argument as to whether an appeal lay in respect of District Judge Bayne's decision on the present appeal from District Judge Zani's order. However, Miss Hinton for the Respondent did not argue that this ground was not open to the Appellant and the point was, therefore, argued before us on its merits.
(B) Background Facts
The Appellant operated, through a company called Sahal Express Limited ("Sahal"), a "payment services" business, enabling the transmission or payment of funds from a payer in one country to a recipient in another country by a system known as "hawalla". The expert evidence before the judge showed this to be a system of payments, developed largely by those of the Muslim faith, in pursuit of the tradition forbidding the receipt of interest on money. The payer provides money to a "hawaladar" in country A. The "hawaladar" provides a credit to a correspondent "hawaladar" in the country B who pays the intended recipient in that country. There is no transfer of money, in a traditional banking sense, and no record of the full transaction is maintained. The system works by way of a mutual off-setting of debts between payer and payee. The precise details of the system do not, however, matter for present purposes.
The legal context of the offence alleged is the EU Directive on Payment Services 2007/64/EC, implemented in this country by the Payment Services Regulations 2009 and in Italy by the Legislative Decree mentioned above. The Directive provides that member states shall require undertakings intending to provide payment services to obtain "authorisation" from a relevant authority before commencing to provide such services (Article 10). However, the Directive (by Article 26) enables member states to waive the criteria for "authorisation" in respect of certain undertakings with a limited average total payment transactions in any month of ?3 million, subject however to a requirement of "registration" of those undertakings in the register provided for in Article 13 of the Directive.
The UK has taken advantage of the "waiver" provisions of Article 26 of the Directive to enable what our Regulations call a "small payment institution" to "register" without seeking full "authorisation". Sahal was such an institution at the relevant times and was registered in the relevant register. Italy has not adopted the waiver provisions and all undertakings operating a payment services business must seek full authorisation. "Authorisation" involves a more formal and rigorous process of scrutiny than "registration". However, it appears that the Appellant, through Sahal, is said to have conducted payment transactions in part in or through Italy, without the appropriate "authorisation" under the Directive and the Italian implementing legislation. In the context of the argument on "dual criminality", however, the Respondent seeks to cast the net wider than the Payment Services Directive in identifying the parallel criminal conduct in this country, so as to include offences under the Money Laundering legislation.
The further particulars of the alleged offence, as set out in the EAW, include the following details,
"?.the suspect is the manager of the company named Sahal Express Ltd, having its headquarters in London, carrying out this activity also through, the system of collection of funds and financial flows typical of the Islamic finance known as "hawala", having branches in more countries.
This company is not entitled to operate in Italy, as financial intermediary, as it lacks the required authorization from the competent national monetary and financial authorities.
Abdi Badre Hayle, managing Sahal Express Ltd, acted in complicity with Mohamed Geddi Bashir and other co-defendants of Somali origin, as the aforementioned Geddi Bashir had been delegated by Abdi in the area of Florence and other places in Italy to manage agencies for the transfer of funds at international level using the system and the business name of Sahal Express, and Abdi Badre came periodically to Italy and in particular to Florence to coordinate the activity of the persons acting under his control and management.
In such a way, Abdi Badre Hayle operated as Sahal Express Ltd also in Italy, even though the company lacked completely the necessary authorizations required by Italian Monetary and Financial Authorities, in particular those granted by the Bank of Italy, a conduct which amounts to the offence of unauthorized financial activity in that not duly authorized and regulated according to the law.
This conduct amounts to the offence provided for in article 132 of Legislative Decree 385\1983 as explained above."
The particulars go on to record the potential vice in the offence alleged, which is said to lie in an ability here to escape from the scrutiny of the financial regulators, thus facilitating terrorism or illegal immigration of persons of Somali origin. The EAW does concede, however, that "no real connection of the defendant and his accomplices with Islamic terrorist groups operating in Somalia could be traced".
(C) The Grounds of Appeal
I will take these in turn, beginning, however, with the additional point raised as to the adequacy of the certificate under section 2 of the Act issued in the present case.
The point here is that the certificate issued by the Serious Organised Crime Agency ("SOCA") is not subscribed with a physical signature in ink, but with an electronic signature in the form "GW (200820)". There is no other dispute about the content of the certificate. It is accepted that in all other respects the document produced is a proper certificate.
Section 2(7) and (8) provide as follows:
"2(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory."
Mr Summers submits that the provision of a proper certificate under section 2 of the Act is a precursor to the validity of the warrant and the subsequent jurisdiction of the court. When a certificate is issued the requested person may be lawfully arrested: see section 3(2) of the Act. The powers of the court, Mr Summers submits, follow on from such an arrest. If the arrest cannot be shown to be lawful the court has no jurisdiction. Mr Summers argues that the process of certification requires the designated authority to scrutinise the warrant to determine that it has been issued by an appropriate judicial authority of a category 1 territory; such a task requires the intervention of a human mind and cannot be performed by a machine. He argues that it is a machine that has purported to issue the certificate in this case.
We were referred to the judgments of the House of Lords in Dabas v High Court of Justice, Madrid  2 AC 31, a case concerning the adequacy of a certificate under section 64(2) of the Act. In that case, it was held that the EAW itself can constitute the "certificate" for the purposes of that subsection. We were referred to certain passages in the speeches of Lord Bingham of Cornhill and Lord Hope of Craighead. At paragraph 8 of his speech Lord Bingham said,
"?the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certification?"
Lord Hope said,
"?The purpose of the certificate, then, is not to provide any further information than that which in a Part 1 warrant is already available. Its purpose is to vouch for, or affirm its accuracy?Any form of words will do, so long as they indicate that the person who authenticates the document accepts responsibility for its accuracy?"
For my part, I do not doubt the importance of the certification requirements in the Act; they must be scrupulously followed. I also accept Mr Summers' submission that it is implicit in the certification requirements that the relevant mind must be properly addressed to the relevant statutory requirements. However, I do not accept his argument that the certificate in this case was provided by a machine. It seems clear to me that it was provided by the designated authority, through its official (with the authenticating initials GW and an identifying code).
We were told that at the initial hearing District Judge Bayne asked for confirmation of the name of the official. It was provided and she satisfied herself that the certificate had been duly provided by that official on behalf of the designated authority, namely SOCA. I would have been prepared to infer as much from the form of the certificate, but the information provided to District Judge Bayne and in a new witness statement before us confirms the position. I do not see that the electronic form of the signature on the certificate detracts from the validity of it, which appears to me to speak for itself from the face of the document.
It is perhaps unfortunate that the electronic age has produced more haste and less speed, because it has thrown up this technical argument where none existed before. It must surely be the easiest task in the world to produce a signature in ink, or at least the full name and designation of the individual certifying and perhaps an official stamp or rubric confirming that that individual does indeed certify the contents of the document to lend some additional force of authority to the certificate that is being produced. I would hope that SOCA would consider either reverting to the old practice of producing these certificates, properly signed by a real person, in the form that was actually used in an earlier warrant in this case (subsequently withdrawn); or at least better identifying the individual making the certification on the face of the document. However, for the reasons given, I would reject this ground of the appeal.
Section 2(4)(c): sufficiency of particulars of the alleged offence
Section 2 (2)(a) and (4)(c) of the Act requires the provision of (inter alia) the following information:
"2(2)(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(4)(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;"
It is trite law that the provision of proper particulars is a prerequisite of the validity of the warrant. Mr Summers argues that the warrant in this case did not provide such particulars. He says that no particulars are given of the funds said to have been raised, the quantum of the financial flows or of the number of transactions concerned.
Mr Summers submits (and I accept) that the statute requires the warrant to provide sufficient particulars of the conduct alleged to enable the accused person to understand the nature and extent of the allegations against him, in order that he may exercise his right to invoke any restrictions upon extradition that may arise and, if surrendered, so that he may ensure that the charge presented does not extend beyond the allegation upon which the extradition was based. Further, says Mr Summers, proof of compliance with the section 2 requirements must be to the criminal standard: section 206 of the Act.
Mr Summers submits that the particulars should at least have contained some indication of the amount of money and the number of transactions involved. He argues that, quite apart from knowing what the precise allegation is, such details could go to the proportionality requirements of Article 8 of the ECHR. He says that we do not know here whether the charge involves ?30 or ?30 million.
We were referred by Mr Summers in his skeleton argument to the judgment of Cranston J (with which Richards LJ agreed) in Ektor v National Public Prosecutor of Holland  EWHC 3106 (Admin) at paragraphs 7 and 8 for the following principles:
i. The description must include when and where the offence is said to have happened and what involvement the person named in the warrant had (§7);
ii. A balance must be struck between the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures (§7);
iii. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence (§7);
iv. The language of the 2003 Act does not connote the specificity or lack of it demanded in the particulars for a count on an indictment (§8);
v. The amount of detail may turn on the nature of the offence (§7);
vi. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place (§7);
vii. Allowance must be made where an EAW has been translated (§8)."
Mr Summers also relies upon the further decision of this court in Von der Pahlen v Austria  EWHC 1672 (Admin) (Dyson LJ, as he then was, and Walker J). It was a case of complicated frauds and the particulars were held insufficient in failing, for example, to identify the victims and the number and size of the advance payments alleged to have been fraudulently obtained.
Miss Hinton for the Respondent submits that the nature of the conduct alleged is sufficiently particularised, in that the crux of the allegation is trading in Italy as a payment institution, in the relevant period without authorisation; the amount of money and the number of transactions are, she argues, immaterial. Indeed, such particulars are eminently ones that are within the knowledge of the alleged offender and not known to the prosecuting authorities.
I believe that there is force in Mr Summers' submissions but, even with the burden of proof as it is, I would have hesitated before allowing the appeal on this ground and I prefer not to rest my decision upon it, in the light of the conclusions that I have reached upon the remaining two grounds.
Under this head, it is argued for the Appellant that District Judge Zani was wrong to conclude that the EAW disclosed an extradition offence under sections 10 and 64 of the Act.
There is no doubt that, in this case, it was necessary for the court to be satisfied to the criminal standard that the conduct said to amount to the commission of an offence would constitute an offence under the law of the relevant part of the United Kingdom (i.e. England and Wales) if it occurred in that part of the United Kingdom: see section 64(3)(b) of the Act.
Mr Summers submits that it is plain from the terms of the warrant itself, and from the further information submitted to the court by the prosecuting authority in Italy, that the charge against the Appellant is one of conducting the relevant business without authorisation under the Payment Services Directive and the relevant implementing legislation in Italy. That is the charge formulated by the warrant, and is copiously confirmed by the further information supplied by the Italian court. Such conduct would not involve the commission of any offence here by an organisation such as Sahal or the Appellant, because there is no requirement for such authorisation under the Directive as implemented by the UK legislation.
Before the District Judge, and in this court, Miss Hinton's argument was and is that it is not necessary to focus upon the Payment Services Directive and the 2009 Regulations, as it is a requirement of the law in this country that payment institutions also register under the Money Laundering Regulations 2007 and that under regulations 26 and 45 it is an offence if this is not done. The District Judge accepted that submission. He said in paragraph 41 of his judgment that,
"?I am satisfied that so far as Dual Criminality is concerned the comparable offence would be s.26 [sic, regulation 26] of the Money Laundering Regulations 2007 which requires registration with the Commissioners, and in default of compliance, renders the person liable to 2 years imprisonment (per s. 45 thereof)."
It seems to me, however, that there is no charge in the present EAW, on which the extradition is sought, of failing to register under the money laundering legislation. That legislation therefore, as Mr Summers submits, is legally irrelevant to the present enquiry.
The specific charge is transacting the relevant business without being "authorised" (a term of art under the Payment Services Directive). The conduct alleged is not merely the trading as a payment services business, but trading without having satisfied the rigorous requirements of Articles 5 to 10 of the Directive (and the Italian equivalent), which lead to "authorisation". The conduct of the business in the UK, without having gone through those hoops, would not necessarily constitute an offence under the law of England and Wales. Accordingly, it seems to me that the court could not be satisfied, to the requisite standard, that section 64(3)(b) of the Act was satisfied.
I accept, of course, that it is not necessary that the foreign offence charged should be "on all fours" with a comparable offence here (Mauro v United States  EWHC 150 (Admin), paragraph 4, per Maurice Kay LJ). However, the question is whether the essence of the conduct would constitute an offence in this country. It seems to me that the essence of the conduct alleged in this case is entirely clear, it is trading as a "financial intermediary" having failed to obtain "authorisation", with all the prerequisites that that entails, under the legislative equivalent of our Payment Services Regulations.
On this aspect of the case, I would finally wish to refer briefly to a point raised by my Lord, Hickinbottom J, in the course of argument. He enquired of Miss Hinton whether the relevant conduct might not be formulated as trading in the relevant business without having complied with the national requirements of the Directive, i.e. in Italy authorisation or here authorisation/registration as appropriate. I did not detect that Miss Hinton espoused the suggestion with any great enthusiasm. In the end, I do not consider that this is the essence of the conduct alleged. As I have said above, I think the essence of the allegation is trading without going through the authorisation process. That is not necessarily an offence here and accordingly, as I have said, section 64(3)(b) is not satisfied to the relevant standard.
I would allow the appeal on this ground.
The final ground of appeal is that the District Judge erred in concluding that there were no substantial grounds for believing that extradition would expose the Appellant to a real risk of being subjected to treatment contrary to Article 3 of the ECHR, by reasons of conditions in the Italian prison estate.
The argument here focuses on overcrowding in the Italian prisons. Mr Summers' outline of the legal background appears in paragraphs 102 and 103 of his skeleton argument as follows:
"102. Prison overcrowding violates international and European prison rules which set the recommended minimum space to be afforded to each detainee. Overcrowding does not, however, necessarily violate Article 3 ECHR. The "minimum level of severity" inherent in Article 3 tolerates some degree of overcrowding. In a case where a country's prison estate has not reached a level of overcrowding that, of itself, violates Article 3, a defendant will have to show that overcrowding had other specific effects in his individual case (such as lack of access to heat, light or sanitary facilities etc.). See, for example, Achmant v Greece  EWHC 3470 (Admin).
103. But overcrowding is capable of reaching such an endemic and serious level (where the prison estate as a whole is so overcrowded that individuals are habitually kept in spaces less than 3m²) that detainees are subjected to a systemic Article 3 violation. Such cases are obviously rare. But they do occur. Amongst the 48 member states of the Council of Europe, until recently, international acknowledgement of such conditions was confined to Russia."
In January 2013, the European Court of Human Rights delivered its judgment in Torreggiani v Italy (requests nos. 43517, 46882, 55400, 57875, 61535 of 09 and 35315 and 37818 of 10). In that case the court considered the cases of seven prisoners in Busto Arsizio and Piacenza prisons respectively. The judgment was a pilot judgment, delivered pursuant to rule 61 of the Court's rules. That rule provides as follows:
"1. The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications."
In its judgment, the court referred to 2010 statistics indicating a total of 67,961 persons held in 206 prisons, with a maximum capacity of 45,000 prisoners, a national overcrowding rate of 151% (paragraph 23). It went on to record the state of emergency, with regard to prison overcrowding, declared by the President of the Council of Ministers for a period of one year. It found that that state of emergency was continuing as at 31 December 2012. By 13 April 2012, the number of persons held was 66,585, an over-crowding rate of 148% (paragraphs 28 and 29). The court recognised the steps taken and being taken by the Italian authorities to improve conditions in the prisons. However, dealing with the admissibility arguments, the court concluded:
"55. In view of these circumstances, the Court considers that it has not been demonstrated that the action indicated by the government, taking particular account of the current prison system situation will be effective in practice, i.e. likely to prevent the continuation of the alleged infringement and ensure an improvement in the applicants' physical conditions of detention. Therefore, they were not obliged to exhaust things before applying to the Court."
On the merits of the cases and the applicability of the pilot judgment procedure, the court's conclusions in paragraphs 87 to 89 of the judgment, were as follows:
"87. The Court has observed that prison overcrowding in Italy does not concern only the applicants' case (paragraph 54 above). It notes in particular that the structural and systemic nature of prison overcrowding in Italy is clearly evident from the statistical data indicated above and from the terms of a national state of emergency declaration made by the President of the Italian Council of Ministers in 2010 (paragraphs 23-29 above),
88. The combination of these data shows that the breach of the applicants' right to benefit from adequate conditions of detention is not the result of isolated incidents but arises from a systemic problem, which results in turn from a chronic malfunction particular to the Italian penitentiary system, which has affected, and is likely to affect again in the future, many people (see mutatis mutandis, Broniowski v. Poland, cited above, §189).According to the Court, the situation found in the present case therefore constitutes a practice incompatible with the Convention (Bottazzi v. Italy [GC], No 34884/97, §22, ECHR 1999-V; Bourdov (No.2), above, §135).
89. Furthermore, the structural nature of the problem identified in these cases is confirmed by the fact that several hundreds of requests directed against Italy and raising a problem of compatibility with Article 3 of the Convention for inadequate conditions of detention related to overcrowding in different Italian prisons are currently pending before it. The number of such requests continues to increase."
With regard to more recent measures, the court said this (at paragraph 92):
"92. It notes that the Italian State has recently taken measures likely to contribute to reduce the phenomenon of prison overcrowding and its consequences. It welcomes the steps taken by the national authorities and cannot but encourage the Italian State to continue its efforts.
However, it must be observed that, in spite of the legislative and logistical efforts made by Italy in 2010, the national rate of overcrowding was still very high in April 2012 (reduced from 151% in 2010 to 148% in 2012). It notes that this mitigated balance sheet is of particular concern as the emergency plan of action prepared by the national authorities is limited in time with the end of works for construction of new prisons planned for the end of 2012 and that the sentence enforcement provisions, extraordinary in nature, shall apply only until the end of 2013 (paragraph 27 above)."
The court decided that satisfactory remedial measures had to be put in place within one year from the date on which the judgment became definitive.
Italy's application for referral to the Grand Chamber of the Court was refused and the judgment became final on 27 May 2013.
The Article 3 test in an extradition case is that it is for the requested person in an extradition case to show that there are substantial grounds for believing that he or she, if extradited, would face a real risk of being subjected to treatment contrary to the Article: Saadi v Italy (2009) 49 EHRR 30, at paragraph 140. The burden is less than proof "on the balance of probabilities", but the risk must be more than fanciful. This was the test which the District Judge adopted in his judgment, in my view correctly.
It is also the case that there is a strong, but rebuttable, presumption that in the case of a member state of the Council of Europe that such a state is able and willing to fulfil its obligations under the Convention. To rebut the presumption, it will often be necessary to adduce evidence from a number of recognised sources that the presumption ought not to be applied. Something "approaching an international consensus is required": see Krolik v Polish Judicial Authorities  1 WLR 2013 (Sir John Thomas P, as he then was, and Globe J), concerning conditions in Polish prisons and the applicability of Article 3.
The problem for the Respondent in the present case is that the European Court, in a pilot judgment as recently as January 2013, has found that there was a systemic problem in the Italian penitentiary system, resulting from a chronic malfunction.
This court is bound by statute to take into account that judgment in considering whether the Appellant in this case should have been held by the court below to have satisfied the burden of showing that there were substantial grounds for believing that there was a real risk of infringement of Article 3, if the Appellant were to be extradited: see section 2 of the Human Rights Act 1998.
As is well known, and recently much debated, the requirement to take the judgment into account does not necessarily mean that the judgment has to be followed. However, in the present case, I consider that the judgment does provide a very clear rebuttal of the presumption that might otherwise apply to this court's view of extradition to Italy as a member state of the Council of Europe and of the European Union. Where there is evidence that the relevant risk exists, it is for the requesting state to dispel any doubts: see the Saadi case (supra), at paragraph 129.
In response to a direct question from the bench, Miss Hinton said that she was not submitting that there was not a continuing systemic problem in the Italian prison estate. That seems to me to have been a correct concession on the evidence before the court. We have seen a letter dated 15 November 2013, sent to "the UK Liaison Magistrate in Italy" in the context of this case reporting upon continuing efforts in Italy to meet the requirements of the judgment of the European Court in Torreggiani (supra). The letter reported upon a visit by the Italian Minister of Justice to the President of the European Court on 5 November 2013. The letter included the following,
"?The Minister expressed that awareness of the necessity to remove the prison conditions which may be defined as inhuman or degrading has been acknowledged by the highest Institutions of the Country. By means of an exceptional procedure, which Article 87 of our Constitution reserves for situations of absolute national relevance, the President of the Italian Republic sent a message to Parliament ? the first of his long Presidential term ? so as to invite the legislature to promptly consider the "fact of exceptional importance constituted by the European Court of Human Right's [sic] decision" and "of proceeding to an internal remedy which may offer a restoration for the overcrowding conditions already suffered by prisoners?"
The letter then proceeds to set out steps being taken and to be taken to ensure compliance with the European Court's requirements, as expressed in the judgment. The letter did not suggest that those requirements had already been met.
It seems to me, therefore, that to dispel the doubts that must be found to have arisen in the present case, the burden was on the Respondent to provide evidence to satisfy the court that the relevant real risk of incarceration in conditions contrary to Article 3 did not arise in the particular case of the Appellant. The court could not, in my judgment, be satisfied by the general presumption.
Miss Hinton relied upon a letter of November 2013 from the Italian Ministry of Justice to the Liaison Magistrate in these terms;
"RE: ABDI BADRE Hayle, born on 24 October 1960. European Arrest Warrant
Our Ministry assures you that should the Somali national ABDI BADRE Hayle be surrendered by the Authorities of the United Kingdom of Great Britain and Northern Ireland under the European Arrest Warrant, he will be kept in conditions complying with the provisions of Article 3 of the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950 as modified on 11 May 1994.
Following his surrender ABDI BADRE Hayle shall not be necessarily incarcerated in the Detention Institution of Busto Arsizio or Piacenza in that he can be imprisoned in other correctional institutions."
We were referred by Mr Summers to the decision of the European Court, in a very different context, in Othman (Abu Qatada) v UK (2012) 55 EHRR 1. The court there examining some of the appropriate questions that it may be appropriate to ask, when faced with assurances that real risks of ill-treatment will not be turned into reality in a particular case, said this in paragraph 189 of its judgment (omitting the references to the previous cases to which the court referred):
"189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(i) whether the terms of the assurances have been disclosed to the Court?.;
(ii) whether the assurances are specific or are general and vague?;
(iii) who has given the assurances and whether that person can bind the receiving State;
(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;
(v) whether the assurances concerns treatment which is legal or illegal in the receiving State;
(vi) whether they have been given by a Contracting State;
(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State's record in abiding by similar assurances;
(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;
(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(x) whether the applicant has previously been ill-treated in the receiving State; and
(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State?."
Here it seems to me that questions (i), (ii), (iv), (vi), (vii) and (viii) at least are of some assistance.
The assurance produced by the Respondent here, in the November 2013 letter, is certainly general and not specific and, although given by central government, nothing is said about conditions locally where the Appellant may be detained while in Italy. On the other hand, and Miss Hinton emphasised this, the assurance is given by a contracting state to the Convention and of long-standing friendly status vis-à-vis this country.
In my judgment, the District Judge was wrong to be satisfied by this general letter of assurance. It is of discomfort that the letter does not even give an assurance that the Appellant would not be housed at one of the two prisons whose conditions were called into in question in the Torreggiani case itself. The failure to give such an assurance is, to my mind, a serious weakness, reflecting upon the letter as a whole.
Mr Summers stated expressly that he did not call into question the good faith of the Italian authorities in offering the assurance and in seeking to better the situation in Italian prisons. However, he submitted that, given the acknowledgment of a continuing systemic Article 3 problem in the letter of 15 November 2013 (just over a month before the decision below)(which was also accepted by counsel before this court,) we should not uphold the District Judge's decision.
In my judgment, Mr Summers' submission is correct. I am far from saying that in no case can a court in this country safely order an extradition to Italy. Like Mr Summers, I do not call into question for one minute the good faith of the Italian authorities in writing the letter that they did. However, it seems to me that, on the specific facts of this present case, the judgment of the European Court, together with the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union. This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 and the Respondent has not produced sufficient material to dispel that belief.
For my part, I would have expected at least some information as to whether bail might be available to the Appellant in Italy and on what terms, and, if not available or if not likely to be granted, some information as to the specific institution or type of institution in which the Appellant would be confined and some information as to the prevalent conditions in that institution or those institutions.
While I accept that the Respondent in good faith has sought to provide satisfactory assurance to the court, in my judgment, the material provided, in this particular case, is not sufficient for the purpose.
In my judgment, therefore, I consider that this appeal should be allowed on this ground also.
Before leaving this part of the appeal, however, I must address one further matter.
In the course of her submissions on this ground of appeal, Miss Hinton said that, if this court were inclined to allow the appeal on this ground, she would apply and did apply now for an adjournment to take instructions from the Respondent as to whether any more specific assurances as to compliance with Article 3 could be offered to meet the court's concerns.
Mr Summers opposed the application. He argued that to grant an adjournment would be tantamount to permitting the Respondent to adduce fresh evidence on the appeal and that should not, therefore, be permitted. The issue as to Italian prison conditions was first raised a very long time ago. His client had been kept in custody for three months following arrest and had subsequently been subjected to stringent bail conditions. He argued that the issue as to prison conditions was well known to the Respondent and it had had ample time to present appropriate assurances to the court; it should not be permitted to boost its case at this late stage.
We considered the application for the adjournment and, at the end of the hearing, we announced our decision to refuse it. We indicated that we would consider the substantive ground of appeal on the existing materials.
Our refusal of an adjournment was based, for my part, on an acceptance of Mr Summers' submissions on the point. In my view, it was far too late in the day for the Respondent to supplement its case in this way. Our task is to judge whether the District Judge was correct to decide to order the Appellant's extradition on the materials before him. There was no good reason to allow the Respondent to add to its evidence in the manner proposed.
(D) A point of practice
The arguments of Counsel, both written and oral, made copious reference to provisions of the Act. However, notwithstanding the submission of bundles containing a very large number of reported cases, we were not provided with copies of the relevant provisions of the Act. It would be more helpful for the future in extradition cases, if Counsel would be so kind as to provide, with the authorities, copies of any parts of the Act which they consider to be relevant.
For the reasons given, I would allow the appeal.
Mr Justice Hickinbottom:
For the reasons given by my Lord, McCombe LJ, I too would allow this appeal. Given that I set a different hare running, I expressly align myself with his finding at  above, that the essence of the allegation in the warrant here is trading without EU Directive authorisation.
In respect of prison conditions in Italy, my Lord has set out clearly and comprehensively why the appeal must be allowed on that ground. I agree with that analysis, and add the following only because we are disagreeing with the learned District Judge and it is important, in my view, to emphasise what I see to be the scope and limits of my decision on the facts of this case.
There is a strong but rebuttable presumption that signatories to the European Convention on Human Rights will comply with their obligations under that instrument. There is thus a presumption that, where an individual is extradited to a signatory state, he will not be subject to any breach of his Article 3 or other human rights, if he is detained on return. However, where the European Court of Human Rights has made a finding in a pilot judgment that the prison regime of a state is in systemic breach of Article 3, absent other specific evidence, there is a risk that, if detained in that prison system, a returned individual will be subjected to prison conditions that breach his human rights. Of course, it is open to that state to adduce evidence that there is no such risk. For example, it could produce evidence that, since the pilot judgment, prison conditions have improved, so that there is no longer a systemic problem with them; or give an assurance that, if the individual is returned and then detained, he will be kept in a particular prison (or in one of a number of identified prisons) which does not suffer from the general problem identified by the European Court.
However, whilst I fully accept the good faith of the Italian Government, like my Lord, I am entirely unpersuaded that the assurance given in this case is sufficient. We know from the face of the warrant that the Appellant, on any return, is due to be remanded in custody. Miss Hinton, rightly, conceded that, on the evidence before us, it would not be open to argue or find that the prison conditions in Italy had improved to such an extent that there is no longer a systemic problem with them. However, the assurance given does not say that the Appellant, if returned, will not be subject to that general regime; and it expressly allows the real possibility of the Appellant being detained in one of the two Italian prisons that were the particular subject of the Torreggiani case. It does not on its face show that any thought has been given to the practicalities of ensuring that, in the light of Torreggiani, if returned the appellant will not be exposed to prison conditions that are in breach of Article 3. Whilst of course every case will be fact specific, in my view, in the face of a pilot judgment identifying a systemic failure of a state's prison system, a simple assurance from that state that the Article 3 rights of an individual (who, if returned is at risk of being detained) will not be breached, will, without more, rarely if ever be sufficient to persuade a court that there is not a risk of such a breach.
By allowing the appeal on this ground, I find that it is important to state that, in my judgment, this does not mean that, in the period in which Italy seeks to resolve the systemic prison problems identified by the European Court, individuals cannot be extradited there from the United Kingdom. Miss Hinton sought an adjournment, to enable further instructions to be taken in terms of a more specific assurance than that already given. That application was refused, for the reasons given by McCombe LJ; but the fact that it was made suggests that more consideration might have been given to the terms of the assurance in this case. To overcome the consequences of Torreggiani, one would expect to see an assurance that (e.g.) the individual, if returned to Italy, would be detained in a particular prison, with an indication of the conditions in that prison and why they are not open to the criticism of Italian prisons in general. Where there is an assurance of some specificity, the presumption that a signatory state will comply with its assurances will once more apply. However, for the reasons given above, the assurance in this case is insufficient to persuade me that, if the Appellant were returned to Italy, he would not face the risk of being exposed to prison conditions that would breach his Article 3 rights.
Note 1 Appeal Bundle, tab 16. [Back]
Note 2 Of HM Revenue and Customs [Back]
Note 3 The date is not clear, but appears to be November. The English translation is clearly dated 5th November 2013. [Back]
2 (c) The Rancadore Case
(please refer to Rancadore v The Court of Appeal, Palermo, Italy)
Judge Howard Riddle, Senior District Judge (Chief Magistrate)
In the Westminster Magistrates? Court
The Court of Appeal, Palermo, Italy
Findings of fact and reasons
This is an application by the judicial authority in Italy (represented by Miss Hannah Hinton) for the extradition of Mr Domenico Rancadore (represented by Mr Alun Jones QC). Italy is a category 1 territory for the purposes of the 2003 Extradition Act and this hearing is considered under Part 1 of the Act. The application is opposed.
Preliminary issues including identity were not in dispute, and have been determined at an earlier hearing.
The warrant I am dealing with was issued by Dr Roberto Scarpinato Magistrate/Prosecutor General attached to the Court of Appeal, Palermo, on 9th August 2013. It was served on Mr Rancadore the same day. An earlier warrant, issued by the deputy prosecutor general in January 2012 and on which the defendant had originally been arrested and brought to court, was discharged.
The hearing was originally set for October 2013, but was broken as the requesting authority sought further information from Italy. I heard evidence on 20th and 21st February 2014, and further argument the following week. I prepared this judgment for delivery on 17th March. After completing my judgment I learned of the decision of the Administrative Court in Badre v Italy  EWHC 614 (Admin). Badre was heard shortly after this case, but judgment was delivered earlier, on 11th March. Having considered Badre, I must change my decision. On reflection I have decided to leave this judgment exactly as I originally intended to deliver it, but with the addition of this paragraph and new final paragraphs, and a different decision.
Is the warrant valid?
The first two matters I am asked to decide are whether the warrant is valid and whether there has been an abuse of process.
It is argued that the warrant does not comply with section 2 Extradition Act, as it lacks the details required by s2(6), is unspecific, and inconsistent with the one it replaced. The replacement warrant contains ?such hyperbole that it is seriously and, apparently deliberately, misleading?.
The warrant says that the offences took place in Palermo from 17th December 1987 to 13th April 1995. The earlier warrant said the same. Although a wide time span, in the circumstances this is sufficient, and I do not understand Mr Jones to argue otherwise. Both warrants say the conviction is under article 416 bis paragraphs 1,4 and 6 of the Criminal Code: Criminal Association of the Mafia?type. The new warrant provides further details. Both specify a sentence of 7 years? imprisonment. This is all correct.
The current warrant has four paragraphs about the circumstances in which the offence was committed, and the degree of participation. On the face of it the statement of facts is reasonably clear, and meets the requirements of s2. The defendant can find further details of what he has been convicted of from the lawyers who represented him at the time and he has, indeed, obtained the transcript (albeit after some delay). I understand the transcript of this trial (and two other trials that ended in acquittals) was obtained to see whether there is a double jeopardy argument. That argument has not been pursued, but Mr Jones has taken me through the transcript to show that the warrant does not reflect ? or more especially exaggerates ? the participation of which the defendant has been convicted.
The same facts underlie the abuse argument. I will deal with them together.
I have been provided with transcripts (in an English translation) of three trials involving Mr Rancadore as a defendant. It is trial two that is relevant here. In that trial he had been declared a fugitive, but was represented by a lawyer, Mr Bellissimo. On 9th June 1998 the Court of Palermo declared Domenico Rancadore guilty ?of the crime set out in art 416(a), including that set out at comma 4 and 6 of the Criminal Code?. We went through the transcripts in court. I found them difficult to absorb in that way, and told the parties I would read them carefully outside court. This I have done.
The trial heard from witnesses who gave evidence of their involvement in mafia crime, including extortion and murder. A number of witnesses placed this defendant as a ?man of honour?, a member of the mafia. One described him as head of the Trabia mafia family, and describes taking to him a kickback from a government contract. The court concluded that he was an important point of reference for the people at the top of the organization and representative of the Trabia area. He was found guilty of mafia type criminal association, as opposed (as I understand it) to specific typical mafia type actions. Membership, as a man of honour, implies an obligation ?to increase the ability of the family to subtly and violently infiltrate the social fabric?. An aggravating circumstance was that the group had access to weapons and uses them. Mr Rancadore was sentenced to nine years in prison, with a year on probation after his release, because it had been shown that he belongs to an extremely dangerous armed mafia type organization [p70 transcript].
That conviction was appealed. Mr Rancadore was not present at the appeal, but was represented by Mr Bellissimo, again, and by Mr Barone. The evidence against this defendant was considered [from p96?p115 in transcript]. The appeal court, in its judgment dated 21st July 1999, upheld conviction on the basis of participatory conduct in Cosa Nostra ?by far the most dangerous of the mafia organizations?. However, although the evidence showed that he ?firmly adhered to the heart of the mafia fellowship?, information is lacking about his ?particularly prominent and effective position within the organization?and, above all, the involvement of Rancadore himself in serious crimes of violence?. To this extent the appeal was successful, and sentence was reduced to seven years in prison (including two years for the aggravating circumstances in paras 4 and 6 of the Criminal Code).
It therefore appears that although the statement of facts in the EAW is justified by the summary of the first?instance trial, they may well overstate the position as found on appeal. The description as ?head of the organization? does not seem justified by the judgment, and the descriptions of ?one of the heads? and ?leading role? and much of paragraph three of the warrant are hard to justify from the appeal judgment. I add that the sentence imposed is at the bottom end of the scale as set out in the warrant, even without the aggravating features found. All this was confirmed in evidence before me by the lawyer at the appeal hearing, Mr Barone. He said the facts as set out in the warrant would have led to a much longer sentence.
As far as section 2, the validity of the warrant, is concerned, the law has been helpfully set out for me by Miss Hinton in her skeleton argument. As a general rule, this court is bound to take the statements and information in the warrant at face value. The validity of the warrant depends on whether the prescribed particulars are in it, and not on whether they are correct. Extraneous evidence, such as the transcripts I have here, in these circumstances cannot be used to show that the statements in the warrant are wrong.
Sufficient details of the underlying offences have been provided to enable the defendant to understand what he has been convicted of and to enable him to consider whether any bars might apply. The level of participation is provided.
This warrant is valid.
Abuse of Process
An allegation of abuse of process is made by the defendant. The conduct alleged to constitute the abuse is that the warrant contains such serious hyperbole that it is seriously and, apparently intentionally, misleading. I must consider whether this conduct, if established, is capable of amounting to an abuse of process. If it is, I must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then I should not accede to the request for extradition unless I am satisfied that such abuse has not occurred.
For some years now, it has been accepted that a magistrates? court cannot permit the manipulation of the procedures of the court in a way intended to oppress or unfairly prejudice a defendant. If such manipulation had occurred here, it would be capable of amounting to an abuse.
Here I am satisfied that there has been no manipulation or unfair prejudice. There may well have been a mistake, or overstatement of the role, in the warrant. (I should add that the transcripts were not, at least to me, immediately clear as to what had and had not been found. No doubt unfamiliarity with the Italian system and the effect of translation both played a part. I could have asked for further information from Italy. However, I was helped by Mr Barone, and have no reason to doubt his evidence.) Nevertheless, even if the warrant misstates the participation, as I accept it does, there is no obvious unfairness or manipulation. The facts as found by the appeal court are sufficient to make out the framework offence of participation in a criminal organization. The person?s involvement by association could have been supplied, without overstatement, and still have complied with the Act.
Mr Jones argues that there was prejudice as far as bail was concerned. When bail was refused by the Divisional Court, the court was told of the facts as asserted in the warrant, including that he was one of the heads of the armed criminal organization, Cosa Nostra. However, it is clear from the reasons given by the court that the key factor was the likelihood that Mr Rancadore would flee, based on evidence that he deliberately left Italy and went into hiding, doing all that he could to avoid detection. It was found that he has every incentive to try to avoid serving the seven?year sentence imposed and the resourcefulness to achieve it. It is the seven?year sentence (rather than simply the conduct) and the fugitive status, that informed the frankly unsurprising decision to refuse bail.
I am satisfied there is no manipulation designed to treat Mr Rancadore unfairly. I am aware of dicta in Zakrzewski v Lodz  UKSC 2 that appear to widen the abuse test beyond the traditional test. In particular para 13 of that case suggests that an abuse might be founded or misleading (though not necessarily intentionally misleading) statements in the warrant. In Haynes v Malta  EWHC 880 it was accepted that a mistake had been made in the warrant, which referred to three charges of GBH, when there were only two. The Divisional Court concluded [para 18] that ?the whole saga smacks plainly of carelessness and mistake rather than any deliberate attempt to mislead the English court?. There were no reasonable grounds for believing that the judicial authority had acted, or may have acted, in bad faith and in such a way as deliberately to mislead the English court. More recently, in Aleksynas and others v Latvia  EWHC 437 the court said [para 80] that the courts have characterized abusive conduct in slightly different ways, but nevertheless the paradigm manifestation of such conduct is bad faith. The court rejected the defence argument on the basis that bad faith could not be shown.
Unlike the higher courts, a magistrates? court has no inherent jurisdiction. Such abuse of process jurisdiction as we have has been acknowledged expressly (though exceptionally and not without controversy) by the higher courts. It may very well be that in due course the Zakrzewski test will be approved explicitly to be applied by this court. Until then, I am reluctant to assume a wider inherent power than has previously been decided. Even if I am wrong about that, the mistake that appears in the warrant is neither clear and beyond legitimate dispute (observation 2 in Zakrzewski) nor material to the operation of the statutory scheme in extradition proceedings (observation 3 in Zakrzewski).
There has been no abuse of process.
Mr Rancadore has been convicted and sentenced (after an appeal) to seven years? imprisonment for membership of a criminal gang, which is an extradition offence because the framework list is ticked. As I am satisfied that the specified offence is an extradition offence I must go on to consider whether any of the bars to extradition specified in section 11 are applicable.
Rule against double jeopardy
A person?s extradition to a Category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption (
a) that the conduct constituting the extradition offence constituted an offence in England and Wales.
(b) that the person was charged with the extradition offence in England or Wales.
This argument has not been pursued.
Passage of time (s14)
A person?s extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have:
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large ( where he is alleged to have been convicted of it).
?Unjust? is directed primarily to the risk of prejudice to the accused in the conduct of
the trial itself, ?oppressive? is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.
To help me consider this bar, and other arguments, I have considered whether Mr Rancadore is a fugitive.
Some time before 17th December 1996 Mr Rancadore was declared a fugitive in Italy,
and the trial proceeded in his absence, with him represented by Mr Bellissimo. When Mr Barone, who appeared in the appeal (together with Mr Bellissimo) was asked in cross?examination by Miss Hinton why he did not challenge the fugitive status at the appeal hearing, he replied that he couldn?t. ?It is a fact.? He was not there, and there had been an arrest warrant and a failed search.
At the appeal hearing, the defence lawyers were appointed by a document bearing the signature of ?Rancadore Domenico?. I understand that at the time it was a requirement that a lawyer on appeal be specifically appointed in this way. A copy of the document, called a special power of attorney, was filed with the court. It was produced by the Ministry of Justice in Rome after it had become clear that Mr Rancadore said in his proof that he had no knowledge of the Palermo appeal proceedings. On oath the defendant denied that he had signed the document. He did not know he had been convicted and had no contact with the lawyers about any appeal. He did not know of the sentence or the appeal until arrested here on the EAW. He denied the statement in his proof that he heard that he had received seven years? imprisonment in about 2002, probably from the internet. (His English, he said, is not very good.) However, he had heard, from papers and TV in about 1996 or 1997, that a trial had started in 1996.
Both Mr Barone and Mr Bellissimo had signed under the signature ?Rancadore Domenico? as a true signature. Mr Barone said they did so after verifying the signature from other documents held by Mr Bellissimo. He never met the defendant in the course of the appeal, and did not receive any other specific instructions from him. As a result there was a limit on the extent he could challenge the prosecution evidence. He did not have an opportunity to advise his client on the advantages of a short trial, where the penalty is reduced. He was paid by a relative, Mr Vuole, who has since died. Mr Vuole attended some hearings, but not all of them. Mr Barone has never doubted that this was a true signature representing true instructions. As he said: ?Who else would benefit??
Daniela Skinner (nee Rancadore) states in her proof that she believes a former boyfriend told the UK police that her father was Domenico Rancadore and that he had been convicted in Italy for mafia association. That information can only have come from the Rancadore/Skinner family.
Mr Rancadore and his wife both gave evidence that he came to England in 1994. He never returned to Italy or Sicily, and had no contact with his family there. Miss Hinton does not dispute that he came to England in 1994. This means he came here before these proceedings were instituted in Sicily.
Mr Rancadore is married with two children. His wife and children were born here (Giuseppe in 1977 and Daniela in 1979). For some years the family moved between Sicily and the UK. Mrs Rancadore says (and her evidence was not challenged) that Mr Rancadore moved back to the UK permanently in early 1994. He stayed with her parents until he could find a place for the family to live. She and the children moved back to London in the summer of 1994. Shortly afterwards they changed their names from Rancadore to Skinner, Mrs Rancadore?s mother?s name. She produced two documents dated 30th June 1994 and sworn in front of a priest, changing her name and that of Daniela, from Rancadore to Skinner. She also produced copies of passports for her and for Daniela issued on 2nd August 1994 in the name of Skinner. The defendant tells me he also swore his name change in front of a priest, and that his wife had the document. That document was not produced at the hearing on 21st22nd February, but was produced before final submissions on 28th February. The name?change documents are unusual ? I have never seen anything similar, and there is the unexplained fact that the name Domenico does not appear in the typed text, only the signature ? but it is sufficient to say here that it seems unlikely that these documents (and especially Mr Rancadore?s) would ever come to official attention, at least unless further action was taken on them.
The requesting authority has asserted since the arrest last August that for nearly 20 years it was almost impossible to trace Mr Rancadore. No identity documents were found on arrest. The house is in his wife?s name. There is no national insurance number. There are no work records. He has no passport. There is a paper driving licence (for which no proof of identity is required) in the name of Mark (or Marc?, he appears to have used both spellings) Skinner, but no new?style driving licence. In short, they say he has lived here without trace for 20 years, actively avoiding coming to the attention of the authorities.
The defendant has not produced any documentary evidence to refute these assertions. Apart from the name change document, he appears to accept them. On oath he said he has no ID documents in his name. (It should be noted that he had bank cards in the name of Mark Skinner at the time of his arrest.)
It is common ground that when Mr Rancadore came to London in 1994 he was free to do so ? the earlier trial had concluded and the current proceedings had not begun. He says in his proof that as soon as he was eligible for his pension from his work as a teacher in Sicily, he left the country to avoid the stigma of being associated with his father?s name. On oath he said he had no contact with his family there, or indeed anyone else (which his wife says was hard for him). ?I never gave my address to anyone in Italy.? He said his experience of the maxi?bis trial was terrible, he was not secure and he was worried they would arrest him again. Coming to England would give a better life to the children. In cross?examination he said again that he was worried about being arrested.
It may be of note that Mr Rancadore told me of a flight to the USA to visit a relative, when he was refused entry by the American authorities.
From this evidence I conclude that:
? When Mr Rancadore left Sicily for the final time in 1994 the current proceedings had not commenced, and he was free to leave.
? Nevertheless a prime motive for coming was to avoid arrest and detention in Italy.
? The only explanation for his living scarcely without trace for 20 years is that throughout that time he wanted to avoid arrest and detention.
? He knew of the proceedings from at least 1996. He instructed lawyers to appeal against conviction. I accept the evidence of Mr Barone. He was satisfied that the instructions, such as they were, came from this defendant, and so am I.
? It is untrue that he did not know the result of the appeal. He knew he was wanted to serve a sentence of seven years. It is inconceivable that he would know of these proceedings against him, from TV, papers, Mr Vuole, possibly his uncle in the USA, but not learn the result. Had he been acquitted of all charges (and he was acquitted of one of the charges, and in the other two trials ? one in his absence) he would have been able to live here openly. He could have resumed his relationship with his family in Italy without fear that the authorities would want to trace him through his family.
b. Decision on passage of time
Everything happened a very long time ago. The offences date back over 20 years. The defendant came to England in 1994. The trial and appeal were concluded 15 years ago. In 1994 his children were teenagers, now they are grown up.
In an ordinary case such a delay would be oppressive. This is not an ordinary case. Mr Rancadore went to quite extraordinary lengths to avoid detection. He and his entire family changed their names. He lived here, as observed above, virtually without trace.
Criticism has been made of the Italian authorities for not tracing him to the UK and issuing the EAW earlier. I do not think that criticism has weight. In his appeal authority to Mr Barone he gave his Italian address. Both the Italian and the UK authorities (DC Dossett) tell me extensive enquiries were made. Even if this were the not the case, my decision would be the same. It is not open to someone who has used considerable resourcefulness to hide successfully, then to complain that the authorities did not find him earlier. ?There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive?s return. If it were then open to the fugitive to pray in aid such events? it would tend to encourage flight rather than? discourage it.? Le Torre, cited below.
Even though Mr Rancadore came to London before these proceedings began in Italy, he is a classic fugitive. I am aware that the facts of this case go beyond those in, for example, Hertel  EWHC 2305, where it was said [para 21] that; ?the distinction between an awareness of the proceedings on the one hand, and a deliberate flight from justice on the other, which is of its nature fragile, collapses on its facts?. However the same principles apply and the reasons in Le Torre  EWHC 137 at para 27 also apply. The delay is entirely, or almost entirely, of his own making. He knew of proceedings and avoided them. It is important to minimize the incentive to flee. Extradition is neither unjust nor unfair. It is not oppressive. (See also article 8 below.)
Conviction in absence
Section 20 of the Extradition Act 2003 provides:
1) If the judge is required to proceed under this section ... he must decide whether the person was convicted in his presence.
2) If the judge decides the question in subsection 1 in the affirmative he must proceed under section 21.
3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
4) If the judge decides the question in subsection 3 in the affirmative he must proceed under section 21.
5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
6) If the judge decides the question in subsection 5 in the affirmative he must proceed under section 21.
7) If the judge decides that question in the negative he must order the person?s discharge.
8) The judge must not decide the question in subsection 5 in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights ?
a. the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interest of justice so required;
b.the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
This person was convicted in his absence and is not entitled to a retrial or (on
appeal) to a review amounting to a retrial. I must decide whether the defendant
deliberately absented himself from his trial. In Italy a defendant is not obliged to
attend his trial, and Mr Barone said it can be in a defendant?s interests not to attend
(for example to avoid confrontation by witnesses, or cross?examination).
I am satisfied he was deliberately absent from his trial, and decide the question in subsection 3 accordingly. He certainly knew of proceedings from 1996, and there is direct evidence (that I accept) that he instructed lawyers in the appeal. The only inference that can be drawn from his behaviour over 20 years is that he was hiding from the Italian authorities to avoid detention and trial. When I look at the facts as a whole I am satisfied he had the interest, contacts and resourcefulness to know about proceedings against him from an early stage, and chose not to participate.
Having decided this question in the affirmative I must now proceed under section 21.
Section 21 Human Rights
As the issues arising above have been decided adversely to the defendant, I must decide whether extradition would be compatible with the defendant?s Convention rights within the meaning of the Human Rights Act 1998. If it would not be so compatible, the defendant must be discharged. The defence argues that extradition breaches articles 3 and 8.
The defence evidence and argument
The article 3 argument revolves around prison conditions in Italy. In Torreggiani and others v Italy [8th January 2013] the ECHR in Strasbourg found that there had been a breach of article 3, based on overcrowding. Although the court concentrated on conditions in two named prisons, this was a pilot judgment. The court found that the breach was not isolated, but arises from a systemic problem that is likely to affect many people. The court ruled that Italy should, within a year from May 2013, establish plans to address prison overcrowding. On 8th October 2013 the President of the Republic sent a formal written request to parliament in which he talked about ?the dramatic situation in Italian prisons?, the humiliating position on the international arena for ?the very many violations on the ban of inhuman and degrading treatment?, and calls for immediate action.
I have considered the judgment in Torreggiani, have considered expert reports, and heard from Patrizio Gonnella, called by the defence. Mr Gonnella has extensive experience of Italian prison conditions. He is managing director, or president, of Antigone, an NGO dealing with human rights protection in the prison system. His association is authorized to visit all prisons in Italy. He is also a jurist and previously worked as a deputy warden of prisons in Padua and Pisa. He is undoubtedly an expert.
Mr Gonnella adopted two reports, which I need not summarize in any detail here. He told me that ?for the ECHR cell space of less than 3 square metres for any prisoner in any case means a violation of article 3.? Beyond that minimum requirement other factors, such as hot water, lighting, food and hours in the open air, are relevant. He told me about cases demonstrating that Italian magistrates have been fighting against inhuman conditions in jails. He told me about the operation of the system for high security prisoners. For Mr Rancadore there is a real risk he will be detained under this regime, 41 bis. 41 bis has been criticized in the past for attempting to break a prisoner?s resistance and in 2007 an American judge refused extradition of an Italian citizen wanted for mafia related crime, for this reason.
Everything in Italy is very dynamic. There is a new president and will be (he gave evidence on 20TH February) a new minister with responsibility for prisons. The future is not certain and much depends on political choices. Many politicians are against an amnesty. ?It should be said that now more than ever the Italian government appears resolute in intervening in the prison situation?, but the effect of proposed measures will only be measurable after they have been voted for by parliament.
The prison population has fallen recently and is now 61500 (down from 67,961 in 2010, 66585 in April 2012 (Torreggiani), 65701 at the end of 2012 and 62,536 at the end of 2013). The official accommodation capacity is 47,615, but Antigone believe the true capacity is 37,000. He rejected the government notion of tolerability as subjective and variable. Official figures do not necessarily take into account parts of the prisons closed for reconstruction. Recently (since 2008), for the first time, it has been recognized that healthcare in prisons is a public responsibility. Improvements in healthcare have been patchy and depend on regional financing. In Tuscany it works well but in Sicily it does not. ?The general state of health among the prison population is abysmal.? Sometimes prisoners die from lack of appropriate treatment. Not every prison has a doctor available 24 hours a day.
The defence argues that the evidence demonstrates that article 3 breaches in Italy are widespread. Overcrowding remains very high. Healthcare facilities are poor. The assurance (which I refer to later) is vague, and cannot be relied on (for example because Italy contended, wrongly, in Torreggiani that their prisons do not breach article 3).
Submissions on behalf of Italy
Miss Hinton reminds me of the starting point, which is for the court to assume that ECHR signatories will comply with the Convention. Clear and cogent evidence is required to rebut the presumption, and this must be by way of a fact specific argument. Torreggiani shows that the authorities acted promptly in six of the cases by moving detainees to another prison. Action has been taken in recent moves to reduce overcrowding, which in any event does not necessarily breach human rights. Prison conditions in Italy vary from region to region and there is no evidence to suggest that Mr Rancadore will be detained in inhuman or degrading conditions. On the contrary, the Italian Ministry of Justice has given an assurance that Mr Rancadore will be held in conditions compatible with article 3. There is a verification process.
She also took me through a comparable situation following Orchowski v Poland. In that case the ECtHR concluded in 2009 that for many years overcrowding in Poland revealed a structural problem incompatible with the Convention. For many years the authorities appeared to ignore the existence of overcrowding. The court noted that solving the problem will require significant financial resources (or an abandonment of ?its strict penal policy?). Miss Hinton reminded me that this judgment was followed by a number of decisions of the Divisional Court in England and Wales that held that nevertheless extradition to Poland was not incompatible with the ECHR. While every situation is different, I accept there is an obvious parallel.
Decision on article 3
I take into account Mr Rancadore?s age and health. The Divisional Court took the view, with which I respectfully agree, that his health is not a sufficient reason for him not to remain in custody in this country. An undated letter from Dr Garsin replying to a request dated 4th October 2013 refers to treatments for essential hypertension. However his blood pressure has generally been well controlled on medication, and his most recent blood pressure reading in July 2013 was excellent. In December 2012 he had a stent inserted in a narrowed artery. However he continued to have some atypical chest pains, probably stress related. Prison records from November 2013 suggest further chest pain and at that time he was awaiting an appointment with a specialist.
Principles established by the ECHR, as summarized in Torreggiani [para 65] are that ?in this context, article 3 imposes on the authorities a positive obligation to ensure that all prisoners shall be held under conditions compatible with respect for human dignity and that?implementation?does not subject the person concerned to distress or testing of an intensity that exceeds the level of unavoidable suffering inherent in detention and that? the health and welfare of prisoners are adequately ensured?. At para 68: ?as soon as it was faced with overcrowding that fact alone is sufficient to conclude a breach of article 3.?
Overcrowding is clearly to be avoided. ?An overcrowded prison means that detainees are held in narrow and unhealthy spaces; a constant absence of closeness (even with regard to natural needs); limited activities outside the cell because of demand that exceeds the personnel and infrastructure available; overloaded health services; increased tension, and thus more violence between detainees and between detainees and staff. This list is far from exhaustive.? (Seventh CPT report, para 13, quoted in Torreggiani at page 16.)
However, is the article 3 test apparently adopted by the ECHR in Torreggiani, admirable though it is, not wider than the test used for extradition in England and Wales? As I understand it, the words ?inhuman or degrading? are not a term of art, with sharply defined edges, but in this jurisdiction are given their ordinary, everyday meaning. Courts in this jurisdiction have resisted the conclusion that overcrowding alone establishes an article 3 breach (see, for example Achmant v Greece  EWHC 3470 at para 36). I have considered Mr Gonnella?s evidence, including the time spent outside a cell by a sentenced prisoner (from 6 to 8 hours), his evidence on health care and violence. Even without the assurance from Italy I am not satisfied that there is a real risk, in Mr Rancadore?s case, of article 3 breach. Causing distress that exceeds the level of unavoidable suffering inherent in detention is not the same, in the eyes of our extradition courts, as torture or inhuman or degrading treatment. I am not aware that any other country has refused to extradite to Italy because of Torreggiani. However, having said all that, this view is not determinative of my decision. For current purposes I proceed on the basis that the test is the same in Strasbourg as domestically.
There is the assurance from the Italian Ministry of Justice that Mr Rancadore shall be held in conditions compliant with the provisions laid down in article 3. Mr Jones QC says this is too vague. It does not take into account his health and age. It does not say where he will be held. It is inexact and imprecise. Moreover, as the Italian government denied breach of article 3 in Torreggiani, the assurance cannot be trusted.
I do not agree. The assurance is not vague. In context it is clear to me that Mr Rancadore will not be held in an overcrowded cell, and that his health care will be adequately provided for, and more. We already know convicted prisoners are out of their cells for six to eight hours a day. It is clear that the Italian government, at the highest level, is motivated to improve conditions. The prison population has reduced significantly in a short period of time, and it is accepted that more progress is needed. Magistrates, Antigone and Mr Rancadore?s own lawyers are well placed to monitor compliance. Some prisons are better than others.
Although any heart condition and chest pain is worrying, the medical records that I have seen do not suggest any particularly unusual medical condition that cannot be treated within the Italian prison system. Antigone refers to insufficient medical services, and prisoners at risk of dying from inappropriate treatment. That is obviously a matter of great concern. However, there is no specific reference to dealing with the conditions suffered by Mr Rancadore, which are likely to be not uncommon.
We now know that specific assurances, such as the one given by Lithuanian authorities that remand prisoners will be held at Kaunas prison, can be problematic (see Aleksynas and others above) One prisoner needed to be transferred out for health care. Another preferred another prison so as to be closer to his family. The position could be worse, not better, if a specific prison were named for Mr Rancadore, for the reasons just mentioned, or for security, and particularly because over a long sentence the position may change. Other prisons may become more suitable. Looking over the Abu Qatada checklist that the parties took me to, there may be an argument that the assurances are not specific (though that may be a good thing), but they are certainly not vague. Given the provenance they are entirely acceptable.
I am satisfied the Italian authorities can and will comply with their obligations and assurance. There is a long history of mutual respect in extradition and other matters between this country and Italy. I accept the assurance without hesitation.
There are no strong grounds for believing that there is a real risk of torture or inhuman or degrading treatment if returned to Italy.
The defendant and his family have a right to family life. He has been here for twenty years. He has a long?standing marriage and children who are now adults. He lives in a house owned by his wife. There is no evidence that he has worked legally. He is not in good health, and is in his sixties.
In considering whether extradition is proportionate to his article 8 rights, and those of his family, three facts stand out. He is a fugitive. I am satisfied his wife and
daughter, at least, have known that for some time. He is wanted to serve a sentence of seven years? imprisonment. There is an importance to honouring our international obligations.
Extradition does not breach article 8.
It will be clear that in my original draft the decision was that as I am satisfied that the
warrant is valid, there is no statutory bar and extradition is compatible with the defendant?s Convention rights, including prison conditions, I must order that Mr Rancadore be extradited to Italy. However Hayle Abdi Badre v Court of Florence  EWHC 614 changes my decision. The judgment of the administrative court is binding on me. The higher court accepted that a similar assurance given in that case was in good faith, but was not sufficient [para 54].
?Whilst every case will be fact specific, in the face of a pilot judgment identifying a systemic failure of a state?s prison system, a simple assurance from that state that the article 3 rights of an individual (who if returned is at risk of being detained) will not be breached, will, without more, rarely if ever be sufficient to persuade a court that there is no risk of such a breach.?
I cannot distinguish this case from Badre. While it is true that I heard more up?todate evidence than was available to the court in that case, my intended decision, as expressed above, was based squarely on my acceptance of an assurance that has recently, and in similar circumstances, been rejected by a higher court.
I have also considered whether to seek a further assurance from Italy, but have decided not to for two separate reasons. First, such a request would contradict my expressed view above on the difficulties caused by specific prison assurances. (Even so, I recognize it is not impossible to come up with an assurance that would satisfy the court above, and this one. I also recognize that with some countries, especially those outside the EU, such a more specific assurance is helpful or necessary.) Secondly, I said (when evidence closed on 21st February) that I would not consider further evidence, bar exceptional circumstances. I was not asked to do so then, but in any event the issue as to Italian prison conditions had been raised many months ago, and the hearing had already been adjourned from October at least partly for that purpose. That means that the defendant has already been in custody awaiting this decision for seven months. An application for an adjournment in Badre was refused [para 60] on essentially the same points.
For the reasons given above, Mr Rancadore is discharged. The requesting authority has a right to appeal.
Senior District Judge (Chief Magistrate)
17th March 2014
Update: Italian law states a sentence is considered expired once a period of more than double the time of the penalty has passed. Rancadore's sentence dropped, even due to the above published decision. Read more under: "Mafia boss Domenico Rancadore's sentence 'expired'", BBC, april 1st, 2015.
3. After Torreggiani
Following the Torreggiani pilot judgement, Italy (as communicated to the COE Secretary General in april, 2014) has adopted several legislative measures to reduce prison overcrowding, as:
- extension of house arrest,
- increase of a reduction mechanism for good behavior in prison,
- compensation for detainees who have suffered a violation of art. 3 of the European Convention of Human Rights for a period of 15 days or more. Pre-trial detention cannot be applied in cases where the judge considers that the defendant, if found guilty, will be sentenced to 3 years or less or given a suspended sentence (up to 2 years sentence) (Law Decree 92/2014 of June, 2014).
Moreover, Law 67/2014 gave the Government the competence to adopt alternative measures to detention.
Following the remedies, in its decisions in the cases of Stella v. Italy (application no. 49169/09) and 10 other applications, and Rexhepi v. Italy (no. 47180/10) and seven other applications, the European Court of Human Rights has unanimously declared the applications inadmissible.
These decisions are final.
The cases concerned the issue of prison overcrowding in Italy following the application of the pilot judgment procedure in Torreggiani and Others v. Italy (nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10), delivered by the Court on 8 January 2013. The situation complained of by the applicants concerns about 3,500 applications which are currently pending before the Court and which will be examined at a later date. After having examined the new individual remedies introduced by the Italian State following the application of the pilot judgment procedure, the Court considered that it had no evidence enabling it to find that those remedies did not offer, in principle, prospects of appropriate relief for the complaints submitted under Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. It followed that the applicants? complaint concerning overcrowding in prisons had to be rejected for non-exhaustion of domestic remedies.
The Court noted that, following the application of the pilot judgment procedure in the case of Torreggiani and Others, the Italian State had enacted a number of legislative measures aimed at resolving the structural problem of overcrowding in prisons, had reformed the law to allow detained persons to complain to a judicial authority about the material conditions of detention and had introduced a compensatory remedy providing for damages to be paid to persons who had been subjected to detention contrary to the Convention.
The applications in the present case had been lodged before the entry into force of the new legislative provisions. Desiring to assert the crucial importance of its subsidiary role, the Court considered that there were grounds in the present case for departing from the general principle that the exhaustion requirement should be assessed with reference to the time at which the application was lodged and that this exception could apply to all similar cases pending before it.
With regard to the preventive remedy, the Court noted that, as of 22 February 2014, persons detained in Italy could lodge a judicial complaint with the judge responsible for the execution of sentences in order to complain of serious breaches of their rights, which included the right to enjoy sufficient living space and to enjoy appropriate physical living conditions.
In line with the action plan presented to the Court in November 2013, the Italian State had put in place a series of substantive measures intended to resolve the structural problem of overcrowding in prisons. Several legislative provisions had been enacted with a view to promoting greater use of alternatives to detention and to reducing the sentences laid down for minor offences. The renovation of existing prison buildings and the construction of new premises had increased the number of places available and permitted a better distribution of prisoners.
With regard to the compensatory remedy, the Court noted that the new remedy introduced by Legislative Decree no. 92/2014 was accessible to everyone who alleged that he or she had been imprisoned in Italy in physical conditions that were contrary to the Convention. This remedy concerned the present applicants, as well as all those who had lodged an application that was currently pending before the Court and not yet declared admissible. It provided for a reduction in sentence or compensation for persons who had been imprisoned in conditions contrary to Article 3 of the Convention.
In conclusion, the Court considered that it had no evidence on which to find that the remedies in question did not offer, in principle, prospects of appropriate relief for the complaints submitted under Article 3 of the Convention. Consequently, litigants complaining of the overcrowding in Italian prisons were under an obligation to use them. The applicants were required to use the remedy introduced by Legislative Decree no. 92/2014 in order to obtain acknowledgment of the violation and, where appropriate, adequate compensation. With regard to those applicants who might still be detained in poor conditions, the Court held that they were to submit a complaint to the judge responsible for the execution of sentences under section 35 ter of the Prison Administration Act, with a view to obtaining an immediate improvement of their living conditions in prison. This conclusion in no way prejudged a possible re-examination of the remedy?s effectiveness and the capacity of the domestic courts to establish a uniform case-law that was compatible with the requirements of the Convention.
The Court rejected the applicants? complaint concerning prison overcrowding for failure to exhaust domestic remedies and declared the applications inadmissible.As per result, Switzerland stated that extradition to Italy does not endanger human rights (decision 1C_176/2014).
3 (a) Riva and Elashmawy cases
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Neutral Citation Number:  EWHC 28 (Admin)
Case No: CO/3968/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
MR JUSTICE OUSELEY
MR JUSTICE MITTING
- and -
Court of Brescia, Italy
Court of Taranto, Italy
John Hardy QC and Hannah Hinton (instructed by CPS Special Crime and Counter Terrorism Division) for the Defendant
Edward Fitzgerald QC and Aaron Watkins (instructed by BCL Burton Copeland) for the First Interested Party
Peter Caldwell and Saoirse Townshend (instructed by the CPS) for the Second Interested Party
Hearing dates: 05 & 06/11/2014
Further written submissions and evidence: 13 and 17/11/12.
Crown Copyright © http://www.bailii.org/ew/cases/EWHC/Admin/2015/28.html
Lord Justice Aikens :
This is the judgment of the court to which all of us have contributed.
Background to the appeal: the appellant Mohammed Elashmawy.
The appellant is an Egyptian national, born on 21 March 1972. For some years he conducted several businesses in Italy. In 2005 Zhang Ling was employed by the appellant to work at a call centre that he ran. She was then 15 years old. The appellant allowed Ms Ling the use of a flat. Ms Ling alleged that on 25 July 2005 the appellant let himself into her flat and raped her violently after he had given her a "date rape" mixture to drink so that she became incapable of defending herself against his unwanted advances. She suffered injuries as a result of the attack. The appellant was charged, tried and convicted of Ms Ling's rape at the Court in Brescia, Italy. The first part of the criminal procedure took place in the appellant's absence, although his lawyer was present. The process led to the appellant's conviction and a sentence of 7 years imprisonment. The Court of Appeal of Brescia dismissed an appeal from that conviction. Subsequently the Court of Cassation remitted the case to a different section of the Court of Appeal in order that it should hear from various defence witnesses. However, under Italian criminal procedure the prosecution witnesses were not recalled and the appellant did not give evidence at that new hearing. Having followed this course, on 4 February 2011 the Court of Appeal of Brescia issued a judgment which affirmed the appellant's conviction and imposed a sentence of 6 years 6 months imprisonment. A further attempted appeal to the Court of Cassation was declared inadmissible on 26 October 2011. The appellant has accepted the conclusion of Deputy Senior District Judge Arbuthnot ("the judge") that he is a "fugitive" from his sentence. All of it remains to be served.
On 24 October 2013 the respondent Judicial Authority ("JA") issued a European Arrest Warrant ("EAW") requesting the surrender of the appellant to Italy so that he could serve his sentence. Italy has been designated a Category 1 territory for the purposes of the Extradition Act 2003 ("the EA") so that Part 1 of the EA applies to this case. The EAW is what is often called a "conviction" warrant, because it seeks the surrender of the appellant to serve a sentence for an offence of which he has been convicted and sentenced. The EAW was certified by the National Crime Agency on 25 October 2013. The appellant was provisionally arrested on 24 October 2013 when he was at Stansted Airport upon his arrival to the UK from Sweden. He has remained in custody ever since then.
The appellant did not consent to his surrender to Italy and so a full extradition hearing was started by the judge on 24 January 2013. The hearing continued over a further four days between May and August 2014. Judgment was given by the judge on 18 August 2014. The judge dismissed all the grounds of challenge raised by the appellant and ordered his extradition to Italy.
There were before the judge and there are before us three grounds on which the appellant resists his surrender. The first is, (in summary), that he was absent from his original trial in 2008, upon the advice of his lawyer that his attendance was not necessary and that the hearing would be formal. There were two appeals. The appellant does not accept that he was present at the first in 2009, but he accepts that he was present and properly represented at the second appeal before the Brescia Court of Appeal in 2011. However, because he was not present at the "trial" where he was convicted in 2008 and because it is accepted that he would have no right to a retrial upon his surrender to Italy, the appellant argues that he should be discharged pursuant to section 20(7) of the EA. We will call this ground of appeal "the trial in absentia ground". Secondly, if this first argument does not succeed, the appellant argues that the trial as a whole was flagrantly unfair, because he was unable to cross-examine prosecution witnesses or otherwise challenge their evidence at any stage in the proceedings leading to his original conviction or thereafter. Accordingly, any surrender of the appellant to serve a sentence following a trial that was in flagrant breach of his rights under Article 6 of the European Convention on Human Rights ("ECHR" or "the Convention") would make the surrender to serve the prison sentence a breach of his Convention rights under Article 5. That is because the imprisonment would constitute unlawful detention as the prior trial process had been in flagrant breach of the appellant's Convention rights. Therefore, it is argued, the appellant should be discharged pursuant to section 21(2) of the EA. We will call this ground of appeal "the Articles 5 and 6" ground.
The final ground of appeal is that the prison conditions in Italy are systemically so appalling that detention in them would constitute inhuman or degrading treatment or punishment, so if the appellant were surrendered to serve his sentence in an Italian prison there would be a real risk that his Article 3 ECHR rights would be infringed. Moreover, the various assurances given by Italian authorities as to where and in what conditions the appellant would be detained are insufficiently precise or reliable to overcome this systemic inadequacy. Therefore the appellant should be discharged, again pursuant to section 21(2) of the EA. We will call this ground of appeal "the Article 3 and prison conditions" ground.
Background to the first interested party: Fabio Riva.
Fabio Riva, the First Interested Party, ("Mr Riva") is the subject of two "accusation" EAWs issued by JAs in Italy. The first was issued by the Court of Taranto. That EAW seeks the surrender of Mr Riva to face a criminal prosecution in respect of alleged offences of conspiracy to commit public health and safety offences and offences against public administration and trust whilst he was Vice Chairman of the Board of Directors of Riva SpA. Mr Riva challenged that EAW before District Judge Zani on several grounds. One of them was the Article 3/ prison conditions ground. District Judge Zani promulgated his Ruling on 26 February 2014. He rejected all the challenges made to what has been called "the Taranto EAW". In relation to the Article 3/prison conditions ground DJ Zani heard expert evidence. He concluded that "the Italian authorities are not only well aware of their Convention obligations but that they will abide by them": para 167.
The second EAW was issued by the Court of Milan: "the Milan EAW". That is also challenged. A full extradition hearing before the Magistrates' Court is pending. The Milan EAW is also challenged by Mr Riva on the Article 3/ prison conditions ground.
At a case management hearing on 6 October 2014, Aikens LJ ordered that the parties in the appeal of Riva against the Court of Taranto should be joined as Interested Parties in the appeal of the appellant Elashmawy, in order that counsel acting respectively for Mr Riva and the Court of Taranto could present arguments on the legal principles and the facts concerning the Article 3/ prison condition issue. There are other issues in the Taranto EAW appeal, but they were not the subject of argument at the hearing of Mohammed Elashmawy's appeal. Meanwhile proceedings in the Milan EAW case have been stayed pending the outcome of this appeal.
On 5 and 6 November 2014, we heard oral argument from Mr Alun Jones QC and Mr Edward Fitzgerald QC on behalf, respectively, of the appellant Elashmawy and the First Interested Party, Mr Riva, Mr John Hardy QC on behalf of the respondent and Mr Peter Caldwell on behalf of the Second Interested Party. Mr Jones complained that some material relied on by the respondent had been produced for the first time at the appeal before this court and also that it had been served on the appellant very late. We ordered that Mr Jones could make further written submissions on the new material and adduce further evidence if so advised and that Mr Hardy could respond to that, in accordance within a timetable that we laid down.
We therefore reserved judgment.
The history of the criminal proceedings in Italy against the appellant in more detail.
The history of the proceedings, as found by the judge and as supplemented by the material which we were shown (without objection), is as follows: there were preliminary investigations by the Italian authorities until June 2006. On 11 June 2006 a notice of their conclusion (in Italian) was given to the appellant at a police station and he signed it. Before the judge there was a dispute about whether the appellant had signed that document and whether he understood it. The judge dismissed the appellant's allegation that the Italian authorities had forged his signature and she found that he understood the document. There is no appeal from those conclusions. The document set out the allegations against the appellant, required him to state an address for the service of documents, informed him that he should appoint a lawyer to defend himself or, if not, one would be appointed for him and also stated that he and his lawyers could view and copy the evidence obtained by the Public Prosecutor. The document indicated that the appellant had a right to an interpreter. From that point onwards the appellant formally acquired the status of "defendant". The judgment of the Court at Brescia following the hearing on 14 February 2008 stated that the appellant "had nothing to say during the investigation stage".
The judge also found that the appellant's main defence to the charge had been one of alibi. The judge found that one of the rights indicated in the document handed to the appellant on 11 June 2006 was that he could render declarations to the Public Prosecutor and could provide a list of alibi witnesses.
Until the first court hearing of the Brescia Court in February 2008 the appellant was represented by his company lawyer, Avv. Canali. As part of the preparation for the trial, the defence team was required to serve a list of the witnesses that it wished to call. The judge found (para 61) that Avv Canali had pressed his client three times during 2007 to produce a list of alibi witnesses, but the appellant had not provided it. The appellant was also pressed for the list at a meeting on 4 February 2008 between the appellant, Avv Canali and Avv Pollini. (The latter advocate was, however, only formally instructed by the appellant in June 2008, that is after the first court hearing). In the result, no list of defence witnesses was served until after the deadline for doing so had been passed.
The first hearing of the Court in Brescia took place on 14 February 2008. Mr Canali did not attend, but instead sent along another lawyer, whom the judge characterised as "inexperienced and ill-prepared": see judge's ruling para 69. The appellant was informed (by Avv Canali) that he need not attend the hearing. He was not informed that defence witnesses needed to be present that day or that he could give evidence himself. The judge found: "it was [the appellant's] choice not to attend but I accept that his lawyer was negligent and was rightly reprimanded for not knowing that it was an important hearing at which the prosecution witnesses would be heard": para 68. At the February 2008 hearing the complainant's evidence was examined by the court in detail. The appellant's lawyer did not have a copy of the prosecution evidence in her possession at that hearing and she did not cross-examine the prosecution witnesses who gave evidence. The judge commented, perceptively, that as the appellant's defence was alibi, any cross examination of the complainant and other witnesses would have been short and, essentially, limited to the suggestion that someone else had been responsible for the rape and the complainant's injuries that were found by the doctor.
The judgment of the Court at Brescia found that the facts gathered at the preliminary investigation stage were "fully sufficient" to demonstrate the allegation against the appellant. It held that the complainant's account passed "the credibility and reliability tests to which it was necessarily subjected" and that her evidence was also supported by "external corrobatory (sic) facts". The court described the evidence of the specialist sexual offences doctor who had examined the complainant some 34 hours after the incident as being "irreproachable testimony". The court accepted the doctor's findings of an "array" of injuries which were "completely inconsistent with consensual sexual relations". The complainant's mother had also given evidence, of what in England and Wales would be called "recent complaint". At various points in the judgment the court commented on the fact that the evidence of the doctor was not challenged; that the appellant was not present at the hearing and that "no alternative version as a defence" was presented by the appellant "during the trial". It sentenced the appellant to 7 years imprisonment. The judge concluded that the court "came to conclusions that were open to it on the evidence they had heard": para 69.
The appellant then appealed the Court of Brescia's decision, on the ground that the incompetence of his legal representation meant that he had not been able to present his defence properly. It was said that the appellant had wished to call six witnesses who could prove his alibi. On 1 October 2009 the Criminal Division of the Brescia Court of Appeal dismissed the appeal and confirmed the judgment of 14 February 2008. However, in a judgment of 13 May 2010, the Court of Cassation overturned the appeal court's decision and referred the matter back to a different division of the Brescia Court of Appeal. At the hearing before the latter court the appellant was represented by two lawyers: Avv Boni and Avv Pollini.
The judgment of the Brescia Court of Appeal, Criminal Division 2 (the "second appeal") was given on 4 February 2011. This noted that, before the Court of Cassation, "the appellant had not proposed any reconstruction of the facts as an alternative to that which had been put forward?but had wanted to prove ? by means of witnesses ? that he was not the perpetrator of the actions in question". At this second appeal the Brescia Court of Appeal heard evidence from three defence witnesses but not the appellant himself. It did not rehear any evidence either from prosecution witnesses or from the complainant herself. It had transcripts of her evidence and that of the doctor, neither of whom, of course, had been cross-examined at the original hearing in 2008.
The court rejected the second appeal. It said that its conclusion had been "reached objectively after a careful and comparative critical assessment of the statements provided by the injured party and those provided by the witnesses named for the defence". The court characterised the narrative of the complainant as being "absolutely linear, [and] devoid of any intrinsic contradictions". The court reviewed the complainant's evidence, that of the doctor's examination of the complainant and that of the mother. It concluded that this "hefty probative compendium" led to the "reasonable belief that a non-consensual sexual act [had] taken place". Given that the appellant did not seek to challenge that underlying conclusion, the court held that:
"?any verification process set against the established credibility of the injured party in terms of the material nature of the [behaviour] perpetrated against her, must, therefore be aimed at subjecting the statements given by the witnesses for the defence to particularly rigorous scrutiny?.precisely because the sexual assault and, consequently, the reliability of the young girl on the point [of the sexual attack] cannot be challenged objectively here in order to discredit her with reference to the attribution of the said assault to the conduct of the accused, any evidence for the defence requested in this regard must be rock solid and reassuring".
The Court then considered the evidence of the witnesses tendered by the defence, which was aimed at demonstrating that the appellant was, throughout the evening and night of the assault, at the home of a friend celebrating the Egyptian national holiday. The Court held that this evidence had to be "subjected to careful and watchful critical assessment". It concluded that the evidence was not reliable, was contradictory and suggested conduct on the part of the appellant "which is barely plausible". It also concluded that two of the witnesses had colluded in reconstructing an episode "in terms ever more favourable" to the appellant. The Court therefore rejected the alibi evidence and the appeal on conviction. However, it allowed an appeal on sentence, which was reduced to 6 years 6 months. This judgment became final on 26 November 2011.
Ground 1: trial "in absentia". The arguments, analysis and conclusion.
On behalf of the appellant, Mr Alun Jones QC submitted that the "trial" of the appellant consisted of the hearing before the Court at Brescia resulting in the judgment of 14 February 2008, by which the appellant was convicted. As a result of the negligence of the appellant's legal team the appellant was not told that the hearing would be an effective one at which prosecution witnesses would be called and could be cross-examined; that defence witnesses should be present and that he, the appellant, should also be present and give evidence if he wished to do so. The result was that the appellant was not present at his trial, but, equally importantly, the evidence of the complainant, the doctor and the other prosecution witnesses was untested. Mr Jones relied upon a report prepared by the Bergamo Bar Association which criticised the conduct of the appellant's company lawyer, Avv Canali, and which found that he had acted negligently and so was to be reprimanded. Mr Jones also submitted that the JA was bound by the statement in box (d) of the EAW that the "decision was rendered in absentia". Further, because the appellant had been materially misinformed about the nature of the hearing in 2008, his absence was not deliberate.
On behalf of the respondent JA, Mr John Hardy QC accepted that the appellant was not physically present at what he described as "the first stage of the trial process". The result of the appeal process was that the trial was re-opened and the appellant was effectively present at all the stages after the first one. Upon authority the "trial" constituted the whole process from beginning to end. The appellant was either present or was, for the first hearing, deliberately absent, as the judge below found.
Section 20 of the EA provides:
"20. Case where a person has been convicted.
(1) If the judge is required to proceed under this section (by virtue of Section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in sub-section (1) in the affirmative he must proceed under Section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in sub-section (3) in the affirmative he must proceed under Section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in sub-section (5) in the affirmative he must proceed under Section 21.
(7) If the judge decides that question in the negative he must order the person's discharge?"
Section 20 was enacted to give effect to Article 5.1 of Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between member states (2002/584/JHA), which we will call "the FD 2002". Article 5.1 stated:
"The execution of the European Arrest Warrant by the executing judicial authority may, by the law of the executing member state, be subject to the following conditions:
1. Where the European Arrest Warrant has been issued for the purpose of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European Arrest Warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment."
Article 5.1 was deleted with effect from 28 March 2009 by Article 2.2 of Council Framework Decision 2009/299/JHA of 26 February 2009, which we will call "FD 2009". However, that was not before Article 5.1 was able to provide assistance for the House of Lords on the nature of the Italian criminal process in Caldarelli v. Court of Naples Italy  1 WLR 1724. An Italian judge had issued an "accusation warrant" in a case in which the requested person had been tried and convicted of a drug offence by the First Criminal Section of the Court of Naples and he had then appealed. At the time of the extradition hearing his appeal remained outstanding. Under Italian law the first-instance judgment and the sentence were neither final nor enforceable until the criminal appeal process had been concluded. The House of Lords held that the requesting authority was right to issue an accusation EAW (i.e. one which contained the statement and information required by section 2(3) and (4) of the EA) and not a conviction EAW (i.e. one which contained the statement and information required by section 2(5) and (6)). Lord Bingham of Cornhill explained why at :
"Here, as is common ground, the foreign judge has treated the appellant as an accused and not a convicted person. This seems strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial goes down the steps from the dock to the cells. But such is not the practice in Italy where the trial is indeed a continuing process, not yet finally completed in this case, and not an event."
It is not suggested that Italian criminal procedure has changed materially since the decision of the House of Lords in Caldarelli. English extradition law has changed, but only marginally. Section 2(5)(a) of the EA as originally enacted and as considered by the House of Lords in Caldarelli provided:
"The statement is one that ? (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant?"
Since 15 January 2007, the words "is alleged to be unlawfully at large after conviction" have been deleted and "has been convicted" inserted. So section 2(5)(a) now reads:
"The statement is one that ?
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant?"
We are satisfied that the change in wording has not produced any material change in meaning: what would have been recognised as a "conviction" before the change is now what is comprised in the phrase "has been convicted".
It seems that the House of Lords in Caldarelli was not referred to observations of this Court in Government of Albania v Bleta  1 WLR 3576. That was a Part 2 case. It turned upon a different question, which was whether or not a requested person who had fled before criminal proceedings were in train had deliberately absented himself from trial under section 85(3) of the EA, which is the equivalent, in a case governed by Part 2 of the EA, of section 20(3) in a Part 1 case. At paragraph 48F, Pill LJ, with whom Cox J agreed, said:
"The expression "his trial" contemplates a specific event and not the entire legal process."
In our view, despite the fact that Bleta was not cited in Caldarelli, we are bound by, and would in any event, follow the reasoning of Lord Bingham in Caldarelli. This means that we must acknowledge that a criminal "trial" in a civil law system such as that obtaining in Italy "is indeed a continuing process".
On the facts of the appellant's case, that process started when the appellant was served with notice of the conclusion of the investigations on 11 June 2006, which was when the appellant was given the status of "defendant". It was concluded when the judgment of the Court of Appeal of Brescia in the second appeal became final on 26 November 2011, as is stated in box (b) of the EAW.
Mr. Jones submitted that the word "convicted" in section 20(1) does not necessarily have the same meaning as the same word in section 2(5)(a). To a very limited extent, we accept that submission. Section 2(5)(a) (and section 11(4)) identify the precise date on which a requested person ceases to be an accused person and becomes a convicted person, by reference to a single event ? typically the judgment of a Court becoming final. It is obvious that the draftsman cannot have meant in section 20(1) that a requested person who had been absent throughout criminal proceedings which resulted in his conviction would nevertheless to be treated as having been convicted in his presence, if, by chance, he happened to be present when the decision announcing his conviction was handed down or he was present (only) at the time of taking the administrative step of issuing a document recording the fact that his conviction had become final. The meaning of "convicted" in section 20(1) must draw some colour from the now deleted Article 5.1 of the FD 2002, which required that the requested person be summoned in person or otherwise informed of the date and place "of the hearing which led to the decision" i.e. the substantive hearing on the merits, in consequence of which the final decision to convict was made.
On the facts found by the Judge, "the hearing which led to the decision" was the second appeal hearing before the Brescia Court of Appeal in February 2011. It is not disputed that at that hearing the appellant was present, and that at that hearing some at least of the alibi witnesses upon whom he wished to rely were examined and cross-examined.
Mr. Jones submitted that the judge was not entitled to reach that conclusion, because of the description of the proceedings in box (d) of the EAW and the course which the proceedings in fact took. The EAW is not easy to construe unaided. In box (b) it identifies the enforceable judgment as that issued by the office of the Prosecutor General of Brescia "regarding the judgment number 222/2011 delivered by the Court of Appeal of Brescia on 22/3/2011 (final on 26/11/2011)." If the wording had stopped there, it would have been plain, beyond argument, that the hearing which resulted in the conviction of the appellant was the second appeal. But, Mr. Jones argued, that impression is dispelled by box [d],
"Decision rendered in absentia and:
X the person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia".
That is clearly a reference to the hearing at first instance on 14 February 2008. We accept that these two entries create an ambiguity which, under Article 15.2 of the FD 2002 Framework, the executing judicial authority (i.e. the UK judicial authority) was entitled to ask the requesting judicial authority to clarify. The Italian Prosecutor General did so in his note of 13 January 2013. That note made the position clear: the appellant was notified, at the home address which he had given, of the "first instance trial date" and, in any event knew it, because he maintained that he had not attended it on his lawyer's advice. The note of 13 January 2013 said that the appellant attended both appeals, but on the Judge's findings he did not attend the first appeal, although as a matter of his own choice.
What the requesting JA was seeking to do in box [d] of the EAW was to preclude any submission that Article 4(a) of the FD 2002, inserted by Article 2.1 of the FD 2009, would permit the United Kingdom to refuse to surrender the appellant. Article 4(a) of the FD 2002 provides:
"Decisions rendered following a trial at which the person did not appear in person
1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or detention order if the person did not appear in person at the trial resulting in the decision unless the European Arrest Warrant states that the person in accordance with further procedural requirements defined in the national law of the issuing member state:
a) In due time:
i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
ii) he was informed that the decision may be handed down if he or she did not appear for the trial;
b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the state to defend him or her at the trial and was indeed defended by that counsellor at the trial?"
Thus the requesting JA was saying that the appellant had attended two of the substantive hearings constituting the criminal process and had been duly summoned to attend the third, (although the first in time), but had deliberately decided not to. The FD 2009 is not a part of UK domestic law and the EA precedes it, but, in our view, the construction which we give to section 20 does not contradict anything in the new Article 4(a) of the FD 2002.
On the basis that what must be established is that the appellant attended the substantive hearing which resulted in his conviction, viz. the second appeal, the appellant was "convicted in his presence" for the purpose of section 20(1) of the EA. If he was convicted in his presence, it is still open to the requested person to argue that his rights under Article 5 ECHR would be infringed if he were to be surrendered to serve a sentence of imprisonment following a trial that involved a flagrant breach of Article 6 of the ECHR: that is one of the issues which an extradition judge may be required to address next under section 21. However, that is a different point.
If our construction of the words "was convicted in his presence" in section 20(1) is too narrow, then it is necessary to consider the whole process which resulted in the appellant's conviction. As already stated, it involved three substantive hearings. It is not disputed that he did not attend the first instance hearing in 2008, even though he was notified of it. The judge found that "it was [the appellant's] choice not to attend", although she accepted that his lawyer was negligent and was rightly reprimanded for not knowing it was an important hearing at which prosecution witnesses would be heard. There was a dispute about whether or not the appellant attended the first appeal in 2009. In paragraph 13 of his witness statement of 18 December 2013, prepared for the purposes of the extradition hearing, the appellant said that he had attended that hearing. The lawyer that represented him on that occasion, Avv Pollini, confirmed in his evidence that the appellant had attended it. When the appellant gave evidence in the extradition hearing (after Avv Pollini) he said, for the first time, that he had not done so. The judge was prepared to accept that he had not done so, because Avv Pollini sent a note to say that he had been mistaken. Nevertheless, the judge did not believe the appellant's evidence that he had not been informed of the hearing and she was satisfied that Avv Pollini must have told him about the appeal date. On the Judge's finding, it therefore follows that the appellant was deliberately absent from that first appeal hearing. As already noted, he was present at the second appeal hearing in 2011; and the judge found that he could have participated personally in that hearing had he wished to do so.
On the judge's findings, which we accept, the appellant was present at the final determinative substantive hearing and deliberately absent from the first and second. There appears to be some possible conflict in the approach of this court to a case where a requested person has deliberately absented himself on the advice of his lawyer. In Deputy Public Prosecutor of the Court of Appeal of Montpelier v Wade  EWHC 1909 (Admin), the requested person had attended his first instance trial and had been acquitted and then had been dissuaded from attending the hearing of a prosecution appeal on the erroneous advice of his lawyer. He was held not to be deliberately absent from the prosecutor's appeal. In Atkinson v Supreme Court of Cyprus  1 WLR 570, the requested persons did not attend a prosecutor's appeal against acquittal because their lawyer had advised that prosecutor's appeal was hopeless, but their lawyer did attend. Collins J (with whom Maurice Kay LJ agreed) held that a person was deliberately absent if he made a conscious decision not to attend even if that conscious decision was based on erroneous advice or information from his lawyer: see . We find the reasoning in Atkinson more persuasive. On the facts of this case, the appellant had no reason to be confident that the summons to attend the first instance hearing did not mean what it said. He did deliberately absent himself from that hearing.
In a case involving more than one substantive hearing which together constitutes the "trial", an extradition judge may not be able to answer the simple binary questions posed by section 20(1)(iv), but may have to give a compendious answer. If so, on the facts of this case, the compendious answer had to be that the appellant attended the determinative part of his "trial" but deliberately absented himself from the remainder.
We therefore dismiss this ground of appeal.
Ground 2: Articles 5 and 6. The argument, analysis and conclusion.
The appellant's case before the judge and in his written submissions was that she should have ordered his discharge under section 21(2) of the EA because his right to a fair trial under Article 6 had been infringed. Mr. Jones now accepts that this was an inapt way of framing the challenge. In a "foreign" case such as this, the test is whether or not a person facing extradition or deportation "risked suffering a flagrant denial of justice in the requesting country": see the judgment of the European Court of Human Rights ("ECtHR") in: Othman v. UK  55 EHRR 1 at , applying the principle first established in an extradition case, Soering v. UK  11 EHRR 439 at . However, even this principle is not directly relevant because there is no question of a retrial in Italy. That does not mean that a requested person whose extradition is sought on a "conviction" EAW to serve a term of imprisonment imposed after a "flagrantly unfair" trial is without recourse. He may be able to establish a breach of Article 5. Thus:
"A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial." (See: Othman ).
It is clear that the requested person must establish that his trial was flagrantly unfair, not merely that it contravened Article 6. Mr. Jones expressly accepted as much in his argument before us.
Article 6 provides:
"Article 6 ? Right to a fair trial
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
In this appeal, Mr Jones focussed upon Article 6(3)(d) and, to a lesser extent, Article 6(2) and Article 6(3)(c). He submitted that the appellant was not afforded the right to examine or have examined the witnesses against him, the complainant and the doctor (Dr. Kustermann) and to obtain the attendance and examination of witnesses on his behalf under the same conditions in which the witnesses against him had been heard. He also submitted that at the second appeal, the burden of proof was reversed, because, effectively, it was up to the appellant to prove his alibi in order to demonstrate that he did not commit the rape.
There is nothing in any of these complaints. The appellant had chosen Mr Canali to represent him. Mr Canali left the first hearing to an inexperienced lawyer. That was not as a result of any default by the Italian State, but, if anything, was the result of Mr Canali's decision. If there is a point at all it is on Article 6(3)(d). It is the obligation of a contracting state under Article 6(3)(d) to give an accused person the opportunity to examine or have examined the witnesses that are against him. Thus, a conviction based solely or to a decisive degree on depositions made by a person when that opportunity has not been afforded is incompatible with Article 6: see the judgment of the ECtHR in PS v Germany  36 EHRR 61 at . In this case, the appellant was afforded that opportunity at the first hearing in 2008 but, for the reasons explained by the judge, he did not take it. There was no lack of opportunity for the appellant to cross-examine witnesses; to call his own witnesses (including alibi witnesses) and to give evidence himself. Any negligence on the part of the lawyer does not erase the fact that the opportunity existed. Given the opportunities, there could be no breach of Article 6(3)(d) by the Italian State. The Judge's conclusion that there was a breach of Article 6 was, with respect, wrong. Thereafter, there was no further obligation on the Italian judicial authorities to afford the appellant and his lawyers a second opportunity to cross-examine the complainant, whom the judicial authorities were entitled to treat as a vulnerable young woman.
Nor was there any infringement of the appellant's rights to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Mr. Jones complains that his alibi witnesses were not questioned before a court until 5 ½ years after the event, unlike the complainant, who was questioned 2 ½ years after it. It is, of course, true that the alibi witnesses were not questioned until February 2011, but, for the reasons given by the judge, that was entirely the responsibility of the appellant and his lawyers. He could (and should) have provided the names of his witnesses to his own lawyer in good time to enable him to give the names to the Public Prosecutor within the timetable allowed and then made the witnesses available for questioning before the first hearing, thereby securing the admission of their evidence at that hearing. Whether the failure to give the names of witnesses was the fault of the appellant, his lawyer or both, is not to the point. The Italian judicial authorities themselves were not in breach of Article 6(3)(d), because they afforded every opportunity to the appellant to have his witnesses examined under the same conditions and witnesses against him.
Before the judge, the appellant contended that he was not able to give evidence in his own defence. She rejected that submission and it has not been pursued on appeal. It is, however, to be noted that if he had given evidence in accordance with his proof of evidence dated 18 December 2013, he would have undermined the alibi evidence which he called. Far from leaving his friend's home between 5 and 9 am on 23 July 2005 to go to Milan Malpensa Airport to collect his cousin as they said, he stated:
"I left about midday on 23rd and returned to my place of work. I went straight to the call centre, this was the first thing I did after leaving my friend's house."
He then gave a detailed description of what he found when he arrived there ? no complainant and ?2000 worth of calling cards missing.
As to the allegation that the Brescia Court of Appeal at the second appeal hearing reversed the burden of proof, this is an unfair reading of the reasoned judgment of the court. All that it did was to subject the alibi evidence to critical scrutiny and conclude, as it was entitled to do, that it contained inconsistencies and contradictions which undermined that evidence and that the alibi evidence supported an implausible proposition, viz. that the appellant would have slept on a sofa at his friend's home, rather than in a bed at his own home which was significantly nearer to the airport.
Even if it were possible to discern one or more respects in which the detailed requirements of Article 6 had been infringed at some stage in the proceedings, it would be impossible to conclude that any infringements were, taken as a whole, in flagrant breach of Article 6.
Accordingly, we must reject this ground of appeal also.
Ground 3: Article 3 and prison conditions in Italy.
This ground potentially raises points of importance concerning the circumstances in which a requested person can raise allegations of poor prison conditions and breach of Article 3 as a bar to surrender to a Part 1 territory and the extent to which problems of prison conditions in a requesting Part 1 JA can be overcome by particular assurances that are proffered on behalf of the requesting JA. We will start with some general legal propositions. Then we will consider the factual situation concerning prison conditions Italy as it is today. Under this heading we will have to consider the extent to which the JA can adduce "new evidence" that was not before the judge. Finally we will give our conclusions on the arguments raised. Insofar as we reach conclusions of law they will bind the First and Second Interested parties in this court; as will our conclusions on facts concerning the situation in the Italian prison estate as it appears to us from the material put before us at the hearing and thereafter in written submissions.
Article 3 and prison conditions: the legal framework
Article 3 of the Convention provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
A number of general propositions are very well established by ECtHR case law and accepted by the courts of England and Wales in relation to Article 3 and its application to prison conditions in the context of extradition. We think that they can be summarised as follows: (1) the extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue, which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought. (2) If it is shown that there are substantial grounds for believing that the requested person would face a "real risk" of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes "absolute" rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is "relative". (5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured. (6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant. (7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 metres2 , the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3: (see the ECtHR judgment of Ananyev v Russia (Applications Nos 425/07 and 60800/080910) of January 2012, referred to at  of Florea v Romania  EWHC 3538 (Admin)("Florea"). (8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements.
The legal principles with regard to extradition, prison conditions in Contracting States to the ECHR and Member States of the EU and whether Article 3 is engaged, have been recently restated by this court in Krolik (and others) v Several Judicial Authorities in Poland  1 WLR 490.
There is no need to reconsider earlier authorities in this area.
We can summarise the relevant principles as follows:
(1) member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary.
(2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment.
(3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations.
(4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful.
However, Mr Fitzgerald, for the First Interested party, questioned whether a requirement of "something like an international consensus" (see  of Krolik) is a useful test to apply on the question of whether the presumption had been rebutted.
Prison conditions in Italy: the ECtHR's "pilot judgment" in Torregianni.
Italy is, of course, a founding member of the Council of Europe and what is now the European Union. The principles set out in the two preceding paragraphs therefore apply with full force to allegations concerning prison conditions in that country and whether they are a bar to extradition from the UK under either type of EAW ("accusation or "conviction"). However, there can be no dispute that in recent years there have been very considerable concerns about the conditions for prisoners in (at least) certain Italian prisons. This is evidenced by the fact that the ECtHR invoked the "pilot judgment" procedure in respect of seven applicants who all complained about the conditions under which they had each been held in two Italian prisons: Busto Arsizio and Piacenza. This resulted in the decision in Torreggiani and others v Italy (2009) App. No 43517/09 ("Torreggiani"). In its judgment in that case the ECtHR noted, at , that there were "several hundreds" of requests directed against Italy which all alleged a breach of Article 3 "for inadequate conditions of detention related to overcrowding in different Italian prisons" which were pending before the Court; and it noted that the number was increasing.
The ECtHR introduced the "pilot judgment" procedure (which was codified in the new Rule 61 in 2011) to deal with situations "where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given or may give rise to similar applications": Rule 61(1). Rule 61(3) stipulates that if the ECtHR decides to adopt the "pilot judgment" procedure in a particular case then in the "pilot judgment" itself the Court must "identify both the nature of the structural or systemic problem or other dysfunction as established" and it must also identify "the type of remedial measures which the Contracting Party concerned is required to take at the domestic level" as a result of the judgment.
In Torreggiani the ECtHR was concerned with two issues: first, whether the applicants were detained in the two prisons for long periods in conditions that were contrary to Article 3. Secondly, if that were so, whether Italy had "effective remedies" in the sense that it had effective means "in practice" to avoid prisoners from continuing to be detained in conditions that were contrary to Article 3 and to ensure an applicant's physical conditions of detention. In relation to the first issue, the main argument concerned alleged overcrowding in prison cells. The applicants said that they shared cells with two other occupants and the total space was 9m2 which included the space taken up by furniture, so the net "living area" for each prisoner was less than 3m2 . The ECtHR concluded that the applicants "did not benefit from a living area consistent with the criteria that it has considered acceptable in its case-law", the norm for "habitable space in collective cells" being 4m2 per person: see . This situation was "further aggravated" by other factors: the lack of hot water in the two institutions for long periods (which the government recognised) and insufficient lighting and ventilation in the cells in Piacenza prison: see . The Court concluded that there had therefore been a breach of Article 3 of the Convention in the case of all the applicants: see . It went on to hold that there was "structural and systemic" prison overcrowding, which was the result of "a chronic malfunction particular to the Italian penitentiary system which has affected and is likely to affect again in the future many people", which overcrowding was "a practice incompatible with the Convention": see  and .
The ECtHR then had to consider the consequences of this conclusion. It noted that, under Article 46 of the ECHR, a defendant state had the legal obligation, under the control of the Committee of Ministers, to implement the general or individual remedies necessary "to safeguard the applicant's rights of which the Court has found the infringement". Such measures had to be taken in respect of any other persons in the same situation as the applicant: see . This applied to a "pilot judgment" where the Court had to identify clearly "the existence of the structural problems behind the infringements and indicate the particular measures or actions that the defendant State will have to take to deal with them". However, in adopting this approach, the Court had to take "due account of the respective powers of the organs of the Convention", noting that under Article 46(2) it was for the Committee of Ministers to evaluate the implementation of individual or general measures taken in execution of the Court's judgment.
The Court recalled that its judgments were declaratory and that, whilst it could encourage a state to take various steps to deal with the problems highlighted in the case, it could not advise States on either their penal policies or the organisation of their prison systems: see -. The State had to provide "internal remedies", which would be "preventative", in the sense of enabling prisoners to be detained in future in conditions which did not breach Article 3 and "compensatory" in the sense of compensating prisoners for past breaches: see .
The conclusion of the court is recorded at  which, in the English language version, is somewhat incoherent in part and at odds with the original French language version. We have attempted to retranslate the French language version as follows:
"[The Court] concludes that the national authorities must, without delay, put in place a remedy or a combination of remedies, both preventative and compensatory, which genuinely guarantee effective redress for the violations of the Convention resulting from prison overcrowding in Italy. The remedy(ies) must conform to the principles of the Convention, as contained in particular in this judgment (see inter alia paragraphs 50 and 95 above) and be introduced within one year of the date on which this judgment becomes definitive?"
Then, in  of the judgment, the Court decided to adjourn all cases which were only concerned with allegations of prison overcrowding and had not yet been communicated to Italy, as defendant State. But others which had been communicated to Italy would continue to be dealt with. The Court also awarded sums of damages to the seven applicants.
The upshot of the decision, therefore, is that the ECtHR found that there was prison overcrowding in Italy of a "structural and systemic nature", resulting from a "chronic malfunction" of the Italian penitentiary system. The Court gave Italy one year to instigate effective "internal remedies", by which it meant a system whereby any prisoner whose complaint of overcrowded prison conditions that were in breach of Article 3 could have an effective remedy. The ECtHR noted that there was no effective remedy at present because, although a prisoner could complain to the sentencing judge under articles of the Law concerning the prison service, that appeal was ineffective because "it does not make possible a quick end to imprisonment in conditions contrary to Article 3 of the Convention": see  and . Nor could prisoners who suffered non-compliant imprisonment obtain any form of compensation for the infringement suffered: .
In paragraph 4 of its formal ruling the ECtHR stipulated that:
"the defendant State will, within the period of one year from the date of this judgment becoming definitive?establish one or more internal reorganisation plans to provide adequate and sufficient redress for cases of prison overcrowding, in accordance with the principles of the Convention as established in the case law of the Court".
In short, Italy was given one year in which to provide effective mechanisms whereby any prisoner who complained that the prison conditions under which he was detained were contrary to Article 3 could seek redress through legal proceedings and be sure that if he his complaint was upheld he would thereafter be detained in Article 3 compliant conditions. Italy's application to refer the matter to the Grand Chamber was refused so that the judgment became final on 27 May 2013, that is just over 18 months ago.
The Divisional Court decisions in Badre v Court of Florence, Italy  EWHC 614 (Admin) ("Badre") and the Florea case.
This case followed Torreggiani and indicated the approach that the English court could take to the argument that a person should not be surrendered under an EAW to Italy to face the prospect of being detained in an Italian prison. An "accusation" EAW issued by the Court of Florence sought the surrender of Hayle Abdi Badre to face one charge of "unauthorised financial activity". Mr Badre challenged the EAW on several grounds, but the only relevant one is that his surrender would constitute a breach of his Article 3 rights "in view of the prevailing prison conditions in Italy (see Torreggiani v Italy)":  of the judgment of McCombe LJ. The appeal was allowed on two grounds, one of which was the "Article 3 and prison conditions" ground. McCombe LJ gave the principal judgment.
At  and following, McCombe LJ referred to the ECtHR's decision in Torreggiani. He held, at , that the judgment provided, in relation to prison conditions and compliance with Article 3, "?a very clear rebuttal of the presumption that might otherwise apply to this court's view of extradition to Italy as a member state of the Council of Europe and the European Union". He added, at , that when there was evidence that the risk of a breach of Article 3 existed, "it was for the requesting state to dispel any doubts", referring to  of Saadi v Italy (2009) 49 EHRR 30. At the hearing before the Divisional Court, (on 26 February 2014), counsel for the Italian Judicial Authority conceded that there was a continuing problem "in the Italian prison estate". This concession appears to have been based particularly on a letter dated 15 November 2013 sent to the UK Liaison Magistrate in Italy. This reported (amongst other things) the fact that the President of Italy had invoked an exceptional procedure under Article 87 of the Italian Constitution to send a message to Parliament inviting the legislature promptly to consider the Torreggiani decision and to proceed "to an internal remedy which may offer a restoration (sic) for the overcrowding conditions already suffered by prisoners?": see .
In order to discharge the burden that the court held was on the respondent state to "provide evidence to satisfy the court that the relevant risk of incarceration in conditions contrary to Article 3 did not arise in the case of [Mr Badre]", the Italian Judicial Authority relied on a letter of November 2013 from the Italian Ministry of Justice to the UK Liaison Magistrate in the British Embassy in Rome which gave an assurance concerning the conditions in which Mr Badre would be kept should he be surrendered pursuant to the EAW ("the Badre assurance"). We should set out the terms of the Badre assurance as they are relied upon (in a negative sense) by the appellant and the First Interested Party in the present appeal. It stated:
"RE: ABDI BADRE Hayle, born on 24 October 1960. European Arrest Warrant
Our Ministry assures you that should the Somali national ABDI BADRE Hayle be surrendered by the Authorities of the United Kingdom of Great Britain and Northern Ireland under the European Arrest Warrant, he will be kept in conditions complying with the provisions of Article 3 of the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950 as modified on 11 May 1994.
Following his surrender ABDI BADRE Hayle shall not be necessarily incarcerated in the Detention Institution of Busto Arsizio or Piacenza in that he can be imprisoned in other correctional institutions".
The court then analysed the nature of the Badre assurance by reference to the tests set out in the ECtHR's judgment in Othman (Abu Qatada) v UK (2012) 55 EHRR 1. In that case the ECtHR was considering whether the UK was entitled to deport Mr Othman to Jordan, where it was alleged that he would face a "real risk" of torture. The UK government argued that it was entitled to rely on assurances given by the Jordanian government in a Memorandum of Understanding ("MOU") signed on behalf of both the Jordanian and UK governments that Mr Othman would be treated in accordance with his Article 3 rights if he were to be deported by the UK to Jordan.
In relation to the issue of whether reliance could be placed on an assurance of a receiving state concerning a deportee's treatment if returned, the ECtHR summarised its previous case law by stating:
". In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human-rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances.
189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving state's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(1) whether the terms of the assurances have been disclosed to the Court;
(2) whether the assurances are specific or are general and vague;
(3) who has given the assurances and whether that person can bind the receiving state;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;
(6) whether they have been given by a Contracting State;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state's record in abiding by similar assurances;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(10) whether the applicant has previously been ill-treated in the receiving state;
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State".
In Badre, McCombe LJ said, at , that questions (1), (2), (4), (6), (7) and (8) "at least" were of some assistance in the context of Article 3 and prison conditions. However, McCombe LJ concluded that the Badre assurance was too general and did not give any guarantee that Mr Badre would not be housed in the two prisons that were the subject of the Torreggianni "pilot judgment". The failure to give that specific assurance was, he said, "a serious weakness, reflecting on the letter as a whole".
McCombe LJ summarised his view at  and  as follows:
"52. I am far from saying that in no case can a court in this country safely order an extradition to Italy. Like [counsel for the appellant], I do not call into question for one minute the good faith of the Italian authorities in writing the letter that they did. However, it seems to me that, on the specific facts of this present case, the judgment of the European Court, together with the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union. This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 and the Respondent has not produced sufficient material to dispel that belief.
53. For my part, I would have expected at least some information as to whether bail might be available to the Appellant in Italy and on what terms, and, if not available or if not likely to be granted, some information as to the specific institution or type of institution in which the Appellant would be confined and some information as to the prevalent conditions in that institution or those institutions".
Hickinbottom J gave a concurring judgment. At  he stated:
"Whilst of course every case will be fact specific, in my view, in the face of a pilot judgment identifying a systemic failure of a state's prison system, a simple assurance from that state that the Article 3 rights of an individual (who if returned is at risk of being detained) will not be breached, will, without more, rarely if ever be sufficient to persuade a court that there is not a risk of such a breach".
In Florea this court followed the approach laid down in Badre. Florea concerned a request by a Romanian Judicial Authority for the surrender of a citizen of Romania on a "conviction" EAW. In the judgment of the court, given by Blake J, it was noted that the Supreme Court had held in R(EM) (Eritrea) v Home Secretary  2 WLR 409 at  and , that the test in relation to EU states was not whether the violation of Article 3 rights was "systemic" or "systematic" in a country, but simply whether it is shown that there were substantial grounds for believing that there was a real risk that the person surrendered would suffer treatment contrary to Article 3. In the very recent ECtHR decision of Tarakhel v Switzerland  ECHR 1185 on alleged Article 3 breaches because of conditions in Italian refugee centres, the Court noted the Supreme Court's reasoning and, effectively, agreed with it:see  and . The effect of these decisions is that a breach of Article 3 is likely only to be found if either there are systemic violations in the institutions of a Contracting State that is under attack or there is proof of individual problems sufficient to support a conclusion of substantial grounds for a belief in a real risk of Article 3 ill-treatment despite the starting point of the presumption of compliance in an EU state.
The evidence before the judges in both the appellant's case and that of the First Interested Party concerning the state of prison conditions in Italy and the Assurances offered.
The judge had expert evidence on prison conditions in Italy from two witnesses. For the defendant/appellant, the judge heard oral evidence from Alessio Scandurra, who is a researcher in the field of detention and who has been involved in a number of studies of prison conditions in Italy and elsewhere in the EU. He had produced a report dated 20 January 2014. The judge also heard oral evidence from Marco Perduca, a Senator from April 2008 to March 2013, who had been secretary of the Special Commission on Human Rights of the Senate of the Italian Republic. He gave a joint statement with Giuseppe Rossodivita, a criminal lawyer and member of the Regional Council of Lazio. Mr Perduca's evidence was given on behalf of the appellant.
The judge's findings concerning prison conditions in Italy at the time of the extradition hearing before her are set out at  to . It is easiest if we set them out here:
"41. Overcrowding is dealt with at page 20; it is explained by three factors: the number of non Italians in custody, harsh penalties for drugs offences and high levels of remand prisoners. In his report at p29 he outlines what the government has been doing since the delivery of the Torregiani judgment. Mr Scandurra accepted that the government has good intentions and that change would happen eventually. He explained that some prisons or wings of prisons are closed for refurbishment but then the money runs out. He gave as an example the prison in Arezzio. He did not anticipate that there would be new prison buildings in the next few years. He accepted that refurbishment might be carried out as there was money for that now.
42. As to the conditions in the prisons, the prisoners spend six to eight hours outside their cells and they can play sports such as football and basketball. Work is supposed to be available by law but the reality is very different.
43. The most up-to-date witness called in relation to prison conditions was Mr Perduca. His report is at tab 10 of the defence bundle. His evidence echoed the evidence I had heard earlier from Alessio Scandurra. He had been a member of the Senate from 2008 to 2013 and had written a report on prisons in 2011. He had visited between 28 and 90 prisons between 2008 and 2013. His last visit to a prison had been to one in Florence on 15th August 2013. The deadline to adopt the remedies to the problems described in the pilot judgment of Torregiani was 27th May 2014. Italy has since asked for another 12 months to adopt the recommendations.
44. The Government had hoped to be compliant within 12 months but their proposals had been diluted by Parliament. Mr Perduca said the number of inmates dropped for a few months then stopped. The figures at the end of May 2014 were the same as five or six months ago. 58 to 59 thousand are incarcerated and the Government says it has capacity of 48 to 49 thousand. He explained that although new prisons had been promised none yet had been built. In his experience of the prison system it would take years and years to upgrade the whole system.
45. In terms of individual prisons he knows that the Turin one has always 30% to 50% overcrowding. Recently he has spoken to the regional Ombudsman and to Parliamentary members. The overcrowding went down but it is still over capacity. The present policy appears to be to move prisoners around to less crowded prisons".
Also before the judge were two assurances. The first is dated 24 January 2014 and is from Maria Antonietta Ciriaco, Director of the department of Criminal Justice in the Italian Ministry of Justice. The second is dated 13 May 2014 from Giovanni Tamburino, the Director General of Detention and Treatment of the Department of Prisons within the Ministry of Justice. We have set out the terms of these two assurances in the Appendix to this judgment.
We should also note the terms of the assurance dated 17 December 2013, which had been given by the Italian authorities in the case of Mr Riva for the purposes of the hearing before DJ Zani in January 2014. This stated that his Article 3 rights would be respected and that he would not be sent to either of the two prisons that were the focus of the Torreggianni judgment: (see  of DJ Zani's Ruling). Since then a further assurance, dated 22 September 2014, has been furnished by the Head of Department of the General Directorate of Detention and Treatment in the Department for the Administration of Prisons in the Italian Ministry of Justice. Its terms are also set out in the Appendix to this judgment.
Returning to the case of the appellant, the judge concluded that there were substantial grounds for believing that the appellant, if extradited, would face a real risk of being subjected to treatment contrary to Article 3. On the evidence she had heard, that risk was more than fanciful: Ruling paragraph 49. The judge also found that there was "no evidence of sustainable change in the conditions of the prison in Italy since the evidence relied on in [Badre]": Ruling paragraph 50.
The judge then considered the assurance. She concluded that it was specific and went beyond that given in Badre. She noted that the assurance stated that the appellant would not be held at the two prisons (Busto Arisizio and Piacenza), which were specifically criticised in the Torreggianni decision of the ECtHR. The judge held that she was satisfied that the assurance of Mr Tamburino, a former judge who had worked in both Venice and Turin, could "bind the prison authorities" and that the court could expect "the prison authorities to be bound by the assurance given": Ruling paragraph 55. The judge was also satisfied that the assurance could be monitored in a number of ways, in particular through the UK "Liaison Judge" (in fact a CPS lawyer) working at the UK Embassy in Rome.
The judge therefore concluded that she could rely on the assurance and that if the appellant were to be extradited he would be held in prison conditions that would not breach Article 3.
In the case of Mr Riva, DJ Zani had before him evidence from Professor Maffei and Avvocato Annamaria Alborghetti. The latter had visited Taranto prison where it was anticipated that Mr Riva would be housed if returned. DJ Zani noted events since the Torreggiani decision, in particular the call by the Italian President to both Chambers of the Italian Parliament to take action on prison conditions and also a seven page letter dated 17 December 2013 from the Italian Ministry of Justice which set out the measures taken and those in train to improve conditions within the Italian prison estate. This letter (which we do not have in our bundles) contains exactly the same material as in the letter of 4 December 2013 that is in the bundle of "new" material produced by the respondent for Mr Elashmawy's appeal, although we were informed that this letter was in fact adduced before the judge at the hearing concerning the appellant's case. The 4 December 2013 letter was prepared as supplementary information in another case, that of Domenico Rancadore.
Should this court admit the further evidence sought to be admitted before it? How should this court apply the "Fenyvesi principles"?
Before us, the Respondent and Second Interested Party Judicial Authority wished to introduce further material concerning the current prison conditions in Italy. In summary, this material consisted of: (1) a statement of the head of the department of Penitentiary Administration in the Directorate General of Prisoners and Treatment in the Italian Ministry of Justice dated 5 November 2014 with a document attached; (2) a letter dated 2 October 2014 from the Director General of the same department in response to a "request for information" from the UK Liaison Magistrate in Rome (Ms Sally Cullen) dated 1 October 2014; (3) a copy of a letter dated 4 December 2013 from Maria Antonietta Ciriaco, "head of the office" of the office of the Director General of Criminal Justice in the Italian Ministry of Justice, to the UK Liaison Magistrate in Italy, (although we were told that a letter in identical terms dated 15 November 2013, which had been produced in Mr Badre's case, had been before the judge at the appellant's extradition hearing); (4) copies of documents prepared on 8 April 2014 by the Secretariat of the Committee of Ministers of the Council of Europe for a meeting of the Committee on 3 ? 5 June 2014; (5) various witness statements of Ms Sally Cullen, dated 5 and 17 November 2014 concerning proceedings in the Swiss courts relating to the extradition of a person from Switzerland to Italy, which had been resisted on the grounds of prison overcrowding and breach of Article 3. As noted above, the Respondents and Second Interested Party had not sought prior permission to introduce this evidence before us: it was simply produced as a separate bundle to the court at the hearing on 5 November 2014. Mr Alun Jones QC somewhat tentatively objected to this material in opening his appeal, but he firmly and formally did so in reply, after we had been taken though it by Mr Caldwell on behalf of the Respondents and Second Interested Party. Mr Jones submitted that if the new material was to be relied on by the respondent, then the appellant should be given time to respond to it and, if so advised, to obtain a further report from Mr Perduca commenting on the documents. A further report from Mr Perduca was thereafter obtained. We set a timetable for further written submissions to be made.
In the appellant's further written submissions of 10 November 2014, Mr Jones' starting point was that the court should apply the principles in Three Hungarian Judicial Authorities v Fenyvesi  EWHC 231 (Admin) ("Fenyvesi"), and should refuse to permit any of this new material to be adduced on this appeal. If, however, the new material could be adduced, then this court should consider Mr Perduca's response.
In Fenyvesi the appellant judicial authorities wished to adduce fresh evidence on the treatment of Romas in the justice system in Hungary in order to counter findings of the District Judge that (very broadly) the three defendants would be prejudiced at their trials and face prison conditions in Hungary in breach of Article 3 on account of their race. The District Judge therefore discharged the three defendants. The Hungarian Judicial Authority appealed. This court analysed the basis on which "fresh evidence" could be adduced and what effect it could have on an appeal against discharge under Part 1 of the EA. For this purpose the court had to construe section 29(4)(a) and (b) of the EA, which sets out the conditions for allowing an appeal from a decision to discharge a defendant, when a Judicial Authority raises an issue on appeal or it makes evidence "available" on appeal that was "not available at the extradition hearing" (section 29(4)(a)) and that "issue or evidence would have resulted in the judge deciding the relevant question differently": section 29(4)(b).
The judgment of the court was given by Sir Anthony May, President of the Queen's Bench Division. The court considered the position of both Judicial Authorities (under section 29(4)) and defendants, for whom the relevant equivalent provision in Part 1 is section 27(4). The conclusions of the court on the construction of section 29(4) (and its parallel, section 27(4)) and the issue of when "fresh evidence" can be adduced before a court on appeal from a decision of the District Judge under Part 1 of the EA can be summarised as follows: (1) sections 27(4)(a) and (b) and 29(4)(a) and (b) do not establish conditions for admitting evidence on appeal but conditions of allowing an appeal based on evidence that was "not available at the extradition hearing": our emphasis. (2) Subject to human rights considerations, the court will not, however, spend time (and expense) in admitting and considering evidence if it was plain that it was "available at the extradition hearing". (3) Evidence was not "available at the extradition hearing" if that evidence either did not exist at that time or was evidence which was not at the disposal of the party wishing to adduce it on appeal and which that party could not, with reasonable diligence, have obtained for the hearing below. (4) A party seeking to persuade a court that evidence proposed to be adduced on appeal was "not available" below should normally serve a witness statement explaining why it was not available. (5) The appellate court has to decide whether, if the evidence had been adduced below, the result would have been different (either way). In order to do so, the appellate court may have to consider that evidence with some care, short of a full rehearing. Effectively, the "fresh evidence" must be "decisive". (6) For defendants, but not for Judicial Authorities, the rigour of the terms of section 27(4) can be mitigated by Human Rights considerations by a "modulation" of section 27(4) by reference to section 3 of the Human Rights Act 1998. But even then the threshold remains high. For Judicial Authorities section 29(4) is of "no avail" if they are unable to come within its terms. (7) It is doubtful whether evidence of foreign law was a "significant parliamentary concern" underlying sections 27(4) and 29(4). The court will naturally wish to be properly informed as to relevant legal principles of the law of a foreign state.
Are these principles to be applied in the present case, where "fresh" evidence is sought to be introduced in order to uphold a decision below?
We note the following:
first, that there was no evidence either from the respondent Judicial Authority, or from the appellants on the issue of precisely what was before the judges at first instance, or on the "availability" of the "new" material at the time of the hearing before the judge. It would have been more satisfactory if we could have been given a fuller explanation of precisely what was and was not before the judge and why the new material was not, rather than leaving us to work this out for ourselves.
Secondly, it is clear that some material was before the judge concerning the evolution of prison conditions in Italy following Torreggiani. Thus, in the Core Bundle before us, at tab 24 there are records of the minutes of the 1193rd meeting of the Committee of Ministers on 6 March 2014 concerning the Torreggianni case in which the ministers made comments on the lack of progress in Italy and said that they would reconsider the matter in the meeting in June 2014. In that tab there is also a minute of the June 2014 meeting and "notes" of that meeting. As we understand it the minutes and notes of the June 2014 meeting were before the judge. We were informed by counsel that although the documents prepared on 8 April 2014 by the Secretariat General of the Committee of Ministers (which we will call "the April 2014 CoM material") were not physically before the judge, elements from those documents were put to the expert witnesses in cross-examination. Therefore the substance of that evidence was before the judge.
Thirdly, within the April 2014 CoM material there is a document headed "Progress of the Action Plan submitted to the Department for the Execution of Judgments of the ECtHR" that was prepared by the Italian Ministry of Justice. In it there is an explanation of the "official" basis on which prison capacity is calculated, at footnote 1 of page 6. It is, broadly, the same explanation as that given in the letter of 5 November 2014 in the first of the "new" documents.
The "Progress" document also contains other material about prison numbers and overcrowding.
Fourthly, the letter of 2 October 2014 details the total number of prisoners held in Italian prisons as at 30 September 2014, so could not have been available at the time of the hearing before the judge.
Fifthly, there is a further "new" document dated 5 November 2014 showing that prison capacity is 49,323 and the number of detained persons is 54,280, ie. the prisons are at 110% of capacity, using the "official" basis for calculating capacity.
Sixthly, although the letter of 4 December 2013 plainly could have been available before the judge but, apparently, was not, it seems that the Badre letter of 15 November 2013 in identical terms was before her.
Lastly, various witness statements of Sally Cullen, dated 5 and 17 November 2014, deal with the decision of the Federal Court of Switzerland dated 12 May 2014. That decision could have been made available before the judge and there is no explanation of why it was not. However, the essential document is a judgment of the Swiss court and its attitude to extradition to Italy post the Torreggiani case.
There is another witness statement of Sally Cullen dated 17 November 2014 (in response to Mr Perduca's further report of 13 November 2014), which deals with the calculation of the prison capacity issue. It also refers to a news report that the ECtHR had rejected 3,564 cases based on overcrowding in Italian prisons, on the ground that the claimants had not exhausted domestic remedies. Those rejections must have been a consequence of the ECtHR's decision in Stella and others v Italy (Application No 49109/09: "Stella") in which the Court noted (at ) that approximately 3,500 requests concerning overcrowding in Italian prisons had been received by the Court. In Stella the ECtHR reviewed the current position in Italian prisons and concluded that there were domestic remedies available to all the applicants in that case.
It seems to us that the circumstances of this case cannot be equated exactly with those in Fenyvesi or other cases in which one side or another attempts to put in "new" material in the hope of succeeding on appeal on the basis of that material. Nonetheless, we think that the analysis in the Fenyvesi decision is consistent with the concept that the appellate court should not allow parties carte blanche to adduce new material to bolster an existing decision in that party's favour, particularly if the material was "available" in the court below in the sense discussed in Fenyvesi. Taking that as our test, the letter of 4 December 2013 dealing with the Rancadore case was available to be put before the judge. We would have been inclined to exclude it but for the fact that it appears that a letter in identical terms dated 15 November 2013 dealing with the Badre case was before the judge and a further identical letter dated 17 December 2013 was before DJ Zani in Mr Riva's case. Thus both the judge (in the appellant's case) and DJ Zani were able to take the contents of those letters into account in assessing the conditions in Italian prisons. So far as the remainder of the "new" material is concerned, either it was, in substance, before the judge (the April 2014 CoM material) or it could not have been, as in the case of all the statistics of prisoner/capacity produced after the judge's Ruling was handed down. The important material concerning the meeting of the Committee of Ministers in June 2014 was before the judge and is not new.
If this were a true Fenyvesi case, we would have to go on to consider whether the new material is "decisive". Because, in this case, the material is adduced not so that the appeal will be allowed, but so that it will be upheld, perhaps on different grounds, the rigorous "decisive" test may not be applicable. But, obviously, we have to examine the material to see whether it has persuasive evidential value. We must do so in the context of the arguments of the parties.
Both Mr Jones and Mr Fitzgerald accepted that the court must be entitled to take account of both the law and facts as set out in the most recent ECtHR case on Italian prison conditions and Article 3, viz. Stella.
The argument of the parties on the prison conditions/Article 3 issue.
Mr Fitzgerald QC, for the First Interested Party took the lead in arguing this point and Mr Jones QC for the appellant adopted Mr Fitzgerald's argument. Mr Fitzgerald accepted that there is a strong presumption in the case of Council of Europe states that they will comply with their Article 3 obligations and that, in order to rebut the presumption, "clear and cogent evidence" is needed. He submitted that the Badre case demonstrated that the Torreggiani Pilot Judgment was sufficiently clear and cogent to rebut that presumption in the case of Italy in relation to prison overcrowding. Therefore, the burden shifted to Italy to "dispel the doubts" as to its ability to comply with its Article 3 obligations. It could only do so by providing assurances. But an assurance will only dispel the doubts if it is sufficiently specific and reliable and neither can be presumed. The assurance must be tested in accordance with the Othman criteria. It was clear from Badre that a general assurance was insufficient. The assurance given by Italy in Mr Riva's case before DJ Zani will not do, as it took the same form as that found to be insufficient in Badre. The new assurances proffered in Mr Riva's two cases remain insufficiently precise, both with regard to pre-trial detention and (if convicted) post-trial imprisonment. Moreover, the explanation of the figures and the basis on which prison capacity was calculated was unsatisfactory. There remains a real risk that Mr Riva would be placed in a prison that is not Article 3 compliant.
In relation to the material that was before the Committee of Ministers, Mr Fitzgerald submitted that the comments of the Committee of Ministers in June 2014 was equivocal and, in any case, did not have the same status as the decision of a court such as those in Torreggiani or Badre. As for the Stella decision of the ECtHR, although it refers to improvements in the Italian prison system, it was on admissibility only and was concerned with the non-exhaustion of domestic remedies. It is insufficient to "dispel the doubts".
Mr Jones emphasised the fact that the respondent Judicial Authority had not challenged the finding of fact of the judge, at  of her Ruling in the appellant's case, that he would face a real risk of being subjected to treatment contrary to Article 3 if surrendered to Italy. Mr Jones submitted that the two assurances given in relation to Mr Elashmawy (on 24 January and 13 May 2014) were insufficiently precise to satisfy the Othman tests. The new material, if relevant, was not sufficient to "dispel the doubts".
Mr Caldwell, for the Second Interested Party, led the arguments for the Judicial Authorities on this issue. He submitted that the Torreggiani case was no longer the starting point and it did not now rebut the presumption as far as Italy was concerned. Therefore Badre had to be reconsidered. The reason why the ECtHR took Torreggiani as a Pilot Judgment case was the lack of effective remedies for the alleged breaches of Article 3 in relation to Italian prison conditions: see the ECtHR's judgment at  ? . The remedies have now been put into effect, as is demonstrated by the Stella decision. There is now no longer a "real risk" that extradition would result in the requested persons being incarcerated in breach of their Article 3 rights because there would be an effective remedy: both for any past breach and as to the future. The record of the "Decisions" of the Committee of Ministers of 5 June 2014 showed the progress made by Italy. Moreover, the number of prisoners as at 5 November 2014 showed that the prison population was now at 110% capacity and that calculation was based on the official figures for space per person of 9m2 plus 5m2 per additional person per cell, whereas the ECtHR minimum space was 3m2 .
Mr Hardy QC, for the respondent, adopted Mr Caldwell's submissions. Mr Hardy emphasised that the Judicial Authority had not accepted, before the judge, that Italian prison conditions were not Article 3 compliant. He submitted that if the judge had had all the evidence now before the court, together with the ECtHR decision of Stella and perhaps the Swiss court decision, she would have decided differently the issue of fact on whether the Italian prison conditions were in breach of Article 3. As for the new assurance, it identified the prisons to which the appellant would be sent; stated that they were not overcrowded and that the position could be monitored.
Assessment of the materials and conclusions on the Article 3/prison conditions ground.
The Article 3 test in the context of extradition is whether there are substantial grounds for believing that there is a real risk that the person extradited would be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions upon his return and (if convicted) during any imprisonment. To make a conclusion based on this test the court has to examine the present and prospective position as best it can on the materials now available. In "prison condition" cases the factual position is unlikely to be static. There may be new evidence about the conditions in a country generally or a particular prison where the position has already been considered by a court. The view of any court, even the ECtHR, on prison conditions in a country or a particular prison at any time is only definitive at the time that the view is expressed. If cogent evidence is adduced which demonstrates that the view a court took previously about prison conditions generally or in a particular prison can no longer be maintained, then the court must review again the evidence about the relevant prison conditions. Evidence is unlikely to be treated as cogent unless it demonstrates something approaching an international consensus that the position has changed. To adopt a lower threshold would introduce an unacceptable degree of uncertainty in the area. But, an obvious example where the test may well be satisfied is where the Strasbourg or Luxembourg courts have held a Contracting or Member State to be in breach of its Article 3 obligations regarding prison conditions, has required that remedial measures be undertaken, which have then been implemented and upon which the Committee of Ministers or the ECtHR have then indicated views.
It must follow that, even assuming that the ECtHR's pilot judgment in Torreggiani could rebut the presumption that Italy will conform to its Article 3 obligations with regard to prison conditions at the time that this court was considering the matter in Badre, it cannot do so now; events have moved on. We have to consider the evidence now before us which we regard as cogent. In our judgment the evidence before this court, consisting of both the material that was before the judge (and before DJ Zani) and the "new" material, is decisive in proving that the situation is now very different from what it was when the ECtHR pronounced Torreggiani. Therefore, unlike the court in Badre, this court cannot and so must not now treat Torreggiani as the starting point or "bench mark". Nor can this court be bound by the factual findings made in Badre. We have to assess what the cogent evidence before us establishes the position is on prison conditions in Italy now and what they are likely to be in the near future.
First, the Italian Ministry of Justice "Action Plan" document submitted to the Committee of Ministers in April 2014 (after their meeting in March 2014) demonstrates that Italy had introduced new laws to provide both effective "preventive" and "compensatory" remedies for any Article 3 violations because of prison conditions. The document also indicates that there had by then been a significant decrease in the number of prisoners: 6000 less than at the time of the Torreggianni judgment. Further, it shows that Italy had taken steps to introduce alternative measures which would reduce the prison population even more. There was still overcrowding (an occupancy rate of 1.24 as at 21 March 2014) but that was on the official parameter of 9m2 per person, not the ECtHR minimum figure of 3m2 per person.
Secondly, the "Notes" on the Torreggiani case for the June 2014 meeting of the Committee of Ministers record that the new "preventive" measure introduced by the Italian state would enable a prisoner to make a complaint to a supervisory judge about breaches of Italian penitentiary law, including overcrowding. There were also new enforcement procedures, which were reinforced by a decision of the Constitutional Court underlining the obligation of the penitentiary authorities to respect such orders. The Committee of Ministers also noted the intention to introduce a compensatory remedy. Finally, it is noted that "as of 19 May 2014 the number of prisoners has decreased below 60,000 (59,555) and that at present no prisoner enjoys a vital space of less than 3m2 ." The "Decision" of the Committee of Ministers welcomed all these steps and decided to reconsider the Torreggiani and associated cases again in June 2015.
Although we take Mr Fitzgerald's point that these are not the findings of a court such as the ECtHR, nonetheless, the Committee of Ministers' acceptance of these points carries great weight. As the ECtHR recognised in its judgment in Torreggiani, under Article 46(2) of the ECHR it is for the Committee of Ministers to evaluate the implementation of individual or general measures taken in execution of the Court's judgment. If the Committee of Ministers concludes that there has been progress, this court can hardly question that view.
Thirdly, the Stella admissibility ruling of the ECtHR is important, not least because it is actually the decision of a court that considered up to date relevant facts. All 11 applicants reported being held in overcrowded cells and had living space of 3m2 and suffered from poor cell ventilation, lighting and heating. The judgment sets out the steps taken by the Italian government since Torreggiani. It noted the current prison numbers in Italian prisons, viz. 54,252 and it noted that the capacity figure of 49,797 was based on a personal living space of 9m2 per inmate plus 5m2 for each additional person in a cell. At  of the judgment it states: "Finally, according to information provided to the Court by the Italian government, there is currently no prisoner in Italy who has less than 3 square metres of personal living space".
The issue before the court was whether there were any effective domestic remedies whereby a prisoner who complained of overcrowding could obtain practical redress. The ECtHR concluded that the new appeal procedures available to prisoners who complained of overcrowding were effective, not least because the current situation in the Italian prison system seemed to offer the competent administrative authorities "a more favourable context for the effective implementation of judicial decisions". The Court summarised the new legislative measures taken regarding penal policy and the steps taken to renovate existing and build new prisons. The ECtHR emphasised that the Committee of Ministers was responsible for evaluating the measures taken by a defendant state to fulfil its obligations. However, it summarised the ECtHR's own view of the current state of Italian prisons at  as follows:
"?the Court can only be pleased with the Defendant State's commitment. It appreciates the significant results obtained up to now through the considerable efforts made by the Italian authorities on many levels and notes that the problem of prison overcrowding in Italy, although it still exists, is now much less dramatic. The Court can only encourage the Defendant State to continue this positive trend in continuing the efforts made thus far to resolve the contentious issue and to ensure that each inmate's living conditions are consistent with the Convention's principles".
The ECtHR's conclusion was that there was an effective route of appeal to enable prisoners to obtain redress in cases of alleged overcrowding and appropriate living conditions: the so-called "preventive" remedy. The Court also concluded that there were effective "compensatory" remedies in the form of a reduction in sentence and monetary compensation.
Fourthly, the letter of 2 October 2014 from the Ministry of Justice confirms that Law 117/2014 had been passed, providing for compensation for breaches of Article 3 rights. In addition there had been changes to various criminal law provisions with the consequence that prison numbers were reducing. The official statistics for the prison population on 5 November 2014 shows that the prison numbers were 54,280, compared with an official capacity of 49,323. The latter figure is based on the official space allowance of 9m2 per person.
Fifthly, there is the decision of the Swiss Federal Court of 12 May 2014. In that case the Federal Office of Justice had appealed against an order of the Criminal Court of Appeal which (in the light of Torreggiani) had imposed a condition on the order for the extradition of a requested person from Switzerland to Italy that "in case the request for extradition should be granted, the requested person shall be granted prison conditions compliant with the provisions of Article 3 of the ECHR". The judgment was promulgated before the Committee of Ministers' meeting in June 2014. However, after the Swiss court had reviewed all the measures that had been taken by Italy following the Torreggiani decision, it concluded that there was "no serious doubt" that Italy would do its best, even without any express request for formal safeguards, to ensure that prison conditions respected "human dignity for persons to be prosecuted whose extradition was being sought from Switzerland": para 4.5. The court held that the extradition to Italy could take place without the need for any "formal safeguards on the side of Italy": para 5.1.
We have considered carefully the additional statement of Mr Perduca served on 13 November 2014. The principal point he makes is that the official number for the legal capacity of Italian prisons of 49,327 is over-stated because some 5,000 places must be subtracted from that figure to take account of "transitional situations". Mr Perduca also states that there is no up to date information on the state of renovation and restoration works in Italian prisons, so therefore no accurate figure of the number of places actually available. He points out that the situation in Italian prisons was considered at the UN Council on Human Rights at the end of October 2014 and none of the delegations congratulated Italy on having reached "definitive results" in this area. Mr Perduca also notes that the "compensatory" remedy that has been instigated is for only ?8 rather than ?20 as suggested by the Strasbourg court and it is not automatic but subject to a judicial process. Lastly, he states that neither the Committee of Ministers, nor the ECtHR, nor yet the Italian government itself has said that Italy "is in compliance" with its Article 3 obligations so far as prison conditions is concerned.
We take note of that evidence. We are prepared to accept that prison numbers are higher than the official capacity, but that is based on a higher figure for personal space than the bare minimum required by the ECtHR. We also accept that prison conditions in Italy remain problematic and that many more reforms may well be necessary. However, the task of this court is simpler. We have to decide, in the first place, whether there are substantial grounds for believing that there is a real risk that the appellant, if surrendered, will be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions in Italy. Taken overall, and bearing in mind the high threshold, we are satisfied that the evidence demonstrates that there are not substantial grounds for believing that there is a real risk that the appellant, or Mr Riva, would face prison conditions that were in breach of Article 3 upon extradition to Italy. Either the presumption is restored that Italy, as an EU state, will fulfil its Article 3 obligations; or Italy has proved, by cogent evidence, to relieve the doubts.
That makes it unnecessary to consider whether the assurances that have been proffered in both the appellant's and Mr Riva's case are sufficiently precise. They are not needed. But, in the light of all the other evidence of the progress made in Italian prison conditions since Torreggiani, we regard the fact that these assurances have been given by the responsible authorities as yet further evidence of the good faith of the Italian authorities.
We therefore dismiss this ground of appeal. We also hold that, so far as the First Interested Party is concerned, there are no substantial grounds for believing that there is any real risk that he would suffer breaches of his Article 3 rights if extradited to Italy. That conclusion will bind him, unless there is some quite unforeseen change of circumstances by the time of the hearing of his appeal in the Taranto court matter, which we do not envisage there will be. The remaining grounds of appeal will have to be dealt with at a further hearing, for which the parties to that case should seek directions.
This judgment must be regarded as definitive of the issue of Article 3/prison conditions in Italy unless and until cogent further evidence impels a review of the position or demonstrates that the general conclusions we have reached cannot apply to the particular circumstances of an individual case, for which a particular, specific assurance may be needed. We doubt very much that a single expert report could impel such a review. It will, in general, require something like an international consensus or the considered view of the ECtHR or that of the Committee of Ministers.
We dismiss the appellant's appeal on all three grounds.
Assurance of 24 January 2014 in relation to Mohammed ElAshmawy.
RE: ELASHMAWY Mohamed Born on 21 March 1972.
The Ministry reassures that also in case of surrender for European Arrest Warrant to the Authorities of the United Kingdom of Great Britain and Northern Ireland the Egyprian national ELASHMAWY Mohamed shall be held in conditions compliant with the provisions laid down in articole 3 of the European Convention for the protection of Human Rights and fundamental freedoms, signed in Rome on 4.11.1950 and amended on 11.5.1994.
Following his surrender, Mr ELASHMAWY Mohamed will have not necessarily be held in custody in the penitentiary institutions of Busto Arsizion or Piacenza, as he may also be restricted in other penitentiary institutions".
Assurance of 13 May 2014 in relation to Mohammed ElAshmawy.
Re: European arrest against ELASHMAWY Mohamed born in El Menoufa (Egypt) on 21/03/1972
I hereby assure the competent authorities of the United Kingdom that in the event that ELASHMAWY Mohamed is surrendered to the European arrest warrant issued by the Office of the Prosecutor General of the Republic attached to the Court of Appeal in Brescia on 24.10.2013, he will commence and serve his sentence at the prisons of C.C. Torino or Biella, which are now not overcrowded, and will not serve his sentence at Busto Arsizio or Piancenza or any prison that is not compliant with Article 3 of the ECHR.
Assurance of 22 September 2014 in relation to Fabio Arturo RIVA
Re: European Arrest Warrant for Riva Fabio Arturo born in Milano on 20/07/1954
I hereby assure the competent authorities of the United Kingdom that in the event that Fabio Arturo Riva is surrendered pursuant to the European Arrest Warrants issued by the Preliminary Investigations Judge at the Court of Taranto on 16/01/2013 and by the Preliminary Investigations Judge at the Court of Milan on 21/02/2014, if he is remanded in custody, he will be held at the prison of Pavia or Milano Opera or Lecce or Taranto or Perugia and will not be held at Buso Arsizio or Piacenza or any remand centre that is not compliant with Article 3 of the ECHR.
If he is later sentenced to a custodial term, he will commence and serve his sentence at the prison of Milano Opera or Lecce or Perugia which are now not overcrowded, and will not serve his sentence at anyGerman Constitutional Court (Bundesverfassungsgericht, Order 2 BvR 2735/14, delivered december, 2015) prison that is not compliant with Article 3 of the ECHR.
German Constitutional Court (Bundesverfassungsgericht, Order 2 BvR 2735/14, delivered december, 2015)
Please refer to my post on LinkedIn: "Constitutional identities of Member States as limit to Union law: does the wall of mutual recognition collapse on respect of fundamental rights?" https://www.linkedin.com/pulse/constitutional-identities-member-states-limit-union-law-canestrini
- Torreggiani Sentence (European Court of human rights, sentence, January, 8, 2013);
- Badre v Court of Florence, Italy  EWHC 614 (Admin) (11 March 2014);
- Rancadore v The Court of Appeal, Palermo, Italy
- Bundesgerichtshof decision 1C_176/2014.
- Italian High Court refuses extradition to Serbia for the risk of inhuman treatment in serbian prisons
- Want more? Please refer to italian extradition rules codified in the Italian Code of Criminal Procedure (copyright CEDAM Wolters Kluwert, 2014, extract for study purpose).