England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2012

Lady Justice Rafferty:

1. The extradition of the appellant Nicolae Nastase is sought by the respondent State Prosecutor, Trento, an Italian Judicial authority, pursuant to an EAW 'conviction warrant' issued on 8 May 2008 in respect of an alleged robbery committed in 2004. The judgment of the Court of Trento dated 11 October 2007 became final and enforceable in Italy on 26 November 2007.
2. The appellant was arrested in the United Kingdom and after contested extradition proceedings DJ Zani in a judgment dated 17 April 2012 rejected his arguments. The focus was and remains on s.20 of the 2003 Extradition Act ("the 2003 Act"). The appellant argued that he was neither present at nor deliberately absent from the trial which founded the conviction upon which the EAW is based, and that the judicial authority failed to demonstrate to the criminal standard that if extradited he would be entitled to a retrial or that it or appellate proceedings would satisfy the requirements of the 2003 Act. He relied upon s.20(5) and (8). He poses this question: What does "entitled" in s.20 mean?
3. The appellant's case is that an analysis of statute and of authority reveals "entitled" to mean enjoyment of an unfettered right under law not subject to discretion and that on either party's case there are reasonable doubts about whether he would be entitled to a retrial if extradited.
4. He argues that he enjoys a right restricted to an application to renew a time-limit to lodge an appeal. The judge has a discretion to grant or refuse it, exercised by reference to material outwith the access of courts in the UK. The consequence for which he argues is that an extradition court in this jurisdiction cannot assess the likely or possible outcome. In addition, before extradition the judicial authority must show the existence of clear rights as to a retrial process to ensure compliance with s.20(8) of the 2003 Act.
5. The Respondent contends that the evidence before this court and the District Judge shows that the appellant would be entitled to a retrial on return. Further, his rights set out in section 20(8) on return to Italy will be respected. Italian law provides for a retrial compatible with Article 6 of the European Convention on Human Rights and the 2003 Act. The DJ's decision was correct and consistent with appellate jurisprudence.

The legal framework

6. Section 20 reads where relevant as follows:

"20. Case where 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….

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial….

(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….

(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 interests 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."

The legislative background

7. The Council Framework Decision of 2009 ("the 2009 Framework") describes itself as "amending Framework Decisions…..thereby enhancing.. .procedural rights…and fostering the application of the principle of mutual recognition to decisions rendered in …absence…"
8. Article 4a where relevant permits refusal to execute an EAW in respect of a conviction in absentia unless the subject were timeously summoned in person or notified of the date and place of his trial and that a decision might be handed down if he did not appear, or counsel represented him, or, served with the decision and informed of his right to a retrial, he did not contest the decision or did not request a retrial within the applicable time frame.
9. The alterations effected by the 2009 Framework by and large mirror s.20. Against that backdrop the Appellant argues that "request" means "exercise the right of requiring a retrial" and that the enquiry created by s20 is evidential, based first on the EAW and then on any supplementary evidence the requesting state provides.

The present case

10. The EAW is criticized as misrepresenting the factual position and, as a consequence, being silent as to relevant Italian law. Box E in part reads:

"The person concerned was sentenced by a judgment issued against a person declared to be a fugitive from justice by the order of the Judge for Preliminary Investigations of Trento issued on 7, June 2005 and notified by means of service on his defence counsel on Oct. 25, 2007 to Art 165 of the Criminal procedure code."

This is said to suggest that the Appellant was (i) a fugitive and (ii) notified by service of documents on his counsel of the sentence imposed. It is said not to acknowledge that he was not deliberately absent and had a court-appointed lawyer acting without instructions rather than a lawyer acting on instructions whom he had appointed.

11. Four sets of further information were provided by the Judicial Authority in response to requests from the lower court. The first is covered by a note from the Italian Ministry of the Interior dated 3^rd September 2011. It contains a 3^rd August 2011 letter from the public prosecutor in Trento stating that the police searched for Nastase who was declared a fugitive on 7^th June 2005, and a copy of the warrant for desertion issued by the Court of Trento which notes that exhaustive attempts to find him were in vain and that he escaped voluntarily. It appoints counsel for him and orders notification of his fugitive status to be served on counsel. 8^th May and 15^th September 2005 reports from the Trento Carabinieri confirmed that searches for him had been unsuccessful.
12. The public prosecutor responsible for the information in the EAW wrote:

"This office cannot assure that [Nastase] will be subject to a new trial as his judgment of conviction has already become final.

It is necessary however to specify that according to this constant case-law of the Court of Appeal, if the convicted person submits the said request, the Court of Appeal judge shall grant an out of time appeal in terms of Article 175 of the code of criminal procedure ("the Italian Code")with the consequent celebration of a new trial."

13. The judicial authority's translated Article 175 provides, so far as relevant:

"Article 175 – Out of time appeal

1. The Public Prosecutor, the private parties and the defence counsel can lodge an out of time appeal if they can prove that they could not comply with the set time limit for a fortuitous even of force majeure…

2. If a judgment or a decree of conviction was rendered in absentia, the defendant may, upon his request, be granted a new term to lodge an out of time appeal, except when he has had actual knowledge of the proceedings or order and he voluntarily renounced to appear or to file an appeal, or opposition. The judicial authority shall carry out the necessary controls."

3. […]

4. The decision on the request shall be made by the judge trying the case at the time the request is submitted. The before the case is remitted to trial, the said decision shall be made by the pre-trial investigation judge. When the judgment or decree of conviction has been pronounced, the decision shall be made by the judge competed in respect of the appeal or opposition."

14. The Appellant submits that on its face this suggests that a retrial would depend on whether following an application the Court of Appeal granted one and that there is thus a discretion to refuse.
15. An 11 October 2011 response by the prosecutor to questions from the Crown Prosecution Service reveals his view that Nastase was legally informed of the hearing, but neither arrested nor interviewed and "therefore there was no subsequent order or obligation". He was declared a fugitive, defined as "a person who voluntarily escapes precautionary custody, house arrest, prohibition on leaving the country and obligation of residence or an order of imprisonment". As to Article 175(2) the prosecutor writes "The...person may request an out of time appeal …when he can prove he did not have effective knowledge of the order"
16. The Respondent concedes this was in error as to the burden of proof. The correct position was set out in the Ministry of Justice's evidence of 19 March 2012 and supported by Prof Iorio the appellant's expert before the District Judge. It would be the judge's responsibility to demonstrate effective knowledge on the part of the applicant before he, the judge, could refuse an application under Article 175.
17. The fourth set of further information from the Italian Ministry of Justice dated March 19 2012 attaches the judgment of the Court of Cassation in Judgment 1805 delivered on January 20 2011.
18. On Article 175 it wrote:

"…as a consequence of the amendment to Article 175 …….the "unaware" (i.e. not aware of the proceedings against him/her) defendant tried in absentia is automatically allowed to obtain the restoration within the term to lodge an appeal …

"Automatically" means that the convicted person is not obliged to demonstrate that his/her being unaware depends on his/her own fault.

As a matter of fact, the restoration is excluded only if the judge can prove (carrying out all the "necessary controls") that the defendant "has had actual knowledge of the proceedings or order and he voluntarily renounced to appear or to file an appeal, or opposition."

It added:

"The reopening of the proceedings is never limitless and without conditions (or in the direct responsibility of the defendant), but it is possible when the appeal judge believes he cannot decide on the basis of acts and evidence already gathered before the first instance judge. The defendant can also trigger this process. The judge is entitled in all respects to order ex officio the renewal of evidence if he/she deems it necessary to make a decision on the matter"

19. The judgment of the Court of Cassation in case 1805 shows that a person convicted in absentia whose term of appeal is restored may obtain the renewal of the proceedings on appeal, without exclusion of these benefits because the person was classified as a fugitive. A person tried in absentia and not aware of the proceedings shall always have the right to obtain the renewal of the trial under Article 603(4) of the Italian Code of criminal procedure.
20. The second document is the judgment in case 1805/2010. The second ground of appeal was whether the appellant were entitled to a renewal of the trial based on the condition that he had no knowledge of the first judgment. It is summarised in part:

"Article 175 was amended to comply with the dicta of the ECHR and to add safeguards concerning a defendant's participation in the trial. It is not up to the defendant to prove he did not have actual knowledge of the proceedings, judgment or conviction where he failed to appeal. The burden of showing in the evidence that a person does not satisfy Article 175 is on the judge;

There is a contradiction between Article 175 as amended with Article 603(4). The appellant submitted that an opportunity to appeal was insufficient if there were no remedy to allow a person who has restored proceedings to exercise the rights available at first instance;

The resolution of this contradiction lies in the correct interpretation of Articles 175(2) and 603(4) of the Code. Where the person has been restored within the term to file an appeal on the ground he had not been informed of proceedings and logically had no knowledge of the charges, he is entitled to a renewal of the trial. There are no procedural findings that the defendant negligently or intentionally avoided knowledge of the trial;

The decision of the lower court, that a person unlawfully at large was barred from exercising rights to renew evidence available at first instance on appeal, was annulled and remitted to the Court of Appeal of Florence for a renewal of the trial."

21. The Appellant before us argues that the concept of automaticity nowhere features in the judicial authority's evidence and that "automatically" as defined by the Ministry of Justice does not mean "as of right", only that the applicant bears no burden to prove innocent ignorance of the proceedings.
22. Thus, so the argument goes, the question of renewing evidence also involves a measure of discretion. Accordingly, the judicial authority has not provided a clear and correct account of the operation of Italian law. Its material is internally confusing and at odds with the Ministry of Justice's on key points. This Court is left to bridge gaps, make assumptions, draw inferences, and resolve contradictions and uncertainties about the application of foreign law. That is unacceptable in principle Mucelli, R (on the application of) v The Government of Albania [2012] EWHC 95 (Admin). Nor is mutual trust the solution since it can inform only the approach to clear statements by the requesting state.

The District Judge's decision

23. Professor Paolo Iorio an Italian academic and lawyer gave evidence to the DJ. Since then, the judgment of this court in Rexha v Officer of the Prosecutor, Court of Rome [2012] EWHC 3397) included significant anxieties about aspects of his evidence in that (Rexha's) case which it is unnecessary to rehearse. Sensibly, Mr Watkins for the appellant advanced his arguments before us without reliance on Professor Iorio although he did not formally abandon his evidence. Consequently it is unnecessary for me to consider Professor Iorio's opinion and, like Mr Watkins himself, I have had no difficulty reaching a conclusion whilst putting it aside.
24. The judge is criticised as incorrect on many more fronts than the meaning of "entitled". On the burden of proof, having correctly acknowledged that the "requesting judicial authority have [sic] the burden of proving beyond reasonable doubt that the requested person deliberately absented himself from his trial", when considering the burden under section 20(5), he is said to have changed his approach when he found:

"[Counsel]… seeks to demonstrate that Mr Nastase will, in effect, be denied a retrial. If, in fact, he is able to raise a reasonable doubt such that this court cannot determine to the criminal standard that a retrial is guaranteed, then Mr Nastase must be discharged."

25. He is said wrongly to have relied upon an assessment of Italian law in unrelated cases, whereas S.20 necessitates a circumstance-specific evidential enquiry. It is not the appellant's case that Italian law is incapable of providing retrial proceedings to defendants convicted in absentia, rather that the granting of a retrial is too uncertain.
26. He is said to have conflated Article 6 ECHR with s.20. Status as a contracting party does not short-circuit the S.20 enquiry: Bohm v Romanian Judicial Authority [2011] EWHC 2671(Admin)
27. He is said to have failed to address arguments as to out-of-time appeal proceedings and wrongly to have fortified his conclusions based on general principles of mutual trust.
28. In what the appellant described as the kernel of his judgment the DJ said:

"24. The further information dated 19 March 2012 accompanying the decision of the court of Cassation released on 20 January 2011 (Judgment 1805) states- and I accept- that an 'unaware' person, ie one who is not aware of proceedings against him and who is tried in absentia, is automatically allowed to obtain the restoration of the term to lodge an appeal. This does not mean that the person must demonstrate that being aware depends on his or her own fault. Such a 'restoration' is only excluded (ie refused) if the judge who considers the application to appeal, is satisfied that Mr Nastase had actual knowledge of the proceedings and voluntarily renounced the right to either (a) appear or (b) to have filed an appeal within time. In this present case there is no evidence produced that Mr Nastase did either.

25. I therefore proceed on the basis, as previously mentioned, that there is no evidence before me that Mr Nastase was aware of the trial process in Italy. I am satisfied that, on the information produced, he is not to be treated as a fugitive from the Italian justice system. I am entirely satisfied that Mr Nastase will have the right to make application, upon surrender, to launch an appeal. I am further satisfied on the information placed before me that there is no reason to believe that such an application will not be granted by the Judge and that, indeed, even if it were to be rejected, then Mr Nastase will have an unrestricted right to appeal against that decision."

Case Law

29. In Gradica v Public Prosecutor's Office Attached to the Court of Turin [2009] EWHC Admin 2846, the Divisional Court considered the intersection of Article 175, Article 6 ECHR and s.20 of the 2003 Act. At paragraphs 31 and 35 Pill LJ, with whom I agreed, said:

"31. For the respondents, Mr Lewis QC submitted that the required safeguards are in place in Italian law. That is sufficient; it is not for the court to predict, or to lay down, what form the retrial should take. In her September 2009 statement, Ms Ciriaco, for the judicial authority, reiterates that the wording of article 175 of the Code, as amended following the decision by the ECtHR in Sejdovic, complies with the principles enunciated by the ECtHR. It allows the "unaware defendant judged in absentia … to be automatically granted the out of time appeal (or rather that without being forced to demonstrate that his unawareness depends on his responsibility".

…

35. Like the District Judge, I accept the evidence of the judicial authority. Having considered the four experts' reports, I confess that I am less clear than I would like to be about the operation of some of the provisions described. What I regard as crucial, however, is the clear evidence that the provisions of the Convention are applied in Italian criminal trials. Notwithstanding the reservations he has expressed about its operation in practice, Professor Voena notes in his report that "the Italian system has … inserted a series of guarantees, literally copied from article 6 of the European Convention of Human Rights into article 111 of the Constitution". I am satisfied on the evidence that adequate assurances have been given that, on the appellant's return to Italy, the Italian courts will afford him the rights guaranteed in article 6 of the Convention."

30. The approach in Gradica was endorsed in Tous v District Court in Nymburk, Czech Republic [2010] EWHC 1556 (Admin) where Cranston J said:

"12 The upshot of Murtati v Albania [2008] EWHC 2856 (Admin) and other authorities such as Gradica …is that, in cases where a person has been tried in his absence, evidence that Article 6 has been incorporated into the law of the requesting state and that that state recognises the case law of the European Court of Human Rights supports a finding that the requirement of section 20(5) of the 2003 Act is satisfied. The statutory safeguard in section 20(8) is satisfied where the requesting state can show that its law complies with Article 6. For a requested person to succeed in an argument that he should be discharged under section 20 he must show that subsequent proceedings would not comply with Article 6 .

13 As far as the burden of proof is concerned, it is on the judicial authority to satisfy the court about answering the questions in section 20 in the affirmative and it must do that to the criminal standard (section 206). However, in my view, the requested person must adduce some evidence at least which raises an issue that the guarantee in section 20(5) might not be met in the requesting state. It is not for the requesting state to prove affirmatively in the absence of such evidence that the guarantee will not be met. Support for that comes from the decision of Baksys v Lithuania [2007] EWHC 2838 (Admin)."

31. In Benko v Law Enforcement Division of Veszprem County Court, Hungary [2009] EWHC 3530 (Admin) a Divisional Court of Dyson LJ and Tugendhat J considered whether a retrial, dependant on the requested person's application, complied with the requirements of s.20 of the 2003 Act and held:

"19. …Da An Chen,…records that there was evidence of Romanian law, which is specific, ……That is true as a statement of fact. It does not follow that it is a requirement in all cases that such evidence should be put before the court by the judicial authority. [Counsel] submits that …..ambiguity should be resolved in favour of the appellant.

20. In my judgment,….Hungary is a Council of Europe country and the two letters ….by the judicial authority are sufficient prima facie evidence to satisfy the burden of proof in this case. We must construe the letters in the light of Hungary's obligations under the European Convention on Human Rights. If an appellant is to displace such a prima facie case, it is for him to adduce evidence to the contrary. He has not attempted to do that in this case."

32. In Da An Chen v Romania [2006] EWHC 1752 (Admin) Mitting J said: "'Entitled' as a matter of ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking a court to exercise a discretion."
33. In Ahmetaj v Prosecutor General Attached to Court of Appeal Genoa [2010] EWHC 3924 (Admin) a Divisional court of Laws LJ and McCombe J considered an EAW seeking the appellant's return to Italy The appellant resisted extradition on the basis that he would not be granted a retrial on return. It was not disputed that the appellant was absent when convicted. Laws LJ said:

"7. How clear is the evidence that the appellant would be entitled to a rehearing on the merits if he were returned to Italy? That seems to me the question at the centre of this appeal. The European Arrest Warrant itself has this:

"He would be entitled to a new trial when surrendered in case of review of the same trial (new evidence)".

The prosecutor's note of 10 July 2009 to which I have referred in passing has this at paragraph 2:

"As to the possibility of being granted a review of the proceedings it is allowed without time limit but only in the case that the facts upon which the conviction is based are in contrast to those established by another final judgment or in the case that new evidence emerges in his favour."

8. Those documents, so far as they go, appear to suggest that there exist considerable qualifications upon any right which the appellant may enjoy to unfettered retrial. The further note of 14 August 2009 from the Ministry, ….appears to turn on the application of ….Article 175(2)…:

"If a judgment or conviction decree is pronounced in absentia then the defendant shall be allowed a new turn to lodge an out of time appeal or opposition upon his request except when he/she has had effective knowledge of the proceedings or the decision and has voluntarily waived to appear or to lodge an appeal or opposition."

Having considered further information from the Italian Judicial authority on the operation of article 175 Laws LJ said:

"10. … it is clear that under Article 175(2) as amended, a defendant who is absent from his first trial will be granted what may be called a fresh merits hearing without strings or conditions unless he deliberately evaded the trial on the first occasion. In the circumstances the approach there explained is in accordance with what was said by Lloyd-Jones J in Daniele, R (on the application of) v HM Prison Wandsworth & Ors [2006] EWHC Admin 3587, paragraphs 39 and 41, and in this court in Gradica v Public Prosecutor's Office Attached To the Court of Turin [2009] EWHC Admin 2846, per Pill LJ. …."

12. The Italian documents, generally, are laden with a degree of uncertainty. ….A document in response to enquiries made ….dated 17 March 2010, from the Ministry of Justice in Rome… contains the following:

"The position of [Ahmetaj] in the proceedings is such as to lead to us hold that he has to be granted an out of time appeal and be entitled to a new trial in the appeal phase. As a matter of fact, he never had any contact with the Italian judicial authorities and has always been represented by a court-appointed defence lawyer. All the requirements for the application of Article 175 of the Italian Code of Criminal Procedure are met in its new wording."

After reference to the interpretation of Article 175, as amended, Laws LJ continued:

"In other words, the defendant can obtain a new trial in the appeal phase without being compelled to provide any proof for the sole fact of being absent at the trial, while his request can only be rejected if the judge who receives it can offer on the contrary proof that the defendant had effective knowledge of the proceedings.

...

14. ….The fact is that the executive authorities, in particular the Ministry of Justice itself, have stated …..their position entirely clearly to the effect that the benefit of Article 175(2) falls to be accorded to the appellant. I apprehend there is a theoretical possibility that a judge might, on some basis, take the point for himself as to whether or not the appellant was deliberately absent from his trial on the first occasion. I find it quite impossible to discern any reason why a judge might do so against a background in which the prosecuting authority, we may be confident, will be asserting as firmly as they may that he was not deliberately absent. That possibility seems to me to be so remote that it can be discounted. If that proves to be a mistake, something will have gone badly wrong with the procedure and the Italian authorities will, no doubt, in that highly unlikely event, be very concerned…it seems to me that the District Judge was well justified in holding that this appellant would obtain an unconditional further trial on the merits if he were returned. In all those circumstances, for my part, I would dismiss the appeal."

Ahmetaj's attempt to re-open his statutory appeal and to obtain new evidence to show that any retrial would not meet the requirements of s20 of the 2003 Act failed in R (on the application of Ahmetaj) v Serious Organised Crime Agency & The Crown Prosecution Service [2012] EWHC 476 (Admin).

34. In Bohm Irwin J said: "The question then is whether, under the law of the requesting state, the defendant would be entitled to a retrial on appeal or a review amounting to a retrial, and for the present purpose I emphasise the word "entitled"… If the answer…is "no" or "perhaps" or "in certain circumstances", then that is not enough, the statutory test is not met". In that case the provisions of article 522 of the Romanian penal code supplemented by further information made clear that the decision to grant a retrial rests on the discretion of the Romanian Court.
35. In Rexha Laws LJ and Owen J considered a challenge to the compatibility of article 175(2) of the Italian Code with section 20. The court said:

"43. Would the appellant be granted a retrial on an application under Article 175(2)?

….the Ministry of Justice stated in terms that the appellant "has to...be entitled to a new trial". …Dr Terracina ….could not give an "absolute assurance" in that regard since the decision under Article 175 is not for the Office of the Prosecutor to make. But she concluded that it was "highly probable, on a legal basis, that a possible request by Mr Rexha for an out-of-time appeal could be acceded to."

44. ….a guarantee that the appellant would be accorded a re-trial [was] a matter for the Italian courts. But she submitted that although the Italian Court of Appeal could in theory refuse the appellant's application under Article 175, the likelihood of its doing so is so remote that it can be discounted, as it is clear from the evidence from the judicial authority that there is no basis upon which it could resist an application for a retrial.

45. The reality of the situation was spelt out by DJ Evans in rejecting the argument advanced by Professor Iorio:

"This line of argument (that the appellant has lost his right to seek a retrial) will never be pursued by the RP (appellant) if he is extradited. He knows the JA (judicial authority) raises no objection to his entitlement to a retrial, and when in Italy, it is inconceivable that the RP will want to argue that he is no so entitled."

46. In my judgment DJ Evans was fully entitled to find that the respondent had established, to the requisite standard of proof, that the appellant will be granted a retrial if he exercises his right to an out of time appeal under Article 175(2).

47. The remaining question is whether the requirements of section 21 are satisfied, namely that the appellant's extradition will be compatible with his convention rights. Italy is a co-signatory to the ECHR. Article 175 was amended following the decision in Sejdovic v Italy, Application No. 5681/00, 1 March 2006 (Grand Chamber) which addressed the right of persons convicted in absentia to obtain a fresh determination of the merits of the charge against them by a court which had heard them in accordance with the requirements of Article 6 of the Convention. In my judgment there is no basis upon which the District Judge could properly have concluded that the appellant will not have the protection of his Convention rights if extradited."

Submissions developed.

36. The Appellant submits that S.20 sets an absolute standard from which no departure is permissible. Absent an express and unequivocal guarantee, both in respect of the right to a retrial and of the specific Convention rights applying in that re-trial, the statutory test cannot be met. S.20(8) provides an additional specific protection over and above the general protection otherwise afforded. Specific, particularised and unambiguous evidence must clearly and unequivocally confirm that the returnee will be granted the rights set out in the statute, should he exercise them. Since Parliament inserted these rights, for the test in s.20 to be met there must be an express assurance relating to them. Assumptions based on the requesting authority being a Convention signatory are not sufficient with section 20.
37. The Appellant seeks to contrast what he describes as on the one hand a strict approach to section 20, pointing to Bohm and to Da An Chen, with what he describes as an attempt to resolve lack of clarity.
38. He submits there has been either general reliance on a requesting state being a Contracting Party to the Convention combined with the provisions of Article 6 ECHR or on the domestic tribunal putting itself in the place of the court of the requesting state and attempting to assess the outcome of an application for a retrial (Ahmetaj;Rexha). He further submits that in the most recent jurisprudence the conflict for which he argues has not been addressed. Mr Watkins told us that in Rexha not only was the precise meaning of "entitlement" not considered but also no reference made to the strict approach of Bohm. We were fortunate that Mr Sternberg could reassure us that, on the contrary, the court in Rexha was well aware of the single judge Adminstrative Court decision of Bohm.
39. The Appellant argues that insofar as cases such as Ahmetaj, Gradica and most recently Rexha approach the concept of "entitled" in a more flexible way they have stretched normal meaning beyond its natural limit.
40. The evidence is said nowhere to contain an unequivocal assertion that the appellant, if extradited, would enjoy an unfettered entitlement to a re-trial, still less that any re-trial would guarantee the rights set out in Article 6(3)(c) and (d) of the Convention. Rather, the evidence demonstrates that entitlement to a retrial is anything but automatic. The evidence is said to be that there exists discretion for a judge determining an application under Article 175 and that consequently the answer to the question posed by section 20(5) is not unequivocally "yes".

Conclusions

41. I accept that since it post-dates the deadline for lodging an appeal an application under article 175 is an out-of-time subsequent appeal lodged during the appeal phase. However as illustrated in Gradica and explained by the Court of Cassation in judgment 1805/2010, a person unaware of proceedings, tried in absentia, may obtain restoration of the term to lodge an appeal if he can show that he was not present at the original proceedings. The appellant has no further burden to discharge. Such restoration is excluded only if the judge can on the evidence demonstrate the defendant knew of the proceedings and voluntarily renounced his right to appear or to file an appeal. The judgment also reminds us that Article 175 was amended to comply with dicta of the ECHR and to add safeguards.
42. An insuperable difficulty confronting the appellant is that UK jurisprudence has consistently found article 175 compatible with section 20. In addition to Gradica, in Ahmetaj the court said "under Article 175(2) as amended, a defendant who is absent from his first trial will be granted what may be called a fresh merits hearing without strings or conditions unless he deliberately evaded the trial on the first occasion.". Notwithstanding some confusion in the documents supplied by the Judicial authority, the court accepted that as the appellant had never had any contact with the Italian Judicial authorities, and always been represented by a court-appointed defence lawyer, his right to a retrial was unconditional, notwithstanding the theoretical possibility of its refusal. In Rexha the prosecutor's office had been unable to guarantee a retrial. Once again the Divisional Court accepted that there was no basis on which the Italian Court or prosecutor's office could resist an application for a retrial and the appellant would have the protection of his Article 6 convention rights if extradited. That the law of a requesting territory requires a requested person to apply for retrial was not found incompatible with s.20 of the 2003 Act in Benko.
43. These decisions in my view show a difference between on the one hand an exercise of what one might term pure discretion when considering an application for a retrial (Bohm) and the application of the law to the facts in accordance with a criminal code on the other. The latter is the approach of the Italian Court at least since Daniele v The Governor of HM Prison Wandsworth, The Government of Italy & The Secretary of State for the Home Department [2006] EWHC 3587 (Admin).
44. Applying my interpretation of the authorities to the facts in this case, I do not doubt that the Italian Court will comply with the provisions of its own Code and re-open the appellant's case in the appellate phase. He is entitled to a retrial if he can show that he was absent from the original proceedings: Gradica. No more is required from the appellant. His entitlement to a retrial is excluded only if the court is satisfied, on the evidence, that he knew of proceedings and voluntarily renounced his right to appear or to file and appeal. Where there is no evidence of his knowledge there is no basis on which his appeal could be excluded. The Italian courts can be expected to apply their own law and decisions of the Court of Cassation. I am fortified in my conclusion to note that the second and third sets of further information contain assurances that the Court of Appeal of Trento in similar cases granted an out-of-time appeal under Article 175 leading, in substance, to a new trial. I remind myself too of the judgment in Case 1805/2010 which supports those assurances.
45. The existence of procedural steps does not remove the entitlement to a retrial. Rather, the Italian authorities must be premitted to regulate their own proceedings by imposition of their own rules. Section 20 may create entitlements, but procedural rules set parameters within which such rights are exercisable. In my view the evidence demonstrates that s.20(5) is satisfied by the provisions recited in the material provided to this court and to the District Judge. I am not persuaded that Nastase would be excluded from those protections. I conclude that the District Judge was correct to answer the question set out in section 20(5) of the 2003 Act in the affirmative.
46. Nor, for what it is worth, in my view does the EAW misstate the position in Italian law. Nastase relies upon the October 11 2011 statement by the Italian prosecutor as to the operation of article 175. However, the wording of Article 175(2) was included with the September 22 2011 further information from the Judicial Authority and finds a substantive echo in the subsequent further information provided by the Ministry of Justice. In my judgment there is nothing in this aspect of the appeal.

Section 20(8)

47. The appellant argues that he would not have the benefit of the rights in section 20(8) of the 2003 Act on return. Case 1805 confirms that a reopening of the evidence under article 603 of the Italian Code is not limitless and depends on the Judge's assessment. The further information confirms there is no distinction between an unaware person tried in absentia and a fugitive and that a defendant in such a position always has the right to obtain renewal of the trial under article 603(4) of the Code. The conclusion of the Court of Cassation is that a person who satisfies article 175(2) also meets the requirements of article 603(4) and is entitled to a re-opening of the evidence. The judgment of the Court of Appeal of Genoa in Ahmetaj provides a practical illustration. The steps taken by the Italian court to grant an appeal amounting to a retrial in which he was represented and would be able to challenge the evidence called are clear.
48. A tribunal re-opening proceedings and renewing the evidence should be permitted to regulate evidence as it sees fit. Such a course would plainly be Article 6 compliant. Any concern in that regard may be raised in an appeal to the Court of Cassation as case 1805 illustrates. Consequently, I can identify no basis on which the District Judge should have found that the appellant will be denied the rights set out in section 20(8) of the 2003 Act. Neither Article 6 nor mutual trust need be prayed in aid to establish this: that the appellant meets the evidential pre-conditions to both obtaining a re-opening of the case in the appellate phase and the calling of new evidence cannot be disputed given the content of the further information of October 24 2010.
49. It follows that in my view the District Judge reached conclusions open to him on the evidence, and not undermined by the appellant's submissions. He correctly stated the burden and standard of proof. To state, as he did, that a reasonable doubt if raised must result in the appellant's discharge is not incorrect, nor does it imply a presumption in favour of the judicial authority.
50. After a detailed review of the jurisprudence the DJ correctly observed that each challenge to Italy's provision of retrial rights has failed. There was no evidence that Nastase had actual knowledge of the proceedings and voluntarily renounced the right to appear or file an appeal in time, which would exclude him from an application to appeal out of time. The Italian court would permit evidence to be heard at the appeal under article 603 of the Italian code and in accordance with article 6 of the ECHR.
51. That he was satisfied that the Italian Court would comply with article 6 of the Convention and article 603 of the Italian code was not to conflate the requirements of section 20 of the 2003 Act with article 6, except insofar as section 20(8) mirrors the requirements of article 6(3)(c) and (d). The District Judge did not use mutual trust as the sole basis on which to answer the questions in section 20 of the 2003 Act. Rather, he made findings based on the evidence.
52. Since in my view there is no basis on which the appellant's application to renew the trial could be opposed or refused by the Italian Court no question of the exercise of discretion or abrogation of a right to retrial arises. The position is not materially different from that considered in Gradica and in Ahmetaj.
53. I would dismiss the appeal.