QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
MR JUSTICE MITTING
| MOHAMMED ELASHMAWY
|- and -
|Court of Brescia, Italy
Court of Taranto, Italy
First Interested Party
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 ©
Lord Justice Aikens :
Background to the appeal: the appellant Mohammed Elashmawy.
Background to the first interested party: Fabio Riva.
The history of the criminal proceedings in Italy against the appellant in more detail.
"…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".
Ground 1: trial "in absentia". The arguments, analysis and conclusion.
"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…"
"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."
"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."
"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".
"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".
"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.
"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.
Ground 2: Articles 5 and 6. The argument, analysis and conclusion.
"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 – 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."
"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.
Ground 3: Article 3 and prison conditions in Italy.
Article 3 and prison conditions: the legal framework
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Prison conditions in Italy: the ECtHR's "pilot judgment" in Torregianni.
"[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…"
"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.
"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".
". 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".
"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".
"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".
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.
"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".
Should this court admit the further evidence sought to be admitted before it? How should this court apply the "Fenyvesi principles"?
The argument of the parties on the prison conditions/Article 3 issue.
Assessment of the materials and conclusions on the Article 3/prison conditions ground.
"…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".
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 any prison that is not compliant with Article 3 of the ECHR.