English and Welsh Courts - Miscellaneous

IN THE WESTMINSTER MAGISTRATES' COURT

		181 Marylebone Road, London, NW1 5BR
		18 August 2014

1. The judicial authority ("JA") issued an European Arrest Warrant ("EAW") for the surrender of the defendant Mohamed Elashmawy to Italy to serve a sentence of six and a half years for rape of a girl under the age of 16. Mr Elashmawy is an Egyptian national who owned businesses and lived in Italy at the relevant time. The warrant was issued on 24^th October 2013 and certified by the National Crime Agency the following day. The defendant was provisionally arrested on 24^th October 2013 at Stansted Airport on his way into the United Kingdom from Sweden. He has remained in custody since his arrest, having made to date six bail applications including one to the High Court.
2. The basis of the conviction for which the defendant was arrested was that on 23^rd July 2005 the defendant went to a flat he had provided for the complainant, let himself in, and then sexually assaulted her before raping her vaginally and anally. She had drunk some water which had made her feel drowsy. She made a complaint within two days and was seen by a doctor, on examination a lesion and bruises were noted on intimate areas of her body. She had not had sexual intercourse before that night. The doctor's evidence during the proceedings was that the injuries supported the complainant's account. The particular injuries made it unlikely to have been consensual intercourse.
3. On 24^th October 2013 Mr Elashmawy claimed asylum although the court was told on 10^th January 2014 that he had since withdrawn his claim.
4. The initial hearing took place on 26^th October 2013 when he did not consent to extradition and the proceedings were opened.
5. At the full hearing which started on 24^th January 2014 the JA was represented by Miss Hinton and the defendant was represented by Mr Henley and Mr Cooper. The hearing continued on 23^rd May, 26^th June and finished on 17^th July 2014. On 26^th June the evidence of the defendant had to be interrupted due to a mediocre interpreter. He finished giving his evidence on 17^th July 2014. Final defence submissions were sent to the court on Friday 1^st August. The response was received from the JA on Monday 4th August 2014. This judgment was supposed to be given on 8^th August 2014. At 4.30pm it was discovered no Arabic interpreter was at court and the matter had to be adjourned until 18^th August 2014 when judgment was given.

Issues

6. Article 3 - Italian prison conditions. The defence contends the prison conditions breach Article 3 and that I should not rely on the assurance given by the JA. The JA accepts the prison conditions still breach Article 3 but suggests the court can rely on the assurance given by Italy. (For decision see paragraphs 34 to 56 below).
7. Conviction in absence and no right to re-trial (section 20 of the Extradition Act 2003). The defence argues Mr Elashmawy was not present nor was he deliberately absent at the first hearing in 2008. In light of the absence of a right to re-trial he should be discharged. The JA contends that he was present or deliberately absent during the overall process which should be considered, not just the one hearing in 2008. Alternatively he was present at the hearing when he was convicted which led to issuing of the EAW. (For decision see paragraphs 57 to 79 below)
8. Article 6 fair trial. The defence suggests it was an unfair trial in particular because the complainant and the doctor who examined her never had their evidence tested in cross examination. There was a suggestion from the defendant that he was unfairly treated by the courts because he was not afforded an interpreter. The JA contends that the overall trial was fair. (For decision see paragraphs 80 to 85 below).

Chronology taken from the evidence read and heard

9. 23^rd July 2005 According to the complainant, the incident takes place. This is denied by the defendant who says he was elsewhere with friends at the relevant time.
10. On 25^th July 2005 the complainant makes her allegation and is examined by a specialist doctor.
11. On 20^th April 2006 a notice of the conclusion of the preliminary investigations was drawn up.
12. On 11^th June 2006 the above notice was handed to the defendant at a police station. The defendant signed the notice. He formally acquired the status of defendant (see tab 2 of JA bundle).
13. 14^th February 2008 was the date of the first hearing at the Court in Brescia. Up to that point Mr Elashwamy had been represented by his company lawyer Mr Canali. The latter did not attend the first hearing and sent a relatively inexperienced junior lawyer in his stead. He mistakenly thought that no witnesses were to be called. In fact the complainant gave her evidence, as did the doctor who examined her injuries and the investigator. It is not clear whether the witnesses were asked any questions at all. What is clear is that defence counsel had very few details about the case when she attended the hearing. Mr Canali also missed the seven day deadline for defence witnesses. Mr Canali told his disciplinary body that he had sent three letters over a number of months asking the defendant to provide details of the alibi witnesses, he received no reply. In the event the details of the witnesses were provided to the lawyer by Mr Elashmawy the day before they had to be submitted at least seven days before the hearing. The lawyer then failed to make the deadline. The defendant was not present at the first hearing. He had not been told to attend. At that hearing the defendant was convicted and sentenced to seven years for rape.
14. 14^th February 2008 the defendant becomes aware of the conviction and sentence.
15. In June 2008 the defendant formally instructed the lawyer Mr Pollini although the latter had been present at an earlier meeting between the defendant and Mr Canali before the February hearing when the issue of defence witnesses had been discussed.
16. 9^th July 2008 Mr Pollini appealed to the Court of Appeal in Brescia asking the court to order the repetition [of the hearing] "or rather, to supplement the preliminary proceedings with respect to the hearing of the six witnesses requested by the defence at first instance and today's appellant". (See second document in tab 7, unpaginated). The appeal petition explained the failings of Mr Canali, the defendant's lawyer and the inconsistencies in the complainant's account at the preliminary hearing.
17. 1^st October 2009 confirmation received from the Court of Appeal in Brescia that the appeal had been refused and that he had been sentenced to seven years' imprisonment. The JA says he was present at this hearing, the defendant and Mr Pollini say not.
18. 30^th October 2009 application to appeal is made by Mr Pollini to the Supreme Court in Rome appealing the decision of the Court of Appeal in Brescia. Mr Elashmawy's lawyer argued that the lower court had erred in refusing to hear the additional evidence which would give the defendant a cast iron alibi. He relied on the failings of Mr Canali, the defendant's company lawyer. He pointed out the inconsistencies in the account of the complainant.
19. Sometime in 2009-2010 the Italian Supreme Court overturns the Court of Appeal in Brescia decision.
20. 13^th May 2010 the Court of Appeal in Brescia ruled that the defence witnesses could provide evidence (this was ordered by the Supreme Court in Rome).
21. 28^th September 2010, 28^th October 2010 and 25^th January 2011 disciplinary proceedings are held against Mr Canali the original company lawyer (tab 6). He is reprimanded, not struck off.
22. 13^th December 2010 the defendant is told that the next hearing is 4^th February 2011 and that if he does not appear he will be judged in his absence (tab 8).
23. 4^th February 2011 The Court of Appeal in Brescia after hearing three of the defence witnesses ruled that the defendant was guilty of the offence and he would be imprisoned for six years and six months. The defendant was present at the hearing. He chose not to give evidence.
24. On 22^nd March 2011 the Court of Appeal in Brescia upheld his conviction (box (b) of the EAW)
25. On 28^th April 2011 this decision was then appealed to the Supreme Court. In his appeal petition at tab 8 (in Italian) Mr Boni the lawyer criticised the lack of logic in the reasoning of lower court and pointed out that its finding that the complaint had been made immediately was wrong, nor was the complainant a disinterested witness as she was suing for compensation. He also pointed out the weaknesses in the lower court's approach to the alibi witnesses. The Supreme Court refused the appeal and upheld the conviction and sentence.
26. 26^th November 2011 Court of Appeal of Brescia decision of 22^nd March 2011 becomes final (box (b) of the EAW).
27. 14^th March 2014 date of Avvocato Amoroso's application to the ECHR.

Bundles, evidence and submissions

28. The court received two bundles one from the defence and one from the JA, the latter included at tab 4 the assurance dated 13^th May 2014 from the Head of the Prison Department in the Ministry of Justice. There was also a statement from Sally Cullen of the Crown Prosecution Service who works as the UK Liaison Magistrate in Italy at tab 4 giving the capacity in prisons as at 13^th January 2014 where it was said to be 62,107 as against a regular capacity of 47,701 with a tolerable capacity of 72,498. Sally Cullen gave a new statement in August 2014 in relation to matters raised by the defendant for the first time when he was giving his evidence. Mr Elashmawy had said that he had not been able to understand some of the proceedings in Italy as he did not speak Italian and that he had not been afforded an interpreter. Ms Cullen makes it clear that if he had wanted an interpreter he would have been entitled to one. As a result of Ms Cullen's statement the defendant made a further statement dated 6^th August 2014. I have taken all the evidence I have read and heard into account.
29. On 8^th August 2014 at 4.45pm on the day judgment was due to be given, Mr Henley for the defendant informed the court that he had an expert witness who had made a statement in relation to the notice dated given to the defendant by the Italian police on 11^th June 2006 informing him of his rights. She was an expert in handwriting. I made it clear to Mr Henley that the adjournment that I was granting was to enable an Arabic interpreter to be present, the judgment was written, it was too late for any new evidence. The defence had received a copy of the notice given to the defendant in January 2014, they had had almost nine months to obtain expert evidence and I was not going to admit it at this stage in the proceedings. Undoubtedly any evidence would have to be challenged in court and it would re-open a stage of the case which was closed. I was later sent the report by e mail on 11^th August when I was sitting in another court. I have not taken the report into account in my decision.
30. The court received a number of very helpful skeleton arguments from the parties over the course of the hearings.
31. The court heard evidence from Mr Pollini who had been the defendant's appeals' criminal lawyer from Italy and Alessio Scandurra a Project Co-ordinator of 'Associazione Antigone' who is an expert on Italian prisons. On 23^rd May 2014 I heard from Mr Amoroso a criminal lawyer who is appealing Mr Elashmawy's case to the European Court of Human Rights. On 26^th June 2014 I heard from Mr Perduca the recently retired Senator who had visited a great number of Italian prisons. He had given evidence at the appeal of Badre. On the same date the defendant started his evidence which then had to be adjourned to 17^th July 2014. There was a problem with the interpreter. He completed his evidence and was cross examined on 17^th July when the matter was adjourned for written submissions and judgment. Mr Elashmawy's evidence was taken last, out of turn, as the experts had come from Italy to give their evidence on particular days. This meant that a couple of matters raised in evidence by the defendant for the first time could not be put to Mr Pollini.

Decision

32. I am satisfied that the specified offence of rape with a sentence to serve of six years six months is an extradition offence. The framework list in the EAW is ticked for rape. I go on to consider whether there are any bars to extradition.
33. The conviction in absence argument overlaps greatly with the Article 6 argument. I will deal with Article 3 first of all.

Article 3 – Section 21 of the Extradition Act 2003

34. The test for this court to apply is whether there are substantial grounds for believing that the defendant, if extradited, would face a real risk of being subjected to treatment contrary to Article 3 (Saadi v Italy (2009) 49 EHRR 30). The burden on the defence is less than on the balance of probabilities but the risk must be more than fanciful. As against that there is the strong rebuttable presumption that in the case of a member of the Council of Europe that the state will abide by its obligations. Krolik v Polish Judicial Authorities [2013] 1 WLR 2013 suggests that something "approaching an international consensus" is required to rebut the presumption.
35. In the January 2013 case of Torreggiani and others v Italy, in a pilot judgment the second section of the European Court of Human Rights held that there was a systemic problem in the Italian prison system resulting predominantly from severe overcrowding.
36. The Divisional Court in Hayle Abdi Badre v Court of Florence, Italy [2014] EHWC 614 (Admin) took the case of Torreggiani into account when they considered whether Mr Badre had discharged the burden on him and showed that there were substantial grounds for believing there was a real risk of an infringement of Article 3. A letter of November 2013 from the JA in that case explained that the Italian Minister of Justice acknowledged the necessity of removing prison conditions which may be defined as inhuman or degrading. The same letter reported that the President of Italy had delivered a message to the Parliament urging them to find an internal remedy to cure the overcrowded conditions.
37. In Badre's case the Divisional Court found that Torregiani rebutted the presumption that would normally be applied. Italy had failed to dispel the concerns about the real risk of a breach of Article 3.
38. In Badre's case there was an assurance from the Minister which the JA relied on in the Divisional Court and in Westminster Magistrates' Court. This assurance stated that if surrendered Mr Badre would be
39. "kept in conditions complying with the provisions of Article 3 of the European Convention for the protection of human rights…Following his surrender Abdi Badre shall not be necessarily incarcerated in the Detention Institution of Busto Arsizio or Piacenza in that he can be imprisoned in other correctional institutions".
40. The court in Badre considered the assurance in the light of paragraph 189 of the European Court of Human Rights' decision in Othman (Abu Qatada) v UK (2012) 55 EHRR 1. That court listed a number of matters a court may wish to look at when considering the weight to give to any assurance received from another country. The court is to assess firstly the quality of the assurances given and secondly whether they can be relied on. Paragraph 189 sets out a list of considerations. In Badre the court found the assurances too general and noted that it did not give even an assurance that Mr Badre would not be held in one of the two prisons criticised in Torregiani.
41. I heard evidence from an expert Alessio Scandurra who produced a report on prisons. 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 15^th August 2013. The deadline to adopt the remedies to the problems described in the pilot judgment of Torregiani was 27^th May 2014. Italy had 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.
46. As to the assurance, he explained that he knows the man who gave the assurance and he is at the end of his career. In another case he knew about, the assurance was given by the Minister of Justice.

Findings

47. I accepted the evidence of both these witnesses in relation to the condition of Italian prisons.

Conclusions

48. I find the Italian Government has been doing its best to improve the prison conditions in Italy since the Torregiani judgment and before but there is very little evidence of any positive change, the numbers in the prison system fluctuate and overcrowding is still a very real problem. Efforts are being made by the authorities, for example, by moving prisoners to less crowded prisons.
49. I find that there are substantial grounds for believing that Mr Elashmawy, if extradited, would face a real risk of being subjected to treatment contrary to Article 3. On the evidence I have heard the risk is more than fanciful.
50. I accept that there is a strong rebuttable presumption that in the case of Italy which is a member of the Council of Europe that it will abide by its obligations but it seems to me that with Torregiani and the Italian Government's acceptance that it needs a further year to comply with the conditions imposed in the pilot judgment, there is something approaching the international consensus required to rebut the presumption. The case of Badre in the Divisional Court is a recent decision and I see no reason to depart from it. There is certainly no evidence of sustainable change in the conditions of the prisons in Italy since the evidence relied on in that case.

Assurance

51. I turn to the assurance given at tab 4 of the JA's bundle. The head of the prison administration in the Ministry of Justice gives the assurance which reads as follows:

"I hereby assure the competent authorities of the United Kingdom that in the event that ELASHMAWY Mohamed is surrendered pursuant 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 24.10.13, he will commence and serve his sentence at the prisons of CC Torino or Biella, which are now not overcrowded, and will not serve his sentence at Busto Arsizio or Piacenza or any prison that is not compliant with Article 3 of the ECHR."

52. As suggested by Badre I turn to the factors listed in Othman which I should question when examining the assurances given by Italy. They are listed in paragraph 48 of Badre at tab 14 of the JA's bundle.
53. I am to have regard to (i) whether the terms of the assurances have been disclosed to the court; (ii) whether the assurances are specific or vague; (iii) who has given the assurances and whether that person can bind the receiving State; (iv) whether the prison authorities can be expected to abide by them;…; (vi) whether they have been given by a Contracting State; (vii) the length and strength of bilateral relations between the sending and receiving States; (viii) whether compliance with the assurance can be objectively verified through diplomatic or other monitoring mechanisms…
54. In this case I noted that the assurances are specific. They go beyond the ones given in the case of Badre. The defendant will be held at CC Torino or Biella prisons which are not overcrowded and he will not be held at Busto Arisizio or Piacenza which were criticised specifically in Torregiani. Overcrowding is perhaps the most serious issue with the prisons but there are other issues such as the lack of air conditioning and work for prisoners in some of the prisons. Mr Tamburino goes on to say that the defendant will not be held in any prison which is not compliant with Article 3 of the ECHR. The person giving the assurances is the head of the prison service in the Ministry of Justice. True it is not a Minister in the Italian Government but nothing I have heard leads me to believe that Mr Tamburino is not a respected head of Department who takes his duties seriously. Mr Perduca the retired Italian Senator said that he knows Mr Tamburino who is a former judge who worked in Venice and Turin. In another case the assurance was given by a Minister in the Government but that was in relation to a case of a former senator being extradited to Italy. It seems to me that Mr Tamburino can bind the prison authorities and this court can expect the prison authorities to be bound by the assurance given.
55. Finally I have to have regard to the fact that Italy is a Contracting State and I have no doubt will act in good faith. Compliance with the assurance can be monitored in a number of ways, by the defendant raising it with the authorities via his lawyers, via the Prison Ombudsman or within the prison itself. I noted that England and Wales has a magistrate (in fact a CPS lawyer) working within the Italian Ministry of Justice and I have no doubt that any breaches of this assurance will be brought to the attention of the relevant authorities in Italy and in this country. I have concluded that I can rely on this assurance and that if I extradite Mr Elashmawy he will be held in prison conditions which will not breach Article 3.

Conviction in absence and Article 6 – sections 20 and 21 of the Extradition Act 2003

56. The issue for this court is whether Mr Elashmawy's absence from the 2008 initial hearing is so damaging to a fair trial that even though there were a number of appeals when he was present thereafter or deliberately absent and represented and he was able to call his alibi witnesses the process was flagrantly unfair. Does his absence from the hearing in 2008 which led to a first conviction mean he should be discharged under section 20(7) in relation to the later conviction in 2011?
57. As was said by Collins J in Atkinson and another v Supreme Court of the Republic of Cyprus [2010] 1 WLR 570, the obvious first thing to acknowledge is that Italy does not have the same procedures as in this jurisdiction. It is particularly marked here where the defendant was convicted once before appealing and winning the right to a re-trial or review during which he was allowed to call his alibi evidence but not to question the prosecution witnesses heard at the first trial. This is despite a right under Article 6 to examine or have examined a witness in a case. As I understood the evidence witnesses for the prosecution in Italy only give their evidence on one occasion even if there is a re-hearing, review or appeal. The emphasis in civil law countries is on getting to the truth of the events by investigation and presenting the evidence to the court sometimes on paper. The Italian system is historically not an adversarial system with a strong emphasis on questioning the witnesses in court.

Section 20 of the Extradition Act 2003 reads as follows:

(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 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 re-trial or (on appeal) to a review amounting to a re-trial.

(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.

Findings- notice to defendant dated 11^th June 2006 and credibility of defendant

58. I consider the document signed by the defendant (JA bundle tab 2) outlining his rights is important evidence of what he was told by the police in June 2006 about the legal process. The document states that it was handed by the police to the defendant and he signed for it on 11^th June. In evidence before me the defendant accepted he had signed the document but said he had not read it. He also said that as there was no interpreter he did not understand it. In the most recent statement from the defendant dated 6^th August 2014, he contradicts his evidence at paragraph 8 and now says that the document produced by the Italian police has been examined by two experts who have concluded that the signature acknowledging his rights is forged. I would find it astonishing that the JA would forge such a document in these circumstances. The police would have no reason to do so either then or now. He has never said this document was a forgery before either in earlier proofs of evidence or in his evidence before me. I do not accept what he says in his most recent proof. It seems to me that this is fabricated to get around the fact that he had his rights explained to him and failed to exercise them.
59. I have concluded not just from this evidence that the defendant has a tendency to blame others for his own problems. For example, he said it was entirely Mr Canali's fault for serving the defence witness list on the court out of time. In evidence Mr Elashmawy said he gave the list of witnesses to Mr Canali straight after he was charged, two years before the first hearing in 2008. In fact the defendant had failed to give the list to the lawyer in time for him to meet comfortably the deadline, despite three written reminders in 2007. There was also a conference with Mr Canali at which Mr Pollini was present on or about 4^th February 2008 when the defendant was pressed for the list. I did not find the defendant's evidence truthful on the point.
60. The defendant now says in evidence for the first time that he only understood 10% to 20% of the evidence given in the Italian court when his witnesses gave evidence and that he should have had an interpreter. This was never mentioned in his proofs of evidence and it was never suggested to Mr Pollini that he had failed to notify the court that his client needed an interpreter. I noted that the defendant had lived and run businesses in Italy employing people in a call centre for seven years. I did not accept the evidence that he did not understand his written rights or what was happening in court in 2011 when he was present.
61. The defendant also said for the first time when giving evidence that he had not been informed about the 2009 appeal. This was new evidence given after Mr Pollini had given his evidence. The JA says he was present at the hearing. Mr Pollini initially confirmed that but later sent a note to this court via counsel that he had been mistaken. I accept the evidence that the defendant was not present at hearing. Mr Pollini makes clear that he had been instructed to appeal and I do not accept, however, that a lawyer like Mr Pollini would not have told Mr Elashmawy about the appeal date. I did not accept the evidence of Mr Elasmawy who I found was yet again trying to lay the blame on others.
62. Mr Pollini gave evidence that Mr Elashmawy did not know about the final Supreme Court judgment because the latter had asked him not to contact him at home as his family did not know about the rape charge. The defendant said in evidence that he had told his wife about the allegation straight after he found out about it in July 2005. He gave the reason for not asking Mr Pollini about the final decision of the Supreme Court was that his mobile telephone was not working and the Egyptian revolution made things difficult. I do not accept that evidence. Mr Elashmawy knew he had been sentenced to six and a half years, he knew he had one last appeal and he had all the contact details of Mr Pollini if he wanted to get hold of him. I have concluded he had made a conscious decision not to contact Mr Pollini. He had been living in Italy for seven years and had businesses there. He did not return as he knew what he was facing. He was avoiding the prison sentence. He was a fugitive.
63. It is in the light of the conclusions I have drawn about the defendant's credibility, that I find that the defendant had had read his rights and understood the Italian, confirmed with his signature when the document was put into his hands by the police on 11^th June 2006. The document was not in a technical language that someone living and doing business in Italy for seven years could not understand.
64. The defendant was told on 11^th June 2006 that he was being prosecuted for rape, he had to appoint a defence lawyer or one would be appointed for him. He was told he had to elect the address to which notifications could be sent. If his address changed he had to tell the authorities and if he didn't do that any communication would be sent to his original address or failing that his lawyer. He was told the documents regarding the investigation were with the Public Prosecutor in his Brescia office. He and his lawyer both had the right to view and copy the evidence and he had the right to have an interpreter.
65. One of the rights Mr Elashamwy signed for which is not a right to be found in our jurisdiction is that he could ask the Public Prosecutor within 20 days to carry out investigations on his behalf. He could ask to be subjected to questioning but had a right not to answer questions. He had the right to render declarations to the Public Prosecutor. His defence was alibi. He knew at that stage he was a defendant. He had the opportunity at that early stage to provide the names of his alibi witnesses to the Public Prosecutor and make them available for questioning. He knew he could have done that and he chose not to, in the same way he chose not to give their names to his own lawyer until it was nearly too late.

Hearing in 2008 leading to first conviction

66. The defendant was first convicted of rape in February 2008. I find that he was notified about the first hearing but did not appear having been told by his lawyer that he need not attend. He had not been told his witnesses should be present or that he could give evidence on that day. It was his 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.
67. On that occasion although the defendant was represented, it is my understanding that the inexperienced and ill-prepared representative did not cross examine the witnesses with the defendant's account. Mr Elashamwy's defence to rape was that he was not present with the complainant on the relevant night and that she had made up her allegation to hide the fact that she had stolen from his business. In a British court it would have been suggested to the complainant that someone else was responsible for the injuries seen by the doctor. It must be said that any cross examination would have been short as the defence was not one that she had consented to sexual intercourse. I accept what has been said that the defence counsel who had seen the evidence did not have a copy of it in her possession at the hearing. I find that the court examined the complainant's evidence in detail and came to conclusions that were open to the court on the evidence they had heard. I bear in mind that the young girl's evidence was corroborated to by a specialist sexual offences doctor and to a limited extent by her mother.
68. Mr Pollini who drafted the appeal against the 2008 conviction asked for the repetition [of the hearing] "or rather, to supplement the preliminary proceedings with respect to the hearing of the six witnesses requested by the defence at first instance and today's appellant". At the time the lawyer's predominate concern was about the failure to call the alibi witnesses rather than on questioning the complainant and the doctor and the other witnesses.
69. Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] 1 WLR 1724 speaks about the Italian system having a continuing process of trial. The first hearing was part of a process which continued with an unsuccessful appeal to the Court of Appeal in Brescia, followed by a successful appeal to the Supreme Court and then the hearing of the defence case on 4^th February 2011 by the Court of Appeal in Brescia. Whether it was phrased as such, the Supreme Court set aside the conviction and gave the defendant the opportunity to call witnesses in his defence. At that point at the hearing in February 2011 Mr Elashmawy could either have been convicted or acquitted.
70. At the re-trial or review in February 2011 the defendant was able to call his alibi witnesses who were not believed by the court. The court would have had a transcript of the complainant and the doctor's evidence.
71. The defendant was present and represented at the hearing in February 2011. The hearing was a number of years after the rape but the court would have taken that into account the effect of the delay on the memories of the alibi witnesses.
72. The lawyers although unable to cross examine the complainant were able to draw the inconsistencies in the complainant's account to the attention of the court. It was that hearing that led to the defendant's conviction when the appeal from that decision failed. I find that was the final determination or decision of the court which led to the issuing of the EAW.
73. I accepted paragraph 5 a. to h of the submissions of the defence in their document dated 1^st August 2014. They reflected the evidence given by Mr Pollini. As to e. I find that although the advocate did not have copies of the trial documents she had seen them beforehand. As to f. My understanding is that only one expert was called, that of the specialist rape doctor. As to g. Mr Canali had only been given the list of defence witnesses a few days earlier, the defendant is to blame for that and also for his failure to ask the Public Prosecutor to interview his witnesses. I accept the complainant and the other prosecutors were not able to be questioned by the defence at any stage.
74. I did not accept the evidence from Mr Pollini that the defendant was not able to give evidence in his own defence. The JA makes clear in paragraph 4) of the further information in the JA bundle tab 2, that "the notion of evidence by the defendant is not contemplated. He may ask to be examined by the parties, or render spontaneous declarations at any moment. The fact that this did not take place even in the last appeal trial …can be ascribed only and exclusively to the will of the defendant".
75. I noted that in his statement of 6^th August the defendant said at paragraph 4 that he formed the view at the February 2011 hearing that the judge did not want to hear his evidence because he had not been provided with an interpreter. I do not accept that evidence and find that he chose not to give evidence and as I have made clear I find that Mr Pollini would have organised an interpreter had there been any suggestion that the defendant did not understand the proceedings. I do not know whether in the Italian jurisdiction his failure to give evidence may have been the subject of adverse inferences.

Conclusion

76. For section 20 purposes it is the conviction or decision of the court of February 2011 (which is affirmed later in the year after the appeal to the Supreme Court is refused) which I find is the relevant decision.
77. I find that the defendant although absent during one admittedly important part of the lengthy legal process, was present when convicted on 4^th February 2011 when he was represented and able to call witnesses and give evidence on his own behalf (section 20(1)). He had been allowed to re-open the conviction at the re-trial. I must proceed by way of section 21. I have given my decision in relation to Article 3, above.

Article 6

78. There is an overlap between the section 20 considerations and Article 6. The test I must apply is whether the defendant can show there is a real risk that he will suffer a flagrant denial of justice in Italy. Othman v United Kingdom [2012] ECHR 56 suggests that the breach of the Article 6 principles has to amount to the nullification of the very essence of the right. It is said that this will occur in very exceptional circumstances. I have reminded myself of paragraph 35 of Lord Brown's judgment in Gomes v Trinidad and Tobago [2009] 1 WLR 1038 that Council of Europe countries "should readily be assumed capable of protecting an accused against an unjust trial…"
79. Italy's case is that the defendant has had a number of appeals in which the courts in Italy have considered his complaints about the unfairness of the trial. The overall process was fair despite the failure of the defence to cross examine the complainant and the doctor. There is no basis for concluding that there is a real risk of a flagrant denial of justice were Mr Elashmawy to be returned to Italy. The JA suggests that the defendant has failed to discharge the burden which lies upon him.
80. The defendant's case is that the failure to cross examine the complainant and the prosecution witnesses or even to be present whilst the complainant gave her evidence is a flagrant denial of justice and contrary to Article 6(3). The defence is focussed on the first hearing at which the complainant gave her evidence whilst the JA is focussing on the overall process including the final determination of the court which it says is fair. A secondary point has arisen during the evidence of the defendant which is that he was not provided with an interpreter at the February 2011 hearing and therefore did not feel able to give evidence in his defence. I have dealt with that complaint above.

Findings

81. As can be seen above I find that Mr Elashmawy was not present at his first trial and was erroneously told by Mr Canali his company lawyer that it was a review or case management hearing. I accept that if the defendant had thought there was a risk he might be convicted he would have attended. Mr Canali had chased him repeatedly for the names of his witnesses and the defendant had sent their details to the lawyer on the last day possible. The lawyer then failed to get them to the court in time. It is fairly clear from the evidence that in Italy a witness' evidence is usually only heard once. The complainant, her mother, the sexual offences examining doctor and the investigator gave evidence at the first trial. They were not cross examined as would be expected within this jurisdiction.
82. In terms of an Article 6 breach, I am concerned that Mr Elashmawy was not able to hear the evidence of the complainant and the other witnesses and question them. He should have been able to hear the complainant's evidence and although cross examination would have been brief due to the nature of the defence he was not allowed to exercise this undoubted right. He should have been properly represented but he was not. It was not his fault that his representative let him down. I accept there was a delay of almost six years between the events and the alibi witnesses' evidence. I bear in mind too that the 2008 hearing was the first at the beginning of what became a long process.
83. On the other hand the defendant was able to appeal once to the Court of Appeal in Brescia before the Supreme Court allowed his appeal and ordered a review. The original conviction was set aside on appeal and the defendant's alibi witnesses were heard by the Court of Appeal in Brescia in February 2011. At that hearing the transcript of the prosecution witnesses was relied upon by the court. Mr Elashmawy had the choice whether to give evidence or not and the choice before that whether to make his witnesses available or make declarations at any stage to the Public Prosecutor after he was charged on 11^th June 2006.
84. The matters of which he makes complaint were raised with the Italian appeal courts at various levels including the national Supreme Court. The solution to his complaints offered by the latter was to set aside the conviction and allow the defendant to call his alibi witnesses. At the second hearing of the Court of Appeal in Brescia in February 2011 the defendant could have chosen to give evidence but did not.
85. I noted the evidence from Mr Amoroso that he is appealing the defendant's conviction to the European Court of Human Rights although that may be partly based on a misunderstanding in relation to what the defendant knew about his conviction.

Conclusion

86. In the light of the findings above I conclude that despite the failure of the judicial system to allow the defendant to contest the evidence given by the prosecution witnesses there was no flagrant denial of a fair trial in this case and to return Mr Elashmawy would not be a breach of his Article 6 rights. I accept the points made by the JA in this regard.

Order

87. In the light of my decisions I order his extradition under section 21(3) of the Extradition Act 2003. I have explained to him his right to appeal the decision.

Deputy Senior District Judge Emma Arbuthnot

18^th August 2014