Awat Wahab Hamasalih v Italian Judicial Authority
[2024] EWHC 595 (Admin)
Igor Gisca v Prosecutor General of Trieste, Italy
10 February 2023
[2023] EWHC 241 (Admin)
High Court
A man was ordered to be sent back to Italy. He's appealing because the judge said he ran away, but he says he was told to leave. The court agreed to hear his appeal, but will wait for other important court cases to finish first.
Key Facts
- •Applicant's extradition to Italy ordered by District Judge Clarke.
- •Two European Arrest Warrants (EAWs): EAW1 for theft (2 years 6 months sentence, 2 years remaining), EAW2 for burglary (1 year 4 months sentence).
- •Applicant conceded no bar to extradition under section 20 of the Extradition Act 2003, but later sought to rely on it.
- •Applicant argued extradition would be oppressive (section 14) and infringe Article 8 ECHR (section 21).
- •District Judge found Applicant a fugitive, rejecting his claim he left Italy due to deportation.
- •District Judge rejected Applicant's claim he didn't understand a form signed at Verona airport.
- •Applicant appeals, challenging the 'fugitive' finding and the application of sections 14 and 21.
- •Applicant seeks to adduce further evidence (translations of Italian documents) and add a section 20 ground of appeal.
Legal Principles
Test for fugitive status: whether the requested person deliberately and knowingly placed himself beyond the reach of a legal process (criminal standard of proof).
De Zorzi v Attorney General Appeal Court of Paris [2019] EWHC 2062 (Admin); Kociukow v Poland [2006] EWHC 56 (Admin)
Extradition Act 2003, sections 14 (oppressive extradition), 20 (conviction in absence/deliberate absence/retrial entitlement), 21 (Article 8 ECHR).
Extradition Act 2003
Article 8 ECHR balancing exercise considering factors for and against extradition.
Norris v Government of the United States of America (No 2) [2010] UKSC 9; HH v Italy (2012) UKSC 25; Polish Judicial Authorities v Celinski & Others (2015) EWHC 1274
Section 20(5) not satisfied by mere availability of a right to request a retrial if there's no assurance it will result in a retrial.
Merticariu v Romania [2022] EWHC 1507 (Admin)
Section 27 of the 2003 Act concerning conditions for allowing an appeal.
Extradition Act 2003, Section 27
Interests of justice in allowing amendment to appeal, even with delay, if issues arise from material before the district judge (Hoholm v Norway [2009] EWHC 1513 (Admin)).
Hoholm v Norway [2009] EWHC 1513 (Admin)
Outcomes
Permission to appeal granted on grounds based on sections 14 and 21.
Arguable non-sequitur in district judge's finding of fugitivity; arguable that too much weight placed on the Verona airport form.
Permission to amend appeal to revive section 20 ground granted.
New section 20 arguments don't depend on new evidence; in interests of justice to allow amendment (Hoholm approach); genuine issues raised.
Appeal stayed pending Supreme Court decisions in Merticariu and Bertino.
Appeal should be considered as a whole, not piecemeal; section 20 issues depend on Supreme Court rulings.
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