High Court of Justiciary orders sheriff to approve extradition of Albanian man wanted by Italian authorities

The Lord Advocate brought the appeal on behalf of the Office of the Prosecutor General of the Italian Republic, Court of Trieste, after Shkelqim Daja was sentenced to 15 years’ imprisonment in an Italian prison in his absence.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Matthews. The appellant was represented by Dickson, solicitor advocate, and the respondent by Mackintosh QC.

Quality of retrial

The respondent had been tried and convicted in absentia of crimes analogous to attempted murder and assault following an incident in Pordenone, Italy. He had never been arrested in Italy or made any appearance before an Italian court having left the country two weeks after the incident. At trial, a court appointed lawyer had appeared on his behalf, with another lawyer representing him in appeal proceedings having agreed to act for him based on a power of attorney mandate purportedly signed by the respondent.

A European Arrest Warrant was issued by the Italian authorities in May 2017, on the basis that the respondent was a fugitive from justice. Following his arrest in Edinburgh, extradition proceedings were commenced in the sheriff court. Following evidence led concerning the circumstances in which the respondent came to be convicted, the sheriff determined that he had not deliberately absented himself from trial, and that the mandate instructing his appeal lawyer had been created fraudulently.

The sheriff concluded, based on evidence provided by a practising Italian defence attorney, Mr Canestrini, that, as the respondent would not be entitled to a full retrial in which he could question witnesses or have new witnesses examined, section 20(7) of the Extradition Act 2003 required him to order the respondent’s discharge.

It was submitted for the Crown on behalf of the Italian authorities that the evidence given by Mr Canestrini about the quality of any retrial available to the respondent was not relevant. The question of the nature of the retrial available was for the Italian authorities to determine, but it was to be assumed that the procedure available was compliant with Article 6 ECHR.

Judicial cooperation

The opinion of the court was delivered by Lord Turnbull, who began: “The 2003 Act was intended to create a quick and effective domestic framework in which to extradite a person to the country where they are accused or have been convicted of a serious crime, providing that this does not breach their fundamental human rights. Mutual recognition of judicial decisions was intended to become the cornerstone of judicial cooperation.”

Assessing the task of the sheriff in this case, he said: “The sheriff was invited to consider a claim, supported by a body of other evidence, which suggested that a fraud had been perpetrated on the Italian court. We accept that he was entitled to hear that evidence in support of the claim that the respondent did not know of the existence of the case and was not a fugitive from justice. The problem for the sheriff was that he did not limit the use of the evidence to this legitimate purpose.”

He continued: “At that stage it would have been open to the sheriff to adjourn the hearing and seek further information from the Italian authorities as to what procedure would be available in light of the information which had been provided to him and the conclusions which he had reached upon it. Alternatively, he could have proceeded upon the basis of the two letters which were relied upon by the Lord Advocate and arrived at a decision one way or the other. Instead, the sheriff decided to take account of the evidence led from Mr Canestrini.”

Examining the sheriff’s decision in detail, Lord Turnbull said: “The sheriff’s reasoning appears to have become infected with a concern about what he thinks the Italian authorities will make of his findings on the factual circumstances. He accepts and recognises the presence of appropriate procedural processes in the Italian system but fails to give effect to these because of a concern that the wrong procedure might be followed as a result a misunderstanding about the facts.”

He continued: “Why there would be any such risk, or put another way, why the Italian authorities would be any less able than the sheriff was accurately to assess the facts is impossible to understand.”

Lord Turnbull concluded: “In the absence of any detailed analysis by the parties, or by the sheriff, we are not persuaded that it was appropriate for [the sheriff] to decline to follow the guidance set out in the various appellate cases interpreting extradition law in the United Kingdom on the basis of a case concerning the application of German law.”

For these reasons, the appeal was allowed. The order discharging the respondent was quashed and the case remitted to the sheriff with a direction that he must order the respondent to be extradited.