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Surrender to Italy could proceed despite trial being heard in absentia where respondent had avoided service

By: James Cross BL

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High Court, in European Arrest Warrant proceedings, orders the surrender of respondent to Italy to serve sentence of imprisonment, on the grounds that the Court was satisfied that the EAW was issued by a competent issuing judicial authority, taking the EAW and the additional information provided as a whole, there is no significant error, ambiguity or lack of clarity so as might give rise to any prejudice on the part of the respondent such as might cause an injustice, the surrender was not prohibited even though the respondent was not present at the hearing where the respondent made an informed choice to avoid service and the Court was satisfied that the respondent’s defence rights were adequately protected and were not breached and the Court was not satisfied that there are substantial reasons for believing that, if surrendered, the respondent faces a real risk of a breach of his fundamental rights due to prison conditions in Italy.

European Arrest Warrant – Italian authorities seeking the surrender of the respondent - enforce a sentence of four years and eight months’ imprisonment, of which four years and fourteen days remains to be served - did not appear in person at the hearing leading to the decision – trial in absentia – points of objection - issuing judicial authority – argued it is not clear who issued the EAW and so it is not possible to say if same had been issued by an issuing judicial authority - additional information - satisfied that the EAW was issued by a competent issuing judicial authority – alleged lack of clarity - unacceptable level of uncertainty concerning the dates of the offence – alleged lack of clarity concerning the actual penalty which had been imposed - taking the EAW and the additional information provided as a whole, there is no significant error, ambiguity or lack of clarity so as might give rise to any prejudice on the part of the respondent such as might cause an injustice – trial in absentia - additional information indicates that the respondent was not found at the address she had declared and, therefore, service of documents was made upon her lawyer - abbreviated trial – Court finds the respondent to be unreliable and lacking in credibility - denials of mandating a lawyer are contradicted by the documentation – Court prefers and accepts the account provided by the issuing judicial authority - purposive interpretation is to be adopted in respect of s. 45 of the Act of 2003 - even where the Court finds such deliberate or wilful ignorance has been brought about by the requested person, it should not simply find a waiver of the right to be present, but should still consider whether the rights of defence were adequately protected or breached - informed choice made by the person to avoid service - satisfied that the respondent’s defence rights were adequately protected and were not breached – prison conditions – whether Italian prison conditions give rise to a real risk that, if surrendered, of a breach of the respondent’s right not to be subjected to inhuman or degrading treatment – Court not satisfied that there are substantial reasons for believing that, if surrendered, the respondent faces a real risk of a breach of his fundamental rights due to prison conditions in the issuing state –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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