CROWN APPEAL UNDER SECTION 28 OF THE EXTRADITION ACT 2003 BY THE LORD ADVOCATE AGAINST SHKELQIM DAJA

Factual and Procedural Background

The appeal concerns an extradition case under section 28 of the Extradition Act 2003 ("the 2003 Act"). The Appellant, representing the Office of the Prosecutor General of the Italian Republic, Court of Trieste, challenges a sheriff's decision made in Edinburgh on 3 March 2021 to discharge the Respondent under section 20(7) of the 2003 Act.

The Respondent, an Albanian national, was arrested on 18 June 2019 pursuant to a European Arrest Warrant ("EAW") issued by Italian judicial authorities on 8 May 2017. The EAW sought extradition to serve a 15-year sentence imposed by the Court of Appeal at Trieste following a conviction for offences equivalent under Scots law to two charges of attempted murder and one of assault to severe injury and danger of life.

The underlying Italian criminal proceedings arose from a stabbing incident in Pordenone, Italy, in December 2006, where the Respondent was tried and convicted in absentia, having left Italy shortly after the incident and never returned. At the trial, a court-appointed lawyer appeared for the Respondent without his presence. Subsequently, another lawyer acted on the Respondent’s behalf in appeals based on a power of attorney allegedly signed by the Respondent, which was later found to be forged.

At the extradition hearing, evidence was led regarding the circumstances of the in absentia conviction, including testimony from the Respondent, his brother, the Italian lawyer, and a handwriting expert. The sheriff found the Respondent had not deliberately absented himself from trial and that the power of attorney was forged. The sheriff also allowed expert evidence on Italian law related to retrial rights and made findings that the Respondent would not have the procedural rights under Italian law to a retrial compliant with section 20(8) of the 2003 Act, leading to the order for the Respondent's discharge.

Legal Issues Presented

1. Whether the sheriff erred in concluding that the Respondent would not be entitled to a retrial or review amounting to a retrial compliant with section 20(8) of the 2003 Act upon return to Italy.
2. Whether the sheriff was correct to rely on expert evidence about Italian law to decide the retrial question, despite the EAW's terms and established jurisprudence.
3. Whether the sheriff properly applied the interpretative framework of section 20 of the 2003 Act in conformity with Article 4a of the 2002 Framework Decision and relevant case law.
4. Whether the sheriff was correct to order discharge under section 20(7) given the findings and evidence.

Arguments of the Parties

Appellant's Arguments

• The ordinary rule is that the requested state should accept the EAW's terms at face value without investigating the merits, except in cases of ambiguity or abuse of process.
• Although the sheriff properly heard evidence about the Respondent's status as a fugitive, the expert evidence on the quality of the retrial was irrelevant and should not have been considered.
• The sheriff erred in not interpreting section 20(8)(b) to allow Italian procedural law to take effect, consistent with established case law such as Nastase and Dumitrache.
• The sheriff incorrectly assumed a possibility of a second extradition attempt based on corrected facts, but the Italian proceedings were final, precluding such an attempt.

Respondent's Arguments

• The Appellant did not object to the evidence led on whether the Respondent had instructed a lawyer or on the nature of any retrial rights, thereby waiving such objections.
• The sheriff was entitled and correct to consider the expert evidence to address the section 20(5) question because the EAW was defective and silent on retrial rights due to proceeding on incorrect factual assumptions.
• The sheriff correctly found that the Respondent was convicted in absence without deliberate absence and properly applied section 20(5) and (8) to conclude no entitlement to a compliant retrial existed.
• No error was identified in the sheriff's decision-making process and the appeal should be refused.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the intended purpose of the 2003 Act to facilitate swift extradition while protecting fundamental rights, with mutual recognition of judicial decisions as the cornerstone. Execution of the EAW is the rule, and refusal is the exception requiring strict criteria.

Section 20 of the 2003 Act governs cases where the person is unlawfully at large after conviction, requiring the court to determine whether the person was convicted in their presence, whether they deliberately absented themselves, and whether they would be entitled to a retrial or review amounting to a retrial. The court must not find entitlement to retrial unless certain procedural rights are guaranteed, mirroring Article 6(3)(d) ECHR.

The court reviewed the sheriff's findings that the Respondent was convicted in absence without deliberate absence, but that the EAW proceeded on incorrect factual assumptions and was silent on retrial rights. The sheriff relied on expert evidence about Italian law and concluded the Respondent would not have the requisite procedural rights under section 20(8), ordering discharge accordingly.

The court found that the sheriff erred by failing to give proper effect to the presumption that Italian law, as a category 1 territory incorporated into the ECHR framework, complied with Article 6 and section 20(8). The sheriff's concerns about the discretionary nature of Italian appellate procedure and the risk that Italian authorities might misunderstand the Scottish court's findings were misplaced and unsupported.

Precedents such as Nastase, Tous, and Dumitrache establish that Italian procedural law, including Article 175 of the Italian Code of Criminal Procedure, is compatible with section 20(8) and Article 6 ECHR. The sheriff's conclusion that the Respondent would not have the necessary rights was inconsistent with this jurisprudence and unsupported by evidence.

The court also held that the sheriff failed to properly separate the evidential burden on the requesting state from the procedural burdens under Italian law, and improperly considered potential misunderstandings by Italian authorities rather than focusing on the legal framework as established.

Finally, the court noted that the sheriff relied on a German constitutional decision without sufficient analysis and that this decision appeared in conflict with established UK jurisprudence, which the court declined to follow.

Holding and Implications

The court ALLOWED THE APPEAL. It granted leave to the Appellant to appeal the sheriff’s decision and concluded that the sheriff should have answered the section 20(5) question affirmatively, meaning the Respondent would be entitled to a retrial or review compliant with section 20(8).

Consequently, the order discharging the Respondent was quashed, and the case was remitted to the sheriff with a direction to order the Respondent's extradition under section 21(2) of the 2003 Act. The court continued bail on existing conditions pending extradition.

No new legal precedent was established; rather, the decision reaffirmed existing principles regarding the interpretation of section 20 and the treatment of EAWs issued by category 1 territories with procedural safeguards compliant with the ECHR.