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  • Alessia Matonti

Uk refuses EAW for infanticide: best interest of the child v flagrant denial of justice

Updated: Jun 9, 2022

With a judgment of 4 July 2019, the District Judge Tempia in the Westminster Magistrates’ Court discharged M from an Italian European arrest warrant on grounds of incompatibility with her right to respect for private and family life as protected by Article 8 of the European Convention on Human Right (ECHR).

The Italian Judicial Authority sought M’s extradition for giving execution to the final judgment imposed on 8 February 2018 by the Rome Court of Assize of Appeal, which sentenced the requested person (RP) to 5 years and 2 months imprisonment for the offences of “infanticide” and “concealment of a corpse”.

The offences were committed in May 2013 allegedly in complicity with a nurse, who prescribed M an abortion tablet by forging a doctor’s signature. The drug caused the premature birth of the child while the RP was 7 months pregnant. Following the induced labor, the fetus’s body was disposed of.

Based on expert psychological evidence, the Judge found that “it would be disproportionate to extradite M albeit she was convicted of serious offences in Italy and has a lengthy sentence to serve”. Indeed, M’s extradition would have a profound impact on her son, who is a vulnerable child being affected from Down’s Syndrome and learning disability. While M’s husband would be able to meet his son’s basic needs, he could not mitigate the extremely negative impact extradition would have on S. Moreover, the Judge found M was suffering from a mental disorder at the time of the offending and that separation from her child would take away her only protective factor, exposing her to a substantial risk of suicide.

Based on expert evidence on Italian law, the Judge established that, following the birth of her child, M was interviewed in hospital without the basic safeguards required by Italian law and Article 6 ECHR and that this evidence was not excluded from the trial case-file. The DJ also deemed proved that M was provided with inadequate legal representation during the criminal proceedings against her, given that her defence lawyer failed to lodge an appeal to the Court of Cassation even though instructed to do so and continued to represent her co-defendant when there was a clear conflict. Though, the Judge found that in the case at hand there was no flagrant denial of justice, because, given that the defence lawyer had breached his professional obligations, “M could report him for to the equivalent professional authority in Italy” and she had “the possibility of appealing to the European Court”.

Admittedly, it could reasonably be argued that the DJ’s choice not to discharge the RP on the ground of the flagrant denial of justice suffered during the criminal proceedings conducted against her in Italy may be justified in the light of the principle of mutual confidence and respect, which lies at the heart of the judicial cooperation in criminal matters, and of the principle of subsidiarity, to be read as a “division of competences” in the field of human rights protection.

Nevertheless, it is hard to imagine – as instance – how the RP could eventually have raised a complaint concerning the violation of her right to a fair trial before the European Court of Human Rights – and respect the six-month time limit imposed by Article 35 § 1 ECHR – when she was not even aware that her defence lawyer had failed to lodge the appeal before the Court of Cassation and, accordingly, that the sentence against her had become final.

We believe that the respect for the right of a fair trial would have required a more careful and fearless assessment of the remedies actually available to the RP to challenge her unfair conviction.


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