QUEEN'S BENCH DIVISION
B e f o r e :
MRS JUSTICE RAFFERTY
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Mr J Jones (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
"1. The government seeks the extradition of the defendant for the purposes of executing a sentence of imprisonment imposed upon him. He has been convicted of a drug trafficking offence. In July 2002 he conspired to export a large quantity of cannabis from Albania to Greece. A tractor unit with an attached refrigerated trailer was stopped by Customs Officers in Albania, when en route to Greece, and they found within the trailer 1720 kilos of cannabis. The defendant's rτle had been to purchase the trailer using forged documents, and to oversee and/or assist in the loading of the drugs and the welding of the false compartment. On any view he was one of the 'main players' in the conspiracy. The final sentence approved by the Gjirokastro Court of Appeal in October 2005 was 13 years' imprisonment.
2. The defendant left Albania shortly after the commission of the offence. He was tried, convicted and sentenced in his absence. It is accepted he did not deliberately absent himself from the trial."
"There is no suggestion that the defendant waived his right to attend his trial ..."
"When these provisions are looked at in the way I have outlined in paragraph 10 above there is not such a lack of clarity or too many loose ends to prevent this court from concluding that Mr Bogdani, if his extradition were ordered, would be entitled to a retrial or (on appeal) to a review amounting to a retrial, with the minimum rights specified in section 85(8)."
"2. We are sympathetic to the arguments of Mr Yeo, but it seems to us that this is an area which really should now be resolved as best the courts of this country can on the best material which can be produced to deal with this issue. It will then, we would hope, mean that any further applications in relation to such situations by Albania can be dealt with on the basis of an established principle of law.
3. Accordingly, what we propose to do is to adjourn the case today for the Albanian Government to have 28 days in which to produce such material ..."
Consequential orders were made.
"... whether the time limit in Article 147 applies at the time of his surrender to the Albanian authorities, or is capable of being taken as starting at some other earlier date so as to preclude him from now being able to exercise his rights under Article 147."
"... on the best material which can be produced to deal with this issue."
"... I would not consider that the requirements of Ladd v Marshall  1 WLR 1489, had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant 'keeping his powder dry' he must expect the Court to view any application to rely on such evidence with some scepticism. In the present case, I am prepared to accept that the material provided by Dr Blitz could not have been obtained in time for the hearing before the District Judge. I am less convinced that the medical evidence could not have been. Nonetheless, in the circumstances of this case, we have read and are prepared to admit that evidence as part of the material upon which we should determine this appeal."
"It is to be noted, however, that section 29(4)(a) does not establish a condition for admitting the evidence: it establishes a condition for allowing the appeal."
"10. This application to admit new evidence is made at the very hearing fixed for the appeal. The appeal has already been adjourned once because there was outstanding material. The matter has proceeded in a shaky and undisciplined fashion, and procedurally the court has been frustrated by a lack of clear preparation. However, it seems to me that it is not really possible to do justice in the appeal or the cross-appeal unless the court is in a position to consider this material. If Mr Keith's submissions about it are right, then it goes to the very core of the merits both of the appeal and the cross-appeal on the passage of time issue.
11. I would propose with some misgivings, therefore, to admit the evidence."
"1. The prosecutor, the defendant, the private parties and the defence lawyers shall be reinstated the fixed time-limit when they prove to have not been able to observe the time-limit due to mischance or a force majeure.
2. In case the decision is rendered in absentia, the defendant may request the reinstatement of the time-limit to make an appeal when he proves that he has not been notified of the decision.
3. The request to reinstate the time-limit is presented within ten days from the disappearance of the fact which constituted the mischance or any force majeure, whereas in cases provided for by paragraph 2 from the day when the defendant has become effectively aware of the act. The reinstatement of the time-limit is not permitted more than once for each party for each stage of the proceedings.
4. The request is subject to the decision of the authority which proceeds at the time of its presentation.
5. The decision permitting the reinstatement of the time-limit for making the appeal is appealable only along with the final decision.
6. The decision refusing the request for reinstatement of the time limit is subject to an appeal to the Court of Cassation."
"Following that reasoning I have disregarded the evidence of Mr Genci Terpo, the defence expert witness, who provided a 10-page statement/report. I am not impressed by this evidence."
He then gave a reason why he took that view.
"In reply to your question on his right for re-trial, we underline that this national is recognized and guaranteed by the Albanian state the right for re-trial, given that he is tried and sentenced in absentia."
"... to request the renewal of the time limits of filing a claim against the decision for which he has not been notified.
The subject tried in absence has the right to file a claim against the decision on his charge at the respective Court within 10 days from the date when he has been actually notified on the act, which makes possible the retrial of the case ...
By interpretation of this article, we confirm that this right can be practically exercised by the said citizen within 10 days from the date of handing him over to the Albanian authorities. The Ministry of Justice is legally entitled to decide on respecting the conditions imposed by the foreign state that in this case relates to the right of retrial of the subject tried in absence."
"The European Convention of Human Rights enjoys a privileged status in proportion to any other norm of international agreements because it is expressly mentioned in the text of the Constitution thus being translated into a constitutional norm. Consequently, the judges may directly refer to the jurisprudence determined by the Court of Strasbourg in that respect."
Mr Jones relies upon those assurances. He states that they are an unambiguous and clear indication of Albanian law and of the protection afforded to a person being returned.
"As presented by the normative remedy made in terms of the article 147 of the Code of Criminal Procedure and the jurisprudence developed for that article by the Albanian courts, the word group 'given notice of the act' is deemed the moment of the signature of the record on the execution of the judicial decision on the part of the defendant and the Albanian police representatives. This record is signed immediately as the defendant enters the Albanian territory where he is informed no [sic] the judicial decision taken against him."
"... article 147, point 2 of the Code of Criminal Procedure, has already generated a consolidated jurisprudence in the judicial and doctrinal-juridical tradition of the Republic of Albania. The receipt of knowledge of the act without uncertainty is deemed the receipt of knowledge of the decision which is reflected and proved only by the signature of the defendant in the respective record drafted at the moment of his entry into the territory of the Republic of Albania. Right at that moment, the accused is given the effective notice of the rendered judicial decision and since that moment starts the legal time limit of 10 days of the accused to present the request for the reinstatement in time limit, pursuant to the article 147, point 3 of the Code of Criminal Procedure." (emphasis added, the word 'effectively' appearing in Article 147(3))
"This fact is proved by the paper bearing No 211/2 Protocol dated 12.01.2007 and the record dated 15.01.2007."
"... the request for reinstatement in time limit by the defendant is decided by a judicial decision in which the court bears a minor interpreting role insofar as the conditions and circumstances provided for in the article 147 of the Code of Criminal Procedure are met. In this view, the court decision is a bureaucratic and a merely formal process as long as it is proven that the receipt of knowledge of the act without uncertainty is considered the recognition of the decision reflected with the signature of the defendant on the day of his handover in the territory of the republic of Albania."
"1. The court which has decided the reinstatement of the time-limit, upon request of the party and as far as possible, orders the repetition of actions in which the party was entitled to participate.
2. When the reinstatement of the time-limit is rendered by the Court of Cassation the repetition of the actions shall be decided by the court which is competent to hear the case on its merits."
" However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the Respondent would be entitled to the required re-trial or (on appeal) review amounting to a re-trial in Albania. I do not doubt the good faith in which the 'guarantee' was given but I see considerable force in the submissions of Mr Pearse Wheatley. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the Respondent would receive in Albania the re-trial, or review amounting to re-trial, which the 2003 Act requires if extradition is to be ordered. I do not find signatures of the European Convention on Human Rights, or the UN Covenants, in themselves amount to sufficient assurance in the circumstances."
"27. The conclusion I reach is that the position is too uncertain to enable the court to conclude, on the strength of the guarantee provided, that the appellant would be entitled to a retrial on his return. There are still, in the words of Pill LJ in Bleta, 'too many open ends and insufficient clarity'. I have reached that conclusion without the need to take into account additional expert evidence filed at a late stage on the appellant's behalf, ..."
"Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). 'Entitled' as a matter or ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not."
"The position in this case is different. There is no ambiguity about the Romanian constitution: it not only incorporates Article 6 but provides that it shall not [sic] prevail over any provision of the Criminal Code. Nothing in Bleta precludes the conclusion that, in a clear case such as this, the court should look first and last at the law of the requesting state. I would hold that it is wrong to do otherwise."
"Definitely, for Armando Bogdani there is no chance for another judgment and for granting him the possibility to be listened and defending from accusation upon his charge."
"Whereas Constitutional Court by decision no. 17 dated on 17.04.2000 stands to the opinion that for the right of claiming is entitled not only the attorney chosen by the defendant's relatives but even by a special person appointed by Court or Prosecution."
That is a different question. Reference is made to the fact that the attorney chosen by the family has not been empowered to take a different attitude.
"Regarding this case, we can not make a re-establishment of the term based on article 147 of Criminal Code Procedure for the fact that claims have been made by his attorney, but without Armando's authorization or power of attorney."