QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
|The Queen on the application of Vullnet Mucelli
|- and -
|The Secretary of State for the Home Department
|Fair Trials International
|The Government of Albania
|The Government of Albania
Ben Watson (instructed by the Treasury Solicitor) for The Secretary of State for the Home Department
Rachel Barnes (instructed by Fair Trials International) for the Intervener
John Hardy QC and Ben Lloyd (instructed by Lawrence & Co) for Lulzim Hoxhaj
John Hardy QC and Aaron Watkins (instructed by Lawrence & Co ) Marush Gjoka
John RWD Jones (instructed by CPS ) for the Government of Albania
Hearing dates: 18-19 January 2011
Crown Copyright ©
Mr Justice Cranston:
Mucelli's judicial review
"[T]he Ministry of Justice guarantees in advance on behalf of the Albanian state and in conformity with the article 504(2) of the Albanian Code of Criminal Procedure: 1. The enforcement of the right for retrial of the subject upon request, in accordance with the Albanian Constitution and pursuant to the articles 147, 148, 449, 450, 453 of the Code of Criminal Procedure of the Republic of Albania…": see  EWHC 2632;  1 WLR 2437, .
There was a further letter, dated 10 May 2007, confirming that Mr Mucelli could exercise "the right of retrial" within ten days from the moment he was handed over to the Albanian authorities. The request was certified by the Secretary of State the following month. In June 2007 District Judge Evans heard evidence from Mr Mucelli and concluded, inter alia,
"I do not believe or accept the defendant's evidence. Within it there are inconsistencies …The reality is that he has been living a lie for the whole of his time in this country. His Certificate of Naturalisation shows a variant on the false given name, Viez instead of Veiz. His place and country of birth is shown as Decon, Federal Republic of Yugoslavia. He has a criminal record in this country which shows four aliases in addition to the assumed name of Veiz Halili and one false date of birth in addition to the one provided to the immigration authorities."
The judge sent the request to the Secretary of State, who ordered Mr Mucelli's return to Albania in July 2007.
"will confirm that Mr Mucelli is entitled to a retrial by virtue of the guarantee given by the Albanian Ministry of Justice. The Supreme Court will therefore repeal the decisions of the first instance court and the appeal court, and send the case back to the first instance court for a re-trial".
Following the Brace letter the matter was delayed during 2011 as the parties obtained further evidence of the legal position in Albania. I return to this evidence below.
"pursuant to article 3 of the Second Additional Protocol of "European Convention on Extradition" and article 504/2 of the Criminal procedure Code, article 51 of Law No 10193 dated 3.12.2009 "On Jurisdictional Relations with Foreign Authorities in Criminal Matters", the Ministry of Justice communicates the following supplemental guarantees on observance of the right for retrial of the subject because of his trial in absentia, previously sent by our letter no 452/11/S.C dated 27.1.2011. We emphasis that supplemental guarantees are the same as those submitted in Mucelli's defence case in the High Court of the United Kingdom."
In particular, referring to the Albanian Supreme Court Decision No. 812 dated 17 September 2010, Mece, the document stated:
"[W]e expect that the citizen Lulzim Hoxhaj alias Hoxhaj be relied upon article 450 regarding his right to retrial" (sic).
The document concluded with a guarantee of a fair trial given Albania's adherence to the ECHR and the supremacy of that in Albanian law under the constitution.
THE ALBANIAN LAW
Constitution and legislation
"Article 3 - The Convention shall be supplemented by the following provisions:
'Judgments in absentia
When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited.""
Albania ratified the Convention and Additional Protocols by Law 8322 of 2 April 1998.
51.4: "A final decision rendered against the extradited person by the local judicial authorities in his absence may be reviewed at the request of the extradited person, if the Minister of Justice has given such a guarantee to the requested State. The request for review is submitted within 30 days from the arrival of the extradited person in Albanian territory and its examination follows the rules of the Code of Criminal Procedure".
147.2 "If the decision was rendered in his absence, the defendant may request the reinstatement of the time-limit to appeal when he proves that he has not been notified of the decision."
Article 147.3 continues that that request must be within 10 days from the date when the person has been actually notified of the act which makes the retrial of the case possible. Article 148 then provides for the effects of a reinstatement of a time-limit.
148.1 "The court which he has decided the reinstatement of the time-limit, upon request of the party and so far as it is possible, orders the repetition of the operations in which the party was entitled to participate. "
"(a) when the facts of the grounds of the decision do not comply with those of another final decision; (b) when the decision has relied upon a civil court decision which has subsequently been revoked; (c) when following the decision new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and (d) when it is proved that the decision was rendered as a result of the falsification of judicial acts or evidence considered by law as a criminal offence."
Appeals are dealt with in Articles 422-430 CCP. Under Article 451 the accused or the prosecutor may file a request for a review in accordance with the grounds of review in Article 450.
43."In the light of that set out above, the court considers that in implementing article 46 [ECHR] the obligation arises … to allow citizens, who had effectively not been aware of criminal proceedings against them, to have the right to have court proceedings re-opened in keeping with article 147 of the Code of Criminal Procedure. The court considers that this obligation arises in the case of all judicial authorities at any level including the referring court, which is obliged to apply internal legislation in keeping with the Constitution and the ECHR."
The court held that the rights of defendants to participate in their trial, and to select their representatives, were individual constitutional rights, which could not be transferred to family members: . The family could only select a lawyer if they were expressing a defendant's desire not to participate in the trial and were in contact with him: -. Interpreting the provisions of the CCP in this manner meant that they were constitutional.
"It should be said that legal criminal procedure in a number of European countries does not recognise the system of trial in absentia for offences categorised as crimes; this consequently obliges the countries concerned, to provide – towards the individual it's been asked to extradite – the same guarantee in prosecuting the case, as in the case of granting him the right to have his case heard by an independent and impartial court."
The Court continued that Mece's case did not fall within the words of Article 450 CCP. However, there was the supremacy in the Albanian Constitution of international treaties over national law, coupled with the European Convention on Extradition and Law No 10 193. Thus in cases where the Albanian state had given a requested state a guarantee, extradited persons should be granted the procedural possibility to exercise their right of defence against the charges raised by the prosecution. Thus the Supreme Court upheld Mece's request for a retrial before a District Court. There was no evidence before us as to whether that had occurred.
"Following the newly established judicial practice [i.e. Mece], the Criminal Section of the Supreme Court deems that the request submitted by the sentenced person Armando Bogdani must be accepted and the judicial decisions taken against him during the review of the case in merits must be annulled by bringing the case for retrial. The legal circumstances reviewed by this Section, in the trial in question, are similar to the ones of the case against the national Florian Mece."
The judgment then tracked the discussion in Mece, canvassing Article 3 of the Second Additional Protocol of the European Extradition Convention, Article 51 of Law No 10 193, Article 450 CCP and the supremacy of international agreements in Albanian constitutional law.
Legal basis of applications
English case law on Albanian extraditions
"[E]xamination of the detailed provisions of the Code of Criminal Procedure to which the letter then refers casts real doubt on the effectiveness of the guarantee. Article 147 appears to provide for the possibility of reinstating the time-limit for an appeal, upon the request of a defendant who has been tried in his absence. But the decision whether to grant such a request is that of the court and there is no obvious mechanism whereby the government can require the court to accede to the request (nor would one expect there to be one if the independence of the judiciary is respected). Moreover article 450 lays down the grounds on which a "review" may be requested, none of which could reasonably be said to be engaged on the facts of this case; and although it is not clear whether that article governs consideration of a request under article 147, the reference to it in the Ministry's letter suggests that it does": 
Richards LJ continued that the position was 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'": .
"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": .
"but making all due allowances for such difficulties, it does seem to me that a very great deal has been lost in the process of interpreting the responses of the Albanian government in this case": .
The expert report for the appellant was to the effect that they would not have an automatic right to retrial: . The Albanian authorities had explained the effect of Article 147 CCP. Counsel for the Albanian Government accepted that the position as regards retrial on return was not unequivocally clear: , . It appeared to depend on representation at trial and whether a conviction had been appealed to the Court of Appeal and the Supreme Court: .
ECHR jurisprudence on Albanian extraditions
"The Court notes that the respondent State's criminal legal system does not provide for the possibility of re-examining cases, including reopening of domestic proceedings, in the event of this Court's finding of a serious violation of an applicant's right to a fair trial. It is not for the Court to indicate how such a possibility is to be secured and what form it is to take": 
"It would appear that an appeal to the Constitutional Court is an effective remedy for challenging a conviction in absentia": .
Because the Constitutional Court in Shkalla had rejected the applicant's appeal as out of time, however, the Strasbourg Court went on to conclude that in the instant case it was not precluded by the non-exhaustion principle from considering the merits of the application. It went on to hold that there had been a violation of his Article 6 rights on account of the unfairness of the proceedings and his conviction in absentia: .
THE PRESENT CASES
Mr Mucelli's submissions
The case for Messrs Hoxhaj and Gjoka
Lord Justice Toulson: