APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
 HCJAC 84
Appeal No: XC255/11
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
THE LORD ADVOCATE, representing The Government of the Republic of Albania
Appellant: Richards, Q.C., Pike; J P Mowbery, Glasgow
Respondent: W J Wolffe, Q.C., Hawkes; Crown Agent
1 June 2012
 The appellant is an Albanian national. In 2001 another Albanian national was killed in London. A charge of his murder was brought against the appellant who was, in the Court of Elbasan, Albania (a District Court), convicted of that murder in his absence, but after the hearing of evidence, on 23 December 2002. He was sentenced to twenty two years’ imprisonment. He was represented in those proceedings by a court-appointed lawyer. That determination became final on 3 January 2003, no appeal having been taken within the prescribed time limit. It is not disputed that that court had jurisdiction to try him and to convict him in his absence (Colozza v Italy (1985) 7 EHRR 516; Sejdovic v Italy (2006) App. No. 56581/00 at para 82).
 The appellant was ultimately traced to Scotland where he was arrested, initially under a provisional arrest warrant under section 73(3) and (4) of the Extradition Act 2003 (“the Act”) on 25 June 2010, and thereafter held under a full extradition request. The full extradition hearing took place at Edinburgh Sheriff Court before Sheriff K M Maciver on 16 December 2010 and following days. Various issues were raised before the sheriff, the majority of which are no longer live. Among the questions decided by him was whether, on being returned to Albania, the appellant would be entitled to a retrial or (on appeal) to a review amounting to a retrial (section 85(5) and (8) of the Act) and whether his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 87(1)). Both these questions the sheriff on 20 January 2011 answered in the affirmative. He accordingly, in terms of sections 87(3) and 141(1) of the Act, sent the case to the Scottish Ministers for their decision whether the appellant was to be extradited.
 The Scottish Ministers decided under section 93(2) that they were not prohibited from ordering the appellant’s extradition. He thereafter appealed to this court under section 103(1) of the Act (erroneously marked as an appeal under section 26(1)). Various grounds of appeal were stated in the Note of Appeal, some of which were subsequently withdrawn. On 2 February 2012, after sundry procedure, this court held that certain evidence was admissible and other evidence inadmissible for the purposes of the appeal. That ruling, in effect, excluded ground of appeal 3(v). The only subsisting ground of appeal was accordingly ground 3(iv) which reads:
“The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act.
Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant.”
(5) … [the judge] must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(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.”
 This issue was decided by the sheriff essentially upon the documentation provided as part of the extradition request. In terms of the decision of this court on 2 February 2012 expert evidence bearing on this aspect of the appeal was allowed to be admitted. The expert initially envisaged as a witness became unavailable but evidence along the same lines was adduced, by video link, from Ms Elira Kokona, whose credentials as an expert in Albanian law were not disputed. She was the only witness adduced.
“(1) On an appeal under section 103 the High Court may –
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if … the conditions in subsection (4) are satisfied.
(4) The conditions are that –
(a) … evidence is available that was not available at the extradition hearing;
(b) the … evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person’s discharge.”
 For the purposes of this appeal Mr Wolffe for the respondent accepted that Ms Kokona’s evidence was evidence which “is available that was not available at the extradition hearing” within the meaning of section 104(4)(a).
 The issue which arises under section 85(5) and (8) is a matter of Albanian law. That, in this court, is an issue of fact, upon which the court must proceed on the expert testimony which it accepts (The Queen (On the application of Mucelli)  EWHC 95 Admin, per Cranston J at para 50). Much of the constitutional and legislative background is not in dispute. Translations into English of the relative sources were before the court.
“1. The law constitutes the basis and the boundaries of the activity of the state.
2. The Constitution is the highest law in the Republic of Albania.
3. The provisions of the Constitution are directly applicable, except when the Constitution provides otherwise.”
Article 5 provides:
“The Republic of Albania applies international law that is binding upon it.”
Article 15.1 provides:
“The fundamental human rights and freedoms are indivisible, inalienable, and inviolable and stand at the base of the entire juridical order.”
Article 17.2 provides:
“[Limitations of the rights and freedoms provided for in the Constitution] may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.”
Article 30 provides:
“Everyone is deemed innocent so long as his guilt is not proven by final judicial decision.”
Article 31 provides:
“In a criminal proceeding, everyone has the right:
(a) to be notified immediately and in detail of the charges against him, of his rights, and to have the possibility created to notify his family or relatives;
(b) to have sufficient time and facilities to prepare his defence;
(c) to have the assistance of a translator without charge, when he does not speak or understand the Albanian language;
(ç) to be defended by himself or with the assistance of a legal defender chosen by him; to communicate freely and privately with him, as well as to be provided free defence when he does not have sufficient means;
(d) to question witnesses who are present and to seek the appearance of witnesses, experts and other persons who can clarify the facts.”
Article 33(1) provides:
“Everyone has the right to be heard before being sentenced.” [Miss Kokona explained that that last word included “convicted”.]
Article 116.1 provides:
“Normative acts that are effective in the entire territory of the Republic of Albania are:
(a) the Constitution;
(b) ratified international agreements;
(c) the laws;
…”. [Miss Kokona confirmed that the European Convention on Human Rights was an international agreement ratified by the Republic of Albania.]
Article 117.3 provides:
“International agreements that are ratified by law are promulgated and published accord to the procedures contemplated for laws …”.
Article 122.1 provides:
“Any ratified international agreement constitutes part of the internal legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law...”
 Criminal procedure in Albania is subject to the Criminal Procedure Code of the Republic of Albania. There are three tiers of criminal courts: criminal courts of first instance [District Courts], Appellate Courts and the Supreme Court (Article 12). The first two tiers have territorial jurisdictions; the Supreme Court has jurisdiction throughout Albania. The Appellate Courts, like the District Courts, are courts of both fact and law. Appeal to, or review by, the Supreme Court is available only on an issue of law. The Supreme Court has a jurisdiction to review final determinations. Article 450 provides:
“The review may be requested:
(a) when the facts of the grounds of the sentence do not comply with those of another final sentence;
(b) when the sentence is relied upon a civil court decision which after has been revoked;
(c) when after the sentence new evidence have appeared or have been found out which solely or along with those ones evaluated prove that the sentenced is not guilty;
(ç) when it is proved that the conviction is rendered as a result of the falsification of the acts of the trial or of another fact provided by law as a criminal offence.”
As discussed below, that article has been the subject of judicial interpretation.
 There is a prescribed time limit (10 days – Code, Article 415.1) for bringing an appeal to the relative Appellate Court against a conviction in the District Court. However, provision is made by Article 147 for the renewal of time limits in cases of unforeseen events or force majeure. Article 147 further provides:
“2 In case the decision is rendered in absentia, the defendant may request the renewal of the time limit in order to make an appeal when he proves that he had [no] notice of the decision. [The negative is not in our translation but Miss Kokona confirmed that this was an error in the translation.]
3 The application for the removal of the time limit is filed within ten days …, in cases provided by paragraph 2, from the day when the defendant has received actual knowledge of the act (decision). …”.
Article 148.1 provides:
“The court that has decided the renewal of the time limit, on the request of the party and to the extent that it is possible, orders the repetition of acting in which the party was entitled to take part.”
 The Assembly of the Republic of Albania has also passed a Law No.10 193 dated 3 December 2009 entitled “On Jurisdictional Relations with Foreign Authorities in Criminal Matters”. Article 51.4 of that Law provides:
“A final decision rendered against an 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.”
 That Law has been the subject of two recent decisions in the Supreme Court of Albania. In the first No. 00-2010-1362 Decision (812) the case of Florian Meçe, that court considered an application by Meçe (“the plaintiff”) for review under Article 450 of a series of decisions (by the District Court, by the Appellate Court and, on further appeal, by the criminal section of the Supreme Court) which had convicted (or upheld the conviction of) the plaintiff on a charge of murder. A number of grounds of review were advanced. One of these was (in translation) in the following terms:
“The Spanish National Supreme Court has extradited the tried person Florian Meçe on the only condition of the repetition of the judicial process, a guarantee that is given by the Albanian authorities, in application of Articles 450 and 453 of the Criminal Procedure Code.”
Meçe had been tried in absentia in Albania. He had subsequently been extradited from the Kingdom of Spain, certain guarantees having been given to the Spanish court in relation to his retrial. After sundry court proceedings the Constitutional Court decided to repeal, as incompatible with the Constitution, a decision of the criminal section of the Supreme Court. The effect of the Constitutional Court’s decision (as explained on the return of the case to the Supreme Court) was as follows:
“According to the documentation available in the file, the extradition of the national Florian Meçe from the Kingdom of Spain is made possible only after the Albanian State accepted, through the Minister of Justice, to meet the commitment taken over to the Spanish State that it would ensure the retrial of the plaintiff. The Court emphasizes that the obligation to guarantee in advance the respect of the right to retrial of the extradited person, is a consequence of the ratification by the Republic of Albania by Law No. 8322 dated 02. 04. 1998, of the Convention of the Council of Europe on Extradition and its two Additional Protocols, article 2 of which provides: ‘When one of the state parties requests from the other state party the extradition of a person for the purpose of the enforcement of a decision or sentence imposed by a decision rendered against him in absentia, the requested party may refuse the extradition, if, according to it, the procedures that led to the taking of that decision have not satisfied the minimum rights of defense, known to each person that is criminally accused. However, the extradition may be allowed if the requesting party gives adequate safeguards that it shall guarantee the alleged right of a person to retrial, which shall provide the rights to defense. The decision on permission shall entitle the requesting party either to enforce the judgment in question if the sentenced person agrees, or if he objects it, to carry out the procedures against the extradited person.’”
The Supreme Court continued:
“Concurrently, based upon new developments of the legislation in criminal matters, it results that it has been approved the Law No. 10193 dated 03. 12. 2009 ‘On Jurisdictional Relations with Foreign Authorities in Criminal Matters’, which through article 51, established the proper legal basis for the respect of the international agreements through the obligations the Albanian State assumes to realize, in order to obtain a fuller dimension as regards the defense ensured by the principle of the due legal process.
The Criminal Section of the Supreme Court deems to submit that in article 51/4 of the Law No. 10193 dated 03. 12. 2009, the Albanian lawmaker provided for as follows:
‘4. Final criminal decision rendered against the extradited person by the national judicial authorities, in his absentia, may be reviewed upon 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 the Albanian territory and its review follows the rules of the Criminal Procedure Code.’
Considering the formulation of this provision, it is clear that each extradited subject, in addition to cases provided by the respective provision of the Criminal Procedure Code, is recognized the right to the review of decision, when the Minister of Justice has given these guarantees to the state to which the extradition was requested, pursuant to the provisions of the said Convention. It is worth stressing that a series of European legislations of the criminal procedural law, do not recognize the system of the trial of the subject in absentia for the criminal offences classified as crimes, consequently obliging the respective states to apply to the subject they are required to extradite, the same guarantees for the trial of the case such as the right to be heard by an independent and impartial court.
Meanwhile, in our country, article 450 of the Criminal Procedure Code exhaustively provided for cases when a final judicial decision may be reviewed by the Albanian judicial authority. It is established that in the request for review submitted by the plaintiff Florian Meçe, none of the cases provided for in the four letters of article 450 of the Criminal Procedure Code was provided as it specifically refers to the guarantee given by the Minister of Justice for the retrial of the case for the purpose of guaranteeing the right to defense.
The Criminal Section of the Supreme Court deems to emphasize that considering the text of provisions of articles 116/1, 122 of the Constitution of the Republic of Albania, where the hierarchy of legal norms is recognized and it is foreseen the prevalence of standards of international agreements over nationals laws, article 2 of the Convention of the Council of Europe on Extradition and its Two Additional Protocols, and Law No. 10193 dated 03. 12. 2009, in cases of guarantees to be given by the Albanian state to the extradited subject, a procedural possibility must be created to exercise the right of defense against the charges raised by the prosecuting body.
Considering that pursuant to the Albanian criminal procedural law, the Supreme Court of the Republic of Albania is not a first instance court but represents a court of law, the right of defense against the charges raised by the prosecuting body cannot be limited on its realization (of the right) before the jury of that court (Supreme Court) without previously guaranteeing this right to the respective subject during the trial at first instance courts.
The Criminal Section of the Supreme Court deems that in this specific case, only the annulment of decisions taken by first instance courts and review of the case would provide to the prosecuted subject the right of guaranteeing his defense as long as his trial at all trial instances was conducted in absentia.”
The Supreme Court accordingly accepted the plaintiff’s request for a review, annulled the various determinations against him and remanded “the case to the District Court of Vlora for retrial with another jury”.
 It is accordingly plain, as Miss Kokona accepted, that the Supreme Court of Albania has recognised the significance of guarantees given by the Albanian authorities to the requested state and has construed Article 450 of the Criminal Code so as to admit review of a determination pronounced in absence where the requisite guarantees have been given. The remedy afforded in that case was to remit to the District Court for retrial.
 The decision in Meçi was followed by the Supreme Court in the case of Armando Bogdani (No. 00-2011-131 of Decision (9)), where the plaintiff had, against similar guarantees, been extradited from England. He had in Albania been convicted in absence on a number of charges, including trafficking of narcotic substances, and sentenced to thirteen years’ imprisonment. A number of grounds of review were advanced on Bogdani’s behalf. In accepting his application for review under Article 450 the Supreme Court emphasised the prevalence of international agreements over domestic laws. It said:
“The Criminal Section of the Supreme Court deems to emphasize that considering the text of provisions of articles 116/1, 122 of the Constitution of the Republic of Albania, which recognize the hierarchy of legal norms and provide for the prevalence of the normative of international agreements over the domestic laws, article 2 of the Convention of the Council of Europe for Extradition and Two Additional Protocols, and Law No. 10193 dated 03. 12. 2009, in cases of a guarantee granted from the Albanian state in the form provided for in the said law, the extradited person should be given the procedural opportunity to exercise the right of defense against charges raised by the prosecuting authority.
Considering the fact that the Supreme Court in the Republic of Albania, on the basis of the Albanian criminal procedural law, is not a first instance court but represents a court of law, the right of defense against charges raised by the prosecuting authority is not limited to its implementation (right) before the jury of that court (Supreme Court, without previously guaranteeing this right to the respective person during the trial at the first instance courts.
The Criminal Section of the Supreme Court deems that in this specific case, only the annulment of decisions taken by the first instance courts or one of them and the review of the case may provide the prosecuted subject the right of the guarantee of his defense as long as his trial at all instances of trial was conducted in absentia.
In circumstances when the criminal procedural provisions of the Albanian law recognize to the appellate court the role of first instance court in the review of criminal cases, in reference of the rights of the subjects of trial and the court itself during the trial of the case before the appellate court, specifically provided for in the provisions of articles 425, 427, 367 of the Criminal Procedure Code, the Criminal Section deems that the right of defense for the plaintiff may be fully realized before the Appellate Court of Gjirokaster, which may evaluate the claims raised by the subject, also part of the contents of the request for review, in line with the acts administered in the quality of evidence by the First Instance Court of Gjirokastër.”
The decision of the Supreme Court was to annul an earlier decision of the Supreme Court and a decision of the Appellate Court of Gjirokastër and “bring the case for trial, with another jury, to the Appellate Court of Gjirokastër”. That being a court of fact as well as of law would afford the plaintiff a rehearing amounting to a retrial.
 The effect of the final phrases of the last paragraph are not wholly clear, though the articles of the Code referred to give some idea of the scope of the re-examination envisaged. They are as follows:
425.1 “The court of appeal examines the case thoroughly and it does not restrict itself to only the grounds presented in appeal”.
427 (headed “Retrial”):
“1 When a party requests the retaking of the evidence administered during the court examination in the first instance or the taking of new evidence the court, if it evaluates it necessary, decides the entire or partly re-performance of the judicial examination.
2 The evidence found after the trial in the first instance or those which appear on the spot, are subject to the court decision which, as the case may be, orders whether they must be taken or not.
3 The re-performance of the judicial examination is decided even ex officio when the court evaluates it as necessary.
4 The court decides the re-performance of the court examination when it is proved that the defendant has not participated in the first instance because he has been not notified or has been not able to appear due to lawful excuses.
(Both these articles appear in the section concerned with appeals to the Appellate Courts).
367 “After the taking of required evidence the court, if necessary, may ask additional questions and, even ex-officio, disposes of the taking of additional evidence …”.
(This article relates to the court of first instance).
 It is not disputed in this case that the appellant has never “received actual knowledge of” the decision of the District Court to convict him. Such knowledge, Miss Kokona accepted, could only be brought home to him as and when there was official notification to the appellant. That had never taken place. If the appellant were to be extradited, he would, in accordance with recognised procedure, on arrival on Albanian soil then be given official notification. Such receipt would start the running of the period of ten days under Article 147.3 within which an application might be made for reinstatement of the prescribed time for bringing an appeal. No doubt to be effective procedural steps would require to be taken by the appellant but that requirement does not impinge on his right to pursue an appeal. Miss Kokona accepted in oral testimony that, if the appellant proved that he had had no notice of his conviction (or if it were, as it is, accepted that he had received no such notice), then his application for extension of the time limit would in fact be granted. In her written report she had suggested that the case law shows “that the remedy under art 147 is not a pure formality but a typical discretional decision of the judge”. But it became clear in oral testimony that she was not referring to a “discretion” in the sense ordinarily used in British jurisprudence but to the exercise of judgment on a matter of fact; and that the matter of fact which she had in mind was whether or not the appellant had had notice of the decision. As that fact is conceded by the Albanian Government, there will be no need for a judgment to be made on it.
 On the basis of that material it is clear that the appellant, if extradited to Albania, would have an effective right to appeal to the requisite court of appeal against his conviction. The next question is whether such an appeal would be “a review amounting to a retrial” within the meaning of section 85(5) (as read with section 85(8)). In her written report Miss Kokona did not raise any concerns that, if the appellant’s right to reinstatement of the time for taking an appeal was satisfied, he would not be entitled to a hearing in the appeal court which would constitute a review amounting to a retrial, including the rights referred to in section 85(8). She expressly refers to Article 427.4 of the Code which provides that there will be “the re-performance of the court examination where the defendant has not participated in the first instance because he has not been notified”. There is no suggestion in this case that the appellant had notification of the prosecution against him. On its face that article suggests that in such circumstances there will be a complete retrial – at least in so far as earlier evidence is not accepted by the appellant and subject, of course, to the original evidence still being available. There may, depending on the line taken in defence by the appellant (which at present is undisclosed), be judgments to be made by the appeal court as to the scope of the re-examination. It is, in the first instance, for the Albanian State to choose the means by which it will discharge its obligation to put the appellant, so far as possible, in the position he would have been had he been present at the first trial (Sejdovic, para 127; Piersack v Belgium (1984) Series A No.85 para 12). On its face Article 148.1 of the Code appears to be consistent with the Convention, though Ms Kokona found difficulty in reconciling that provision (which in the present case would appear to vest in the District Court the authority to order the repetition) with the powers vested in the Appeal Court under Article 427. It is, however, unnecessary to rely upon Article 148.1 or to resolve any conflict between the provisions. As Miss Kokona accepted, the Albanian courts, including the appeal courts, are legally subject to the European Convention on Human Rights. Thus those rights, which include those referred to in section 85(8), can be expected to be respected. Whether the appellant’s defence is purely negative in character (a simple denial of responsibility) or involves some positive defence (such as alibi or self-defence) his Article 6 Convention rights are protected. There is no reason to suppose that these rights will be otherwise than practical and effective, including with respect to the use (if it arises) of secondary evidence where the primary evidence used in the original trial is no longer available.
 Article 147 of the Code has been the subject of relatively recent consideration by the European Court of Human Rights (Shkalla v Albania (2011) App. No. 26866/05). But there an appeal had been taken from the original conviction through the agency of a lawyer appointed by the applicant’s family (paras 17-18 and 20). The Albanian Government appears not to have laid before the European Court material to satisfy it that in these circumstances Article 147 provided a practical and effective remedy to the applicant. It is not altogether clear from the judgment what additional material the Court was seeking. However, an aspect of that case was that appeals had in fact been pursued by the family-appointment lawyer. It may not have been clear that this route could be travelled again by invoking Article 147. However that may be, there is no such complication in the present case. It is clear on the evidence before this court that the appellant can, practically and effectively, invoke Article 147.
 In these circumstances we are satisfied that under Albanian law the appellant would, on his return to Albania, be entitled to apply for an extension of the time limit for bringing an appeal against his conviction, that in the undisputed circumstances he would be entitled to have that application granted and that thereafter he would be entitled on appeal to a review amounting to a retrial with the rights referred to in section 85(8). In these circumstances, due regard being had to the evidence adduced in this appeal and to our conclusions on it, we are satisfied that that evidence would not have resulted in the sheriff deciding the question under section 85(5) differently. We accordingly dismiss the appeal.
 It is unnecessary to say much about any alternative procedural route by which section 85(5) might be satisfied. Consideration was, however, given before us to an alternative route, namely via Article 450 of the Code. The Supreme Court of Albania appears to have jurisdiction by way of appeal and by way of review (Chapters III and IV respectively of Title VIII of the Code). Article 450 falls within the latter Chapter. As mentioned above, Article 450 has been the subject of interpretation by the Supreme Court in Meçi and in Bogdani, the thrust of which is that Article 450 has been found apt to encompass as a competent ground of review the situation where an Albanian national has been tried in absence and the Albanian State has, for the purposes of extradition proceedings, given to a foreign court guarantees in relation to the extraditee’s right to a retrial. In one of these cases (Bogdani) the extradition was from the United Kingdom. In the present case it was accepted that equivalent guarantees had been given to this court. In each of Meçi and Bogdani the remedy afforded by the Supreme Court on an application for review was the ordering of a retrial – in one case in the District Court and in the other in the Appellate Court. Although in each of these cases other grounds of review had been tabled, it is clear that the ground of judgment was the fact that the guarantees had been given. In the case of Toshi (No. 00-2011-268 of Decision (33)) in which also a retrial was ordered, the sole ground of review appears to have been based on the guarantees given by the state. We see no reason why the appellant, whether with or without other grounds of review, should not be able, if it be necessary, to invoke this consistent line of authority, which Miss Kokona accepted represented the law of Albania.
 Mrs Richards, as earlier mentioned, sought to make something of the final phrases of the last paragraph of the judgment in Bogdani – suggesting that, notwithstanding the Supreme Court having remitted the case for retrial, what was envisaged was only a partial reconsideration. The passage in question is in translation somewhat obscure and Miss Kokona’s evidence (despite some leading questions on the matter) did not, to our satisfaction, adequately clarify it. But we are not persuaded that any limitation was put on the extent of the reconsideration ordered in that case such as to suggest that a party, extradited against guarantees of a retrial, would be unable by the process of review in the Supreme Court to obtain, in the District or in the Appellate Court (both courts of fact and of law) a retrial or a review amounting to a retrial within the meaning of section 85(5).