England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		25th July 2008

1. LORD JUSTICE PILL: The Albanian Government seeks the extradition of Mr Armand Bogdani, at present in the United Kingdom. At a hearing on 8th February 2008 District Judge Nicholas Evans stated that under section 87(3) of the Extradition Act 2003 he would send the case to the Secretary of State for his decision as to whether Mr Bogdani is to be extradited.
2. On 21st April 2008 the Secretary of State, under section 93(4) of the Act, ordered the extradition of Mr Bogdani ("the appellant") to Albania, being a territory designated for the purposes of Part 2 of the Act, for the offences contained within the request from Albania dated 30th July 2007.
3. The appellant appeals against the finding of the District Judge under section 85(5) of the Act, that the appellant on return would be entitled to a retrial, or on appeal to a review amounting to a retrial.
4. Section 85 provides:

"(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."

5. The District Judge described the circumstances in the opening paragraphs of his judgment:

"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 rôle 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."

6. The District Judge made a later finding consistent with that at paragraph 10:

"There is no suggestion that the defendant waived his right to attend his trial ..."

7. The judge considered the provisions of Albanian law and concluded at paragraph 15:

"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)."

8. The appeal came for hearing before this court, Latham LJ presiding, on 10th June 2008. There was, it is clear from what Mr Yeo (who appears today, as he did then, for the appellant) has told us, some preliminary discussion. The court then decided that the case should be adjourned. Latham LJ stated at paragraph 2, having heard arguments that the Albanian Government had had enough opportunity to satisfy the requirements of section 85 as to retrial:

"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.

9. One of the points with which the court was concerned was:

"... 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."

10. I am not prepared to hold that Latham LJ stated that on the existing material the court, which in any event had not heard argument on the material, would allow the appeal. He may well have said — I am not doubting the impression Mr Yeo got — in the course of argument that he saw difficulties in the Government of Albania's way. However, I am not prepared to hold that he gave any clear indication as to the view of the court as then constituted (Nelson J being with him), as to the way the case would be resolved on the existing material. Latham LJ made clear that his concern was that the issue would be resolved:

"... on the best material which can be produced to deal with this issue."

11. That is an approach in my view wholly consistent with that to be taken in extradition cases. In the authorities there are references to the importance of international comity, to courts not being overtechnical when considering extradition applications by foreign governments or, of course in category 1 cases, applications under the Framework Decision. I do not propose to cite any of those authorities.
12. Mr Yeo submits, that notwithstanding, that the material produced by the government, having been given that opportunity, should not now be admitted. This point was not anticipated by submissions on 10th June. I would have expected it to have been stated that Mr Yeo, on behalf of the appellant, was reserving his position as to the admissibility of such further material. Mr Yeo's interventions after the ruling had been made do not presage any such submission. He raised other questions, such as the possibility of a discharge if no such evidence was produced.
13. I would not seek to exclude Mr Yeo's submission today. But had the point then been thought to have been a good one, that the material which the court was requesting should not then be admitted, I would have expected the point to be taken forcefully at that stage.
14. What the court has done is to look at the material de bene esse. It is necessary to consider it in relation to the material already available and in the light of the court's wish to resolve this important question — important of course for the appellant himself and because there are other Albanian cases — on the best material. Time in which to reply was given.
15. On the question of admissibility, Mr Jones has referred to the case of Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), where it was stated in this court at paragraph 3 (Latham LJ again presiding):

"... I would not consider that the requirements of Ladd v Marshall [1954] 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."

16. That of course was a case where the court was taking a somewhat relaxed view in favour of an appellant and stronger grounds for admission appear in that case. However, in seeking to do fairness between the parties, the approach of the court in that case appears to me to have force.
17. There is no suggestion in this case that the Government of Albania has been "keeping its powder dry". The submission is that they had ample opportunity before the hearing before the District Judge to produce any material on which they sought to rely. They had just over a year. The case had been listed on four occasions. They should not now be given a further opportunity. They have not been keeping their powder dry; they have simply failed to produce the explanation to which the court felt itself entitled when determining whether the section 85(5) requirement was met.
18. In The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin), section 29(4) of the 2003 Act was under consideration in this court, Laws LJ presiding. That section does appear to open the door to fresh evidence before this court, following a hearing before a District Judge. Laws LJ stated at paragraph 9:

"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."

19. I respectfully agree with that approach, but it does not conclude the issue against the Government. Laws LJ also stated at paragraph 10:

"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."

20. Before expressing a conclusion on the point, I refer to the submissions of Mr Yeo. He confronts a clear and firm decision by the District Judge, who had considered the material, including the wording of Article 147 of the Albanian Code and the material supplied about it.
21. Article 147 is headed "Reinstatement of the time limit":

"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."

22. Mr Yeo submits that the Article does not provide an entitlement to a section 85(5) hearing. There is a burden of proof upon the applicant to show that he has not been notified of the decision. I interpose that there is no evidence that the appellant was aware of the conviction until the present proceedings made him aware.
23. It is submitted that it is not clear what "reinstatement" in Article 147(3) and (5) means. If the right can be exercised on return and if it is exercised, it is not clear what follows from that. It is further submitted — and on this point fresh evidence which the appellant himself seeks to adduce is relevant — that there is no indication as to the stage which the earlier proceedings have reached, for example by way of appeal, which enables the court to say whether Article 147 applies. It is clear from the District Judge's findings, which I have read, that there had been an appeal. It is now claimed, as a result of information very recently supplied to Mr Yeo, that there was a further appeal to the Supreme Court. That is claimed to be relevant to the section 85(5) question.
24. There was before the District Judge lengthy evidence from an expert witness on Albanian law called by the appellant. In relation to that the judge stated, having referred to the evidence:

"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.

25. It is necessary to consider the material which has at different stages been before the court, the District Judge and this court.
26. Mr Jones, for the Government of Albania, has not sought to rely on a letter dated 16th May 2008 from the Ministry of Justice. That too is said to have been the subject of a ruling by this court in June. I have great difficulty in following what happened. The fresh material on which the Government now seek to rely comes from the same source as that to which I have just referred, and yet the view was apparently taken by the parties that, even while inviting submissions from that source, the court excluded material which on that day was presented to them. It is not necessary to investigate that question further because Mr Jones does not seek to rely on the letter.
27. The District Judge had a report from the Albanian Ministry of Justice, signed by the Minister, dated 17th October 2007. Article 147 was mentioned. He stated that:

"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."

28. There is reference too to Article 122 of the Constitution to the Republic of Albania, which establishes that each ratified international agreement comprises part of the internal legal system, after being published in the Official Journal of the Republic of Albania; it also prevails over national laws that are incompatible. Article 147 was attached to the letter, though there was no commentary or explanation in relation to it.
29. The District Judge also had a letter dated 25th January 2008, again signed by the Minister. That too affirms the claimed right in Article 147:

"... 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."

30. That in summary form was the evidence on which the District Judge had no difficulty in finding that the requirement of section 85(5) was met. This court plainly had doubts about that, and took the course it did for the reasons expressed which are consistent with reasons expressed in other cases.
31. The letter of 26th June 2008 is again from the Ministry of Justice of the Republic of Albania and is signed by the same Minister. Reference is made to the background. Reference is made to Article 17 of the Constitution, which is in general terms and refers to the European Convention on Human Rights. It is stated:

"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.

32. In relation to the detail of Article 147, it is stated:

"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."

33. Reference is made to the practice in Albania, supporting a view that it is only when he signs the relevant record that the time limit begins to run, in the case of someone convicted in their absence:

"... 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))

34. Reference is then made to two cases, EU, case no. 165 District Court of Fier, 4th October 2007. A man tried in his absence applied on return to Albania for a reinstatement of the time limit for lodging a complaint against his trial in absentia. That was permitted. In the case of LQ, case no. 65, District Court of Fier, 26th February 2007, a decision, upheld it is said in the Albanian High Court, affirmed that a person was deemed to be informed of the decision rendered against him in his absence on the date when he signed the relevant record:

"This fact is proved by the paper bearing No 211/2 Protocol dated 12.01.2007 and the record dated 15.01.2007."

35. In relation to the consequences of the reinstatement of the time limit and the exercise of the right stated:

"... 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."

36. Once that is done, Article 148 is said to come into play:

"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."

37. Mr Jones submits that, as explained, including by reference to case law, the provisions are clear and meet the section 85(5) requirement. They must be read against the background in which the Constitution recognises the direct applicability of the case law of the European Court of Human Rights, including the guarantee of a fair trial afforded by Article 6.
38. The Albanian situation has been considered in this court in earlier cases, and Mr Yeo relies on those. In The Government of the Republic of Albania v Bleta and another [2005] EWHC 475 (Admin) the right to a retrial was under consideration on the information then available to the court. Giving a judgment (with which Cox J agreed), I stated, having set out the somewhat lengthy history, at paragraph 26:

" 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."

39. A similar view was taken in this court in Mucelli v The Government of the Republic of Albania and another, 15th November 2007, [2007] EWHC 2632 (Admin). Richards LJ (with whom Aikens J agreed) considered in that case the somewhat protracted history and the material available in relation to retrial.
40. Having cited my judgment in Bleta, Richards LJ, at paragraph 26, made detailed reference to the material available to the court on that occasion. Richards LJ referred to Article 147 and to the limitations of the material provided in relation to it:

"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, ..."

41. The requirements of section 85(5) were also considered in the case of Da An Chen v The Government of Romania [2006] EWHC 1752 (Admin), decided between Bleta and Mucelli. Both sides seek to rely upon statements of Mitting J (with whom Maurice Kay LJ agreed) in that case. Mitting J stated at paragraph 8, in relation to a case involving Romania and not Albania:

"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."

42. In paragraph 20:

"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."

43. The District Judge expressly relied on that decision. It is not material to my conclusion in the present case but in my judgment there was no basis upon which the District Judge could say, as he did at paragraph 8 of his judgment, that had Da An Chen been cited to the court in Mucelli, it might have reached a different conclusion. Richards LJ conducted a careful analysis of his own, and that analysis is in no way impugned, in my view, by the judgment of Mitting J in Da An Chen.
44. The relevant law must be clear. Mitting J twice recognised that in his judgment in Da An Chen. The problem in both the other cases was, on the material available, the obscurity of the provisions of Albanian law and bearing in mind, as it must, the need to protect individual liberty, the inability of courts in those cases, because of the lack of clarity and open ends, to find that the provisions of section 85(5) were met.
45. I would admit the material in the letter of 10th June. This court at its earlier hearing plainly contemplated its admission, and no objection was at that stage anticipated. It is important that in extradition cases, the court, when construing statutory material from other countries, has the best guidance available. There are difficulties, not only in translation, but in demonstrating the effect of a code, or a constitution, drafted in a different tradition into concepts familiar with those in this jurisdiction who need to construe it. It is, I accept, surprising that the Government of Albania has taken so long, first, to provide the appropriate information and, secondly, to make clear the effect, supported now by case law, of Article 147 .
46. It appears to me to be in the interests of justice that the court should have regard to the further explanation. It does not conflict with the earlier material. It does provide case law which is new, but is explanatory of what was in the earlier material, but more than by way of assertion than by way of explanation.
47. Before expressing a final conclusion I should refer to the application made on behalf of the appellant to introduce material in a document produced to the court only today, and obtained by those appearing for the appellant only within the last two days. That is from an Albanian lawyer, Mr Sanxhaku not the lawyer whose evidence was before the District Judge, and refers to information claimed to be available that, unknown to the appellant himself or to those appearing for him, a further appeal, to the Supreme Court, was made against the conviction recorded in the absence of the appellant. That, the letter states, changes the position. Where there has been an appeal to the Supreme Court, Article 147 cannot take effect. It was stated:

"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."

48. It is important to consider the reasoning in support of that assertion, there being no obvious link between Articles 147 and 148, plainly included for a purpose, and now explained, and the pursuance of a further appeal in absentia in relation to the earlier conviction. Much of the letter deals with the right of other people to act in the absence of the appellant:

"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.

49. It was stated by Mr Sanxhaku:

"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."

50. There is no explanation whatever of the link, in a system of law developed as the Albanian system now is, between pursuing an appeal on the earlier conviction and the operation of Article 147. There is nothing in Article 147 which suggests that the rights included in it cease to operate if, an appeal already having been made to everyone's knowledge to one court in Albania, a further appeal is made to the Supreme Court. It would appear an extraordinary situation and one which, if accurate, requires far greater explanation than that given, if the exercise of an appeal, whoever authorised it, to the Supreme Court, affects the rights which exists under Article 147.
51. It is very surprising that, if this point were to be made, it has not been made earlier, even if it is right that the appeal to the Supreme Court has only recently been made, and I make no finding of fact about that. The possibilities of Article 147 being set aside by such a potential event, and the effect of such possibilities upon section 147, I would have expected to have been raised much earlier had there been any merit in them.
52. I admit this evidence. Having admitted evidence on behalf of the respondent, though the circumstances are different, it would not be right simply to exclude this evidence. But having considered it and heard the submissions of counsel upon it, I can make no different construction of Article 147 in reliance of the letter now supplied.
53. It follows that in my judgment the District Judge was entitled to reach the conclusion he did. That conclusion in my view is reinforced by the further material available. I have considered Mr Yeo's detailed submissions upon the material supplied on Article 147, but it appears to me that the Government of Albania in this case have established the existence of legal protection for a returning person, such as satisfies the provisions of section 85(5) of the Extradition Act 2003.
54. Accordingly, I would dismiss this appeal.
55. MRS JUSTICE RAFFERTY: I agree.
56. MR YEO: My Lord, the lawyer's name that your Lordship referred to is Sanxhaku. It appears on the original. It is S-A-N-X-H-A-K-U.
57. LORD JUSTICE PILL: Thank you very much. Are there any applications?
58. MR YEO: Mr Bogdani is publicly funded. Would you Lordships order an assessment of those costs?
59. LORD JUSTICE PILL: You have that direction, yes.
60. MR YEO: I am grateful.
61. LORD JUSTICE PILL: Any application on your side?
62. MR JONES: No, my Lord. Simply this. I made a short list of typographical errors, corrections.
63. LORD JUSTICE PILL: That would be helpful. Anything that Mr Yeo ought to know about?
64. MR JONES: No, it is all very minor matters.
65. LORD JUSTICE PILL: Thank you. So the appeal will be dismissed, with no order as to costs, save that the appellant will have a direction for assessment of his legally-aided costs.
66. Thank you.