England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 December 2010

1. LORD JUSTICE SULLIVAN: This is an appeal under Section 103 (1) of the Extradition Act 2003, ("the Act") against the decision of District Judge Evans on 26 October 2009 to send the appellant's case to the Secretary of State under Section 87 (3) of the Act. On 3 December 2009 the Secretary of State ordered the appellant's extradition to Albania.
2. In very brief summary, the background to the matter is this: after being acquitted on a number of occasions and having had those acquittals annulled in his absence, this appellant was eventually convicted in his absence on 20 June 2003 of an armed robbery which had occurred on 23 June 1996. He was sentenced to 10 years' imprisonment.
3. There are a number of grounds of appeal against the District Judge's decision. For present purposes it is necessary to mention only one of those grounds. The District Judge earlier concluded that the minimum requirements for a fair trial as specified in Section 85 (8) were satisfied because the appellant would be entitled to a retrial if he was returned to Albania.
4. In so concluding in paragraph 31 of his judgment the District Judge said that he was bound to follow the decision in Armand Bogdani v Albanian Government [2008] EWHC 2065 (Admin).
5. The District Judge said that that case had reviewed the earlier decisions and had resolved an important question: "On the basis of material" then available, Bogdani had effectively reversed the Divisional Court's earlier decision in Government of Albania v Bleta [2005] EWHC 475 (Admin), in which the court had said that on the evidence then produced it could not be satisfied that the respondent would be entitled to a retrial. The court in Bleta had said that there were, "Too many loose ends".
6. Further information was provided to the court in Bogdani which persuaded it to revise that conclusion and to reach the conclusion that, in effect, the loose ends had been tied up.
7. When the present case last came before the Divisional Court on 22 July 2010 (Stanley-Burnton LJ and Nicol J) there was an application on behalf of the appellant to admit further expert evidence of a Mr Gorgji, an Albanian lawyer. Mr Gorgji's evidence by reference to a number of cases was that the appellant would not be entitled to a retrial. Mr Gorgji's evidence was not before the District Judge.
8. The court adjourned the matter, saying that it wanted an explanation as to why Mr Gorgji's evidence was not produced earlier. It also observed that there was some lack of clarity in the statement as to various matters. The opportunity was afforded to the appellant to put in a final version of Mr Gorgji's evidence.
9. According to the notes of Mr Jones who appears on behalf of the Republic of Albania, Nicol J asked for a reply from Albania regarding the practical application of article 147 of the Albanian Criminal Code in Albania. That reply was to be given within 28 days of any additional report submitted on behalf of the appellant.
10. In the light of the explanations provided on behalf of the appellant, the respondent now accepts that the fresh evidence produced on behalf of the appellant is admissible. Further evidence has also been produced in the shape of a decision of the Constitutional Court in Albania. To some extent that decision appears to be inconsistent with Mr Gorgji's evidence.
11. However, of greater significance is the fact that somewhat belatedly, the Albanian Government responded to Mr Gorgji's evidence and also sought to answer Nicol J's question. It did so on 19 October 2010.
12. I fully appreciate that there are often difficulties of interpretation in extradition cases of this kind, 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.
13. The response makes it clear, Mr Jones accepts, that the expert evidence of Mr Gorgji, to the effect that the three individuals mentioned in his report did not have an automatic right to play for a retrial, was correct. Mr Jones submits that that appears to have arisen because of the particular circumstances in their cases, namely that appeals were made on their behalf to the Court of Appeal and later to the High Court. Those appeals were dismissed. It would appear that even though those appeals were made in their absence, that factor was sufficient to disentitle them to a retrial as of right. They had the power to ask for a review but the court apparently has a discretion as to whether or not to allow a review.
14. Perhaps of more significance is the response to Nicol J's question. I think rather than attempt to paraphrase that response I can do no better than simply read it out verbatim:

"The institute of the reinstatement in time limit that is regulated by Article 147 of the Code of Criminal Procedure provides opportunities to the parties of the criminal process due to justified grounds entitled by law, to be entitled to appeal against a decision in a case they have not managed to appeal and such opportunity as derived from legal grounds as the case where the defendant is tried in absentia and could not lodge an appeal. Hence the Albanian procedural legislation offers to the part of the opportunity through the reinstatement and time limit to lodge an appeal when he proves that he/she did not have such an opportunity to lodge one.

"However the reinstatement in time limit of the right of appeal and the review of the final criminal decision may be made only after the court has deemed that the legal grounds provided by the respective division of the Criminal Code of Procedure are met as noted above where cases when the court is established, the reinstatement in time limit of the right of appeal and there are other cases when it has not accepted such a request. Additionally the same is true for the right of retrial or the review of the final criminal decision.

"As regard the citizen Astrid Buller we would ask your consideration of his guarantee/right in terms of the retrial and reinstatement of the time limit of the appeal against the final criminal decision rendered against him."

15. In the light of that response, Mr Jones very fairly says that it does not make the position unequivocally clear as to whether this defendant has the right to a retrial on return to Albania. He submits that it is clear from one of the cases referred to by Mr Gorgji, the Metro case, that in certain circumstances a person tried in his absence in Albania and then extradited is not afforded a retrial.
16. He further submits that whether or not that person is granted a retrial appears to depend on, and he accepts that whether these factors are looked at individually or in combination is not clear; firstly representation at trial, that is to say whether it is by a court appointed lawyer, a family appointed lawyer or a lawyer specifically appointed by the defendant. He submits that the constitutional court decision appears to permit trial in absence only where the lawyer is specifically appointed by the defendant. The second factor is whether the conviction has been appealed from the Court of Appeal to the High Court, that is to say whether the case has passed through all three levels of the Albanian court system.
17. He submits that it is not entirely clear to what extent, those two factors are relevant to reinstating the time limit under article 147.
18. Pausing there, I acknowledge that Mr Jones's interpretation of the relevant decisions may be the correct one, but I remind myself of the proper standard of proof of cases such as this. Can I be sure that it is the correct explanation? I am bound to say that I am unable to be sure on the present material before me that that is the explanation.
19. In any event, Mr Jones rightly accepts that the position regarding the right to a retrial of a person tried in his absence and then extradited to Albania appears, as he puts it diplomatically, to be somewhat more 'nuanced' than was previously assumed on the basis of the material that was before the Divisional Court in Bogdani.
20. So far as this particular appellant is concerned, it seems that he was represented by a court appointed lawyer at various stages of the processes in his absence. At the same time, however, it also appears that in his absence the matter proceeded from the Court of Appeal in Albania to the High Court. Thus, it is unclear on this material whether or not he is one of those who would have been entitled to a retrial or who would be barred for one or other of those reasons, namely that an appeal had been made in his absence, and/or that the matter had been taken to the High Court.
21. It is also to be noted as Mr Jones accepts that the response dated 19 October 2010 from the Albanian Government does not unequivocally state that the appellant will be granted a retrial on return to Albania. I have already read out the final sentence of the relevant paragraph. That paragraph also makes it plain in terms that:

"There are cases where the court has established the reinstatement of time limit of the right of appeal and there are other cases when it has not accepted such a request".

22. Thus on the material presently before this court it is quite impossible to be sure that the appellant will be entitled to a retrial. Although Mr Jones submits that the lack of clarity arises only if there has been an appeal against the adverse decision in the absence of the appellant and/or if that appeal has proceeded from the Court of Appeal up to the High Court, I am bound to say that on the material presently before me I could not be confident that those were the only qualifications. It seems to me that on the material presently available the position has reverted to that which the court found to be the case in the Bleta decision: that is to say there are simply too many loose ends.
23. In making that observation I note that while I can well appreciate the practical difficulties of this decision will cause for the Government of Albania in seeking to extradite its citizens who have been accused of crimes, it is only fair to note that the deficiencies of the October statement have been identified to the Albanian authorities for some time now, not least after a hearing before the President of the Queen's Bench Division, Sir Anthony May, on 21 October 2010.
24. Notwithstanding the concerns then expressed, the Albanian Government has not thought it appropriate to provide any further explanation. Thus we are left, as I say, with too many loose ends.
25. For the sake of completeness I should mention that Mr Jones, in paragraph 32 of his note on his further evidence, invited the court to consider the fact Albania was part of the ECHR, and that so far as one can rely on the constitutional court decision, the ECHR has pre-eminent status in Albanian law. Of themselves, those facts are not a sufficient guarantee the appellant will receive a retrial on returning to Albania. The mere in fact that Albania is party to the ECHR is not sufficient to enable this court to be sure that this particular appellant will be granted, as a matter of right, a retrial in respect of a matter of which he was convicted in his absence.
26. For those reasons, this appeal must be allowed.
27. What was the date of when the matter came before Sir Anthony May?
28. MR JONES: 21 October 2010.
29. LORD JUSTICE SULLIVAN: For those preparing the transcript could you please add the date in? Was Sir Anthony May sitting alone or with somebody else?
30. MR JONES: My Lord, alone.
31. LORD JUSTICE SULLIVAN: He was sitting alone.
32. (To the shorthand writer) Could you just add in, "On 21 October 2010", please? Thank you very much.
33. Any other consequential applications?
34. MR JONES: My Lord, no.
35. LORD JUSTICE SULLIVAN: No?
36. Thank you both very much indeed. Mr Jones, this is no disrespect to Mr Menon, but thank you very much indeed, if I may so you have upheld the highest traditions of the bar.
37. MR JONES: Thank you, my Lord.