QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE GLOSTER, DBE
| Ilirian Zeqaj
|- and -
|Government of Albania
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Toby Cadman Esq (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 29th January 2013
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Mrs Justice Gloster:
"… the law and practice in Albania is now such that there is no real risk that Mr. Mucelli will suffer a flagrant denial of justice on his return to Albania. He is entitled to a retrial of the merits of the case against him."
"12. Notwithstanding the timing of this defendant's arrival in the United Kingdom some 5 months after the murders and his false identity I cannot find that he deliberately absented himself from the trial. I am satisfied following the reasoning of Cranston J in Mucelli that he will be entitled to a trial. I do not accept that Elira Kokona's concern expressed at page 19 of her report and references to, '… any clear possibility and absolutely no certainty that the proceedings which led to his conviction … will be re-examined by the Albanian authorities at least in the near future' bring this submission into the realms of Bohm and Romania . This authority is based on the finding that, 'the right to a retrial is not in fact automatic but rests in the discretion of the Romania Court'.
13. I now turn to the Article 6 submissions. The defence argue that the failure to provide a retrial or a review amounting to a retrial amounts itself to a flagrant denial of justice in breach of Article 6. The authorities of Soering  and Sejdovic  are quoted.
14. Again, this was fully argued in Mucelli. I quote paragraph 55 of that judgment 'the law and practice in Albania is now such that there is no real risk that Mr. Mucelli will suffer a flagrant denial of justice'."
"The District Judge erred in concluding that he is entitled to a retrial in Albania (within the meaning of section 85 of the 2003 Act). There was insufficient evidence upon which to reach such a conclusion."
The Appellant's submissions
Discussion and determination
"… whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial."
However I point out that such a decision is necessarily based on the premise, or hypothesis, that, as found by the judge, there has been no deliberate non-attendance at trial. It does not seem to me that, under the subsection, the judge is required to conclude (before ordering extradition) that, even if the requesting Court were to reach a different conclusion on that factual issue, it would have to afford an automatic right of retrial to the person subject to the extradition request.
"Re: On extradition from the United Kingdom to Albania of the Albanian national Ilirian Zeqaj…
In reply to your request for additional information… the Ministry of Justice of the Republic of Albania informs as follows:
(a) the defendant is sentenced in his absentia [sic];
(b) the defendant has escaped, therefore the District Prosecutor's Office of Fier, by Decision dated 11.06.2000, declares the non-localization of the defendant, proving that the subject in question has not been informed of any stages of the criminal proceeding;
(c) According to the Albanian legislation, the defendant was assigned the lawyer Nikollaq Helmi to represent him during the criminal proceedings in his absentia [sic];
(d) The defendant is considered a fugitive by justice, by virtue of the above cited decision of the District Prosecutor's Office of Fier;
(e) Upon his return, pursuant to the Albanian legislation, the defendant shall be entitled to a full retrial. This is not an automatic right but is exercised on the basis of procedures provided for in the Criminal Procedure Code.
You may find the legal procedures related to the sentence in absentia and the right to retrial or re-hearing, in the attached guarantees of the Albanian state." (Emphasis added.)
"In reference to the extradition case from the United Kingdom to Albania of the Albanian national Ilirian Zeqaj and in reply to your request, the Ministry of Justice provides the following guarantees:
When decision is rendered in absentia the criminal shall enjoy the effective right to a retrial from application of article 450 of the Criminal Procedure Code of the Republic of Albania, because this provision is interpreted in the High Court Decision No. 812, dated 17 September 2010. This article has now generated a consolidated jurisprudence in the judicial and legal-doctrinal tradition of the Republic of Albania.
The Supreme Court Decision No. 812 dated 17 September 2010 is referred on all the lower courts of Albania and shall apply with exactly the same effect in all cases of citizens subject to extradition, for whom the Ministry of Justice has granted the guarantees concerning the right to retrial because of their trial in absentia.
As can be noted by the Supreme Court, Article 450 does not at first sight provide for a retrial in circumstances where a person returns to Albania following extradition. However, given the obligations owed by Albania under international law and related Albanian domestic law, the Supreme Court has now ruled that in relevant extradition cases, i.e. where 'guarantees for retrial' has been granted by the Albanian Ministry of Justice, then Article 450 must be read as guaranteeing an extradited individual the right to a retrial.
Therefore, pursuant to Article 147(2) of the Albania Criminal Procedure Code, if the citizen Ilirian ZEQAJ were extradited he would be entitled to make a request 'to reinstate the time limit'. This request must be made within 10 days of his arrival in Albania.
Upon his arrival in Tirana, Albania, the citizen Ilirian ZEQAJ will be given a copy of (i) the minutes of the judgment against him which was rendered in absentia;; (ii) the prosecutor's order of execution of the judgment; and (iii) a cover document/ record for him to sign.
Once the citizen Ilirian ZEQAJ signs the cover document/ record, he is regarded under Albanian law as having received 'effective notification' of the decision which was rendered against him in absentia. As such, the 10-day period in which he may apply 'to reinstate the time limit' begins to run.
This approach to Article 147(2) of the Code of Criminal Procedure in the extradition context is the settled jurisprudence of the Albanian courts. It is reflected in a number of consolidated decisions of the Albanian courts.
Having lodged an application to reinstate the time limit under Article 147, a defendant is then afforded a re-trial which would amount to a rehearing of the case against him by virtue of Article 148. He would be afforded representation and be able to examine witnesses as at the original trial."
The document also set out a summary of the decision of the Albanian Constitutional Court in ES, one of the cases considered by the court in Mucelli.
i) It was not suggested in argument by Mr. Cooper, on behalf of the Appellant, that the Albanian Court would be bound by the District Judge's finding that the Appellant did not deliberately absent himself from his trial. Nor was it argued that any condition precedent to the exercise of his right of appeal in Albania, which required the Appellant to demonstrate that he had not deliberately so absented himself, would amount, in the circumstances of the District Judge's finding, to a contravention of his Convention rights or would preclude the demonstration of an "entitlement" for the purposes of subsection 85(5), on the basis of the hypothesis there set out, namely the District Judge's finding. In the present case this Court must assume that it is extremely unlikely that the Respondent would seek to take such a point, given its statement quoted above that the Appellant "has not been informed of any stages of the criminal proceedings".
ii) There is nothing in the evidence relating to the further proceedings in Albania in relation to Mr. Mucelli that suggests his Convention rights have been infringed in his subsequent appeal proceedings in Albania. On the contrary, the evidence shows that on 24 October 2012, the Court of Appeal, Tirana, having concluded that Mr. Mucelli had not been appropriately notified of the criminal proceedings against him, decided to overrule the previous verdict against him and to send the case back to the Judicial District Court of Tirana for retrial by a different judgment panel. Mrs. Kokona's comments that a retrial has not yet started (in my judgment, not necessarily surprising given the date of the appeal decision) and that the website of the Court of Appeal inaccurately reported the result, have no bearing on the matter.
iii) Similarly, there is nothing in the evidence relating to the further proceedings in Albania in relation to Mr. Hoxha (one of the conjoined appellants in Mucelli) that demonstrates that his Convention rights have been abused as a consequence of his extradition to Albania. The evidence shows that he was apparently extradited on 8 March 2012 and presented an application pursuant to Article 450 of the Code of Criminal Procedure and Article 6 of the Convention, which was registered by the Albanian Supreme Court on 10 May 2012. The fact that his case is, according to Mrs. Kokona, still pending before the Supreme Court, may, arguably, be regrettable in terms of delay, but does not, in my judgment, amount to such an abuse of his Convention rights as to demonstrate that he has no effective "entitlement" to a retrial for the purposes of section 85(5) of the 2003 Act.
iv) The evidence relating to Mr. Gjoka (another of the conjoined appellants in Mucelli) likewise does not demonstrate any absence of "entitlement" of a right to a retrial or that Albanian procedures in relation to retrial are unclear or purely discretionary. In that case, according to Mrs. Kokona's evidence, Mr. Gjoka applied to the Albanian Constitutional Court to find the "unlawfulness of the judgments which led to his conviction and quash them accordingly", pursuant to article 42 of the Albanian Constitution. On 12 July 2012 the Constitutional Court dismissed the request as ill-founded, on the basis that Mr. Gjoka had failed to prove that he had not been on notice of the criminal proceedings against him and therefore did not have the entitlement to a retrial. Mr. Cooper submitted that the fact that Mr. Gjoka had apparently been required to demonstrate in Albania that he had not deliberately absented himself from trial, was contrary to what appeared to be guarantees which had been given by the Respondent in relation to Mr. Gjoka, and/or the Respondent's acceptance that he had not deliberately absented himself from trial, as set out in paragraphs 10 and 11 of this Court's judgment in Mucelli. In my judgment, in circumstances where this Court does not have available to it the terms of the guarantee given by the Respondent in that case, or knowledge as to whether the concession referred to in paragraph 11 was simply given for the purposes of the UK proceedings, and where it was clear from the reasoning of the Albanian Constitutional Court that it concluded that Mr. Gjoka was indeed aware of the criminal proceedings and voluntarily chose not to attend them, I cannot conclude that the requirement that Mr. Gjoka had to demonstrate that he had not deliberately absented himself from trial, in any way deprived him of his Convention rights.
v) Likewise the fact that Mrs. Kokona refers to the cases of Cakollari and Vatoci, about which she says that there is no information concerning their appeals or retrials, cannot take the matter any further. Similarly the limited information provided by Mrs. Kokona in relation to the case of Murtati does not establish to my satisfaction that there is any real risk that the Appellant will suffer any denial of justice on his return to Albania.
vi) As Mr. Toby Cadman, counsel for the Respondent, submitted, and as this Court held, in Nastase v Office of the State Prosecutor, Trento, Italy  EWHC 3671 (Admin), the mere fact that a person's entitlement to a retrial is restricted if the requesting Court is satisfied on the evidence that he knew of proceedings and voluntarily renounced his right to appear or to file an appeal, does not prevent compliance with a person's Article 6 rights. The existence of procedural steps, which an extradited person is required to satisfy before being afforded a right of retrial (i.e. demonstrating that he did not voluntarily absent from trial and filing notice of appeal within the stipulated time), does not remove the entitlement to a retrial for the purposes of section 85(5); see Nastase at paragraph 45.
Lord Justice Gross: