England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
(ON APPEAL FROM WESTMINSTER
MAGISTRATES COURT
(DISTRICT JUDGE GRANT)

		Royal Courts of Justice trand, London, WC2A 2LL
		07/08/2014

LORD JUSTICE LAWS :

1. This is the judgment of the court to which we have both contributed.
2. There are two appeals before the court. The appellant in one, Sadushi, has died and it is accepted that his appeal should be formally be dismissed. We will make that order.
3. Bardoshi's appeal is brought under s.103 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Grant in the Westminster Magistrates Court on 1 March 2013, to send the appellant's case to the Secretary of State for her to decide whether he should be extradited to his native Albania. The Secretary of State ordered his extradition on 28 April 2013.
4. On 8 March 2000, at the Durres District Court in Albania, the appellant was convicted of premeditated murder and possession of firearms. His conviction was upheld by the Appellate Court of Durres on 17 May 2000, and by the Albanian High Court on 20 November 2000. He was originally sentenced to 16 years in imprisonment, but that was increased to 18 years. All the Albanian proceedings were conducted in the absence of the appellant who was represented by a court-appointed lawyer. The prosecution case was that together with a co-accused he had murdered a man in a public bar, following a dispute about the victim's girlfriend. The crime took place in 1997.
5. Extradition between the United Kingdom and Albania is governed by Part 2 of the 2003 Act and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. The Order designates Albania, for the purposes of ss.71(4), 73(5), 84(7) and 86(7) of the Act, as a territory which does not have to furnish evidence of a prima facie case.
6. The appellant entered this country illegally. Following an extradition request from Albania a warrant was issued and the appellant was arrested at his home address in the United Kingdom on 24 September 2012 and remanded in custody. At length he was brought before District Judge Grant at the Westminster Magistrates Court for the extradition hearing, as required by the 2003 Act. The proceedings occupied one day on 21 February 2013. The judge heard oral evidence from the appellant, his partner Ms Almegro and an expert called on his behalf, Antonia Young. She was an anthropologist with particular knowledge of northern Albania.
7. The District Judge found that the documentary formalities required by the statute were all in order. He proceeded to deal with issues raised by the appellant under the Human Rights Convention: Article 2 (danger of death because of what was said to be the Albanian tradition or practice of blood feud); Article 3 (prison conditions); Article 6 (judicial corruption); and Article 8 (the appellant and his partner have a young son aged 19 months at the time of the hearing in the magistrates court). The question of a retrial was raised under section 85 of the Act, and there was also an argument concerning the passage of time since the crime and/or the Albanian proceedings. The District Judge rejected all of the appellant's submissions and, as we have said, sent the case to the Secretary of State, who ordered the appellant's extradition.
8. The grounds of appeal to this court baldly assert that the District Judge was wrong in relation to ECHR Articles 2, 3, 6 and 8. However the major thrust and emphasis of the appeal has been directed to two issues: judicial corruption in Albania, and whether, if returned, the appellant would clearly be entitled to a re-trial.

JUDICIAL CORRUPTION

9. Upon the issue of judicial corruption a principal feature of these proceedings arises from the fact that another extradition case, bearing important similarities to the present, has been proceeding in the Scottish jurisdiction. In Kapri v Lord Advocate [2013] UKSC 48 the Supreme Court had to consider an appeal from the High Court of Justiciary Appeal Court. The appellant in that case had been convicted, in an Albanian Court and in his absence, of the premeditated murder of a fellow Albanian and sentenced to 22 years imprisonment. In fact the murder was alleged to have taken place in London, but it seems that the Albanian Court has extra-territorial jurisdiction. The appellant was arrested in Glasgow. Extradition proceedings followed. The Scottish Ministers ordered extradition after a hearing in the Sheriff's Court. The appellant appealed to the High Court of Justiciary. A new point was raised before that court, to the effect that the judicial system in Albania was "systemically corrupt" (Lord Hope in the Supreme Court, paragraph 7). However evidence in support of this submission was excluded in the High Court as being of a wholly general nature. At a later hearing it was observed that that ruling effectively excluded the ground of appeal relating to judicial corruption. The appellant obtained leave to appeal the corruption issue to the Supreme Court; the Supreme Court allowed the appeal and sent the case back to the High Court of Justiciary for further consideration, with up to date information, in relation to the judicial corruption issue.

Kapri [2013] HCJAC 33

10. That issue was then considered substantively and in very great detail by the High Court of Justiciary Appeal Court: [2013] HCJAC 33. A major question in this appeal is the extent to which this court should follow the Scottish court's findings. It will be necessary to cite substantial passages from the judgment of that court delivered by Lord Carloway, the Lord Justice Clerk, who was sitting with Lady Dorrian and Lord Bracadale. The judgment of the court was delivered on 25 April 2014.
11. At the new hearing before the High Court of Justiciary, directed by the Supreme Court, the evidence on judicial corruption earlier sought to be relied on, but excluded as wholly general in nature, was neither led nor referred to. Instead some 60 reports about Albania from a variety of sources were put in. In particular reliance was placed on the evidence of a Dr Fabian Zhilla. Dr Zhilla has a PhD from Kings College London awarded in 2012 for his thesis (we summarise) on judicial corruption in Albania. He holds academic posts in Tirana. His report of 5 March 2014, though not his PhD thesis, was before the High Court of Justiciary. He also gave oral evidence, as did Ms Marsida Xhaferllari on behalf of the Republic of Albania. She was the Head of the High Council of Justice Judicial Inspectorate, and had herself served eight years as a judge. The Inspectorate's functions include the examination of complaints about the conduct of judges made by members of the public. It authorises disciplinary proceedings against judges, proposed by the Minister of Justice. It produces data for the evaluation of judges' performance.
12. The High Court of Justiciary described the evidence of Dr Zhilla (paragraphs 14–51) and Ms Xhaferllari (52-88) in very great detail. They then recorded the submissions of the parties. The Court's conclusions appear at paragraph 111 onwards. Reference was made to the test to be applied to an Article 6 complaint where in an extradition case the breach of rights concerned would, or would allegedly, take place in the requesting State on the subject's return there. The test is whether there exists a real risk that the requested person would suffer a flagrant breach of the right to a fair trial: Othman v UK [2012] 55 EHRR 1 at paragraphs 258-262. At paragraph 119 the High Court of Justiciary cited paragraph 260 of the Strasbourg judgment:

"260 It is noteworthy that, in the 22 years since the Soering judgment, the Court has never found that an expulsion would be a violation of art. 6. This fact, when taken with the examples… serves to underline the Court's view that 'flagrant denial of justice' is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of art. 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by art. 6 which is fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article…"

13. The court referred also to the statement (per Lord Brown in Gomes v Trinidad and Tobago [2009] 1 WLR 1038 at paragraph 35) that Council of Europe countries (which include Albania) "should readily be assumed capable of protecting an accused against an unjust trial…" Then at paragraph 122 the High Court of Justiciary referred to two Strasbourg decisions, Dzhaksybergenov v Ukraine (Application No 12343/10) and Yefimova v Russia (2013) 57 EHRR 22. The court noted that in the former case the Strasbourg court had said: "reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition…" In the latter case it was stated at paragraph 153 that it was only in the most extreme cases, where the general situation was such that any removal to the particular country would necessarily violate a Convention right, that the court should proceed purely on the basis of generality. The High Court of Justiciary at paragraph 122 also referred (albeit only in parenthesis) to Dzhurayev v Russia (2013) 57 EHRR 22 at paragraph 153.
14. The court's substantive conclusions on the merits of the case as regards judicial corruption appear at paragraphs 132 ff. I will cite these passages:

"132... At best for the appellant, there may have been undue influence of one sort or another in criminal cases involving a single judge on matters of procedure. It may be more frequent than this, but there is simply no adequate material upon which it could be held that there are substantial grounds for believing that it exists at such a level as will necessarily involve a flagrant denial of justice in all, or even most, cases. Quite the contrary, most of the material in the reports spoken to is of a very general nature and often simply repetitive of earlier reports by the same or a similar organisation. The court is entirely satisfied therefore that there has been no evidence presented to it, and certainly no cogent or compelling evidence, that there are substantial grounds for believing that the level of corruption in the Albanian judicial system is at the "systemic" level such that it falls into that "extreme" category whereby the removal of anyone to that country would necessarily result in a violation of a Convention right. As will be seen, it is equally satisfied that there are no substantial grounds for believing that there is a risk of the appellant, in particular, being the subject of an unfair trial should he be extradited to Albania.

133 The court was generally impressed by the frankness of Dr Zhilla's testimony, which was given in a reasonable, measured and balanced fashion. The problem which the court had, in considering certain of his views on the central issue of systemic corruption, was that he was not, and never had been, a practising lawyer or judge in the Albanian criminal justice system. He was also not familiar with the particular situation in Elbasan. Dr Zhilla is not, of course, to blame for this, nor are the appellant's legal representatives. They attempted to obtain first-hand information from Albanian lawyers working in that system, but, for whatever reason, they were not successful in securing direct testimony to support the appellant's position. That is important.

134 Dr Zhilla based his view on the extent of corruption in the Albanian judiciary not so much upon the many surveys, which he was referred to, but upon a series of interviews; almost all of which formed the basis of his doctoral thesis. The problem with that is that the assessment of the weight to be attached to his view can only properly be made upon an examination of the facts explored in these interviews and scrutiny of the analysis of the material ingathered. Whilst not suggesting that it was necessary, or even desirable, for the thesis itself to be lodged formally as a production, it is somewhat surprising that the fundamental source of Dr Zhilla's view was not available in some form to enable it to be the subject of proper judicial scrutiny. The court did have Dr Zhilla's interesting article 'Organised crime and judicial corruption in the western Balkans' (2011) 18 Journal of Financial Crime 387, which offers a fascinating backdrop to Balkan problems…

137 The court was also impressed by the openness of the evidence of Ms Xhaferllari. Where she had the advantage over Dr Zhilla was in her personal experience as a judge and as an inspector of judges in the Albanian criminal, and wider, justice system. The court readily acknowledges that Dr Zhilla could be regarded as potentially more independent that Ms Xhaferllari, given her official role in supervising the judges' inspectorate within the HCJ system. She might be expected to be partial to the interests of the Albanian state, standing her position. The court noted, in this context, that when she was asked specifically about the actual level of corruption within the judiciary, she became more defensive and guarded in her answers than when answering questions about, for example, the functioning of the inspectorate or the content of governmental or NGO reports and papers. Nevertheless, the court concluded that, notwithstanding occasional reticence, Ms Xhaferllari was answering the questions as honestly and openly as was reasonably possible in the circumstances. She was, throughout her testimony, manifestly on top of the subject matter, notably the general situation of the judiciary in Albania and the facts of the appellant's case in particular. Not only did Ms Xhaferllari have an in depth knowledge of the workings of the judiciary, stemming from her own work as a judge and from her subsequent appointments with the MoJ and then the HCJ, she had a sound familiarity with the position in Elbasan. She was aware of the working conditions there, the extent of its infrastructural problems and not only the ratings of the individual judges' evaluations but also the practical consequences of these results.

138. Having carried out the comparison of the testimony of the two principal witnesses, and observed them giving evidence (which both did in almost flawless English), the court has reached the view that, on the essential but limited matters over which the witnesses differed, notably the actual level of corruption in Albania, the evidence of Ms Xhaferllari is to be preferred. The effect of this, as a generality, is that the court does not accept Dr Zhilla's evidence that the level of corruption in the judiciary of Albania is endemic, nor that it is a permanent, socially acceptable phenomenon. It does accept, as already noted, that the level of perception of corruption in the judiciary amongst the general public is high, as it is in a number of organs of government. It accepts too that a limited number of judges suspect that their colleagues are corrupt in one form or another. It accepts that there has been a history of corruption in a variety of state, or former state, enterprises perhaps stemming from the communist era. However, as Ms Xhaferllari pointed out, if it was a permanent socially acceptable phenomenon, there would hardly be the considerable public outcry about the existence of corruption as there evidently is; nor would there be the repeated political condemnation of corruption as a practice or the substantial media coverage given to allegations of its periodical occurrence, especially within the justice system (eg Puka)…

141 Whilst not dwelling on the details of the many reports, what can be said is that progress of a substantial nature has been made over the last decade. It has not been as rapid or as effective as it might be and, no doubt, there is much work to be done. This has been made clear by the Commissioner following his September visit (supra). Overall, the court agrees with the general optimistic tenor of Ms Xhaferllari's evidence on the progress which had been made and on the continued endeavours of many in Albania to improve the justice system and to eliminate the risk of corruption occurring, where possible. At the risk of repetition, the fundamental conclusion of the court remains that, although there may well be elements of corruption in the Albanian judicial system (as there may be in those of other signatories to the Convention), there is no proper evidential basis for the conclusion that it is at a systematic or systemic level such that there are substantial grounds for believing that any person being extradited to Albania would risk suffering a flagrant denial of his right to a fair trial. There is, on the other hand, cogent and compelling evidence, which the court accepts, that this particular appellant will obtain a fair trial upon his return to Albania.

142 The court has no difficulty in concluding on the evidence that the appellant will receive a Convention compliant fair trial upon extradition to Albania. In particular, the court heard no evidence whatsoever that an ordinary murder trial, or indeed an ordinary criminal trial of any serious offence, would be affected by judicial corruption. If corruption exists to a substantial degree in the criminal justice system, it is relative to the prosecutions of influential political figures, organised criminal or their respective friends or families. Even then, the court heard no evidence of any instance in which it was thought that an innocent man had been convicted of any criminal offence, far less one which was sufficiently serious to merit the attention of a bench of three, because of his failure to pay a bribe or adopt some other corrupt practice. In particular, it heard no evidence, or even a suggestion from the witnesses, that, as Lord Hope put it (para 28): 'Unjust convictions may result, just to keep the system going and keep prices up.' The court was unable to locate any material upon which this statement might have been based."

15. Having laid out these general conclusions, the court turned to the particular circumstances of the appellant's case. Because the appellant in the present case faces a like charge of premeditated murder, many of the essential features emphasised by the High Court of Justiciary apply to him also. The court said:

"143 The appellant's re-trial will involve consideration of the evidence by three judges in accordance with a code of evidence and procedure which is subject to the over-arching principle of a fair trial, as enshrined in Article 6. The appellant will be tried by a bench of three. If he wishes to object to a particular judge, he could do so and this would be determined by another judge and the decision would be open to an appeal. The appellant is entitled to choose his own lawyer or, if he is unable to afford one, a lawyer will be appointed by the court and paid for by the state. Although there is a risk that a state appointed lawyer might not be quite as skilled as one paid for privately, he or she would still be competent, having been selected from a list approved by the local law faculty. The appellant will be provided with a copy of the evidence gathered by the prosecutor (in this case from the London Metropolitan Police) and given an opportunity to consider it and prepare his defence. He will be allowed to challenge the evidence against him and to lead evidence from witnesses in his favour. The proceedings in Elbasan, although not taking place in the most salubrious of Albanian courts, will be in public and recorded electronically. In the event of a conviction, the appellant would be entitled to a reasoned decision, which he could appeal to a higher court, perhaps even the Constitutional Court, which has shown itself able to listen to, and sometimes to sustain, appeals based upon the Article 6 fair trial requirement. He could complain about any improper behaviour by a judge to either the MoJ or the HCJ and be assured that his complaint would be investigated. Ultimately, he could take his case to the European Court and seek redress there, if any violation of his article 6 rights were demonstrable. Even if the appellant's case had not become the subject of particular media and state attention, these protections would exist and, even if they may not operate at all times as efficiently as they might, there is simply no scope on the evidence for an argument that the appellant's trial might not be fair. In this connection, it is worth repeating that no-one suggested that the outcome of any ordinary criminal trial in Elbasan for a serious crime would be compromised by any form of corruption or that, if it were, such corruption would influence the judges in favour of a conviction.

144 In the appellant's particular case there would be careful scrutiny by the HCJ inspectorate and the media. The judges would be aware of this and will have seen the action taken in the Puka case. There would, therefore, be effectively no prospect of the appellant's trial being compromised when the spotlight of the inspectorate and the media was upon it."

16. And so the High Court of Justiciary Appeal Court dismissed Mr Kapri's appeal.
17. Counsel's skeleton argument for the appellant describes the contents of Dr Zhilla's PhD thesis and his report of March 2014 in great detail. Counsel also refers to, and criticises, Ms Xharferllari's evidence. Submissions are then made about the judgment of the High Court.

The Appellant's Criticisms of the High Court of Justiciary's Judgment

18. I will first describe the appellant's criticisms of the judgment. References in the judgment to Scottish practices and procedures are said to be inapposite and misleading (skeleton argument paragraph 86). There are strictures about the court's references to the effect of rumours of judicial corruption (skeleton paragraph 89). There are criticisms of the court's reservations about Dr Zhilla, and its approbation of Ms Xhaferllari (skeleton paragraphs 93-100). Counsel also criticises the High Court's approach to the law. The argument (skeleton paragraph 103) is that the court effectively watered down the test stated in Othman by referring, as it did in paragraph 102 of the judgment, to Lord Brown's dictum in Gomes that "Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial…"
19. The High Court's reference in paragraph 122 to the Strasbourg decision in Dzhurayev is also in counsel's sights (skeleton 109-110). It is said that the Lord Justice Clerk applied too high a test at paragraph 123, where he said that the Supreme Court "must be asking this court to consider whether the general circumstances in Albania are so extreme as would inevitably lead to a violation in the appellant's and any other person's case… However, conversely, presumably if it is positively demonstrated that a particular person will in fact receive a fair trial in Albania, the general situation in Albania cannot fall into the 'most extreme' category, since it would have been demonstrated that the extradition of a particular individual would not result in a violation".
20. The appellant next criticises the approach of the Scottish Court to the rules of evidence relating to the admissibility, or the proper probative effect, of reports such as the material produced by Dr Zhilla. In particular, attention is drawn to the High Court's observation in paragraph 127:

"…there is no general provision which allows the court to hold as proof of fact, merely by their production, the content of reports or other papers emanating from foreign governments, international governments or non-governmental bodies, or academic or research institutions."

The appellant refers to s.202 of the 2003 Act, but that is primarily concerned with documents issued in a Category 1 or Category 2 territory, and does not seem to me to advance the argument.

21. There follows (skeleton argument paragraphs 124ff) what seems to me to be a quibble about the court's discussion (judgment paragraph 131) of the adjectives "systemic" and "systematic".

The Impact of the High Court of Justiciary's Judgment upon these Proceedings

22. We turn now to consider what should be the impact of the High Court's judgment in Kapri upon these proceedings.
23. The High Court of Justiciary's decision is obviously not binding precedent in this court. It is a judgment in a separate jurisdiction. But that by no means closes off what seems to us an important question: how far should this court be influenced by its reasoning and conclusions, both as to the facts and the law? Most – though as we have shown not all – of counsel's criticisms go to the High Court's treatment of the facts of the case. We think it convenient first to consider the position relating to the law.
24. As we are dealing with a statute applying to the whole of the United Kingdom, the Extradition Act 2003, and the application of the ECHR, there can be no material difference between the substantive law applicable here and in Scotland. We think it plain that this court should regard the views of the High Court of Justiciary Appeal Court as to the relevant law as highly persuasive: it is a senior appellate court in a jurisdiction with very close ties to our own. Manifestly if the Scottish Court arrived at a decision inconsistent with the ratio of a judgment in the Court of Appeal, the House of Lords or the Supreme Court, it would be this court's duty to follow the binding decision of the higher court in this jurisdiction. Short of that situation, it seems to us that this court would need to show very clear reasons to depart from a judgment of the Scottish appeal court on a determinative point of law arising both there and here.
25. In this case there is no basis for departing from the Scottish Court's approach to the law. In our judgment there is no "watering down" of the Othman test in the High Court's reasoning. It is plain from paragraph 121 that the court was clear that the assumption in favour of Council of Europe states might be overturned by sufficiently compelling evidence. Nor is there anything in the criticism of the court's passing reference to Dzhurayev (an Article 3 case). The point being made at paragraph 122, with respect clearly rightly, is that purely general evidence of human rights failings will not ordinarily suffice to stop an extradition. The particular circumstances of the requested person have to be regarded. General evidence will only be enough if it is so strong – "in the most extreme cases" – as to lead to an inference of violation in any instance where the right is engaged: in an Article 6 case, a real risk of a flagrant denial of justice. As for the court's approach to the rules of evidence, manifestly the court in fact admitted, and had regard to, the testimony of Dr Zhilla, as well as that of Ms Xhaferllari, to whom extracts from reports and papers were put in the witness-box (see paragraph 128).
26. So much for the law. How should this court approach the Scottish court's conclusions on the facts? The issue as to judicial corruption was the same in that case as in this. Are we simply to make up our own minds, without regard to the High Court's considered views? Dr Zhilla and Ms Xhaferllari, whose written testimony is the principal evidence before us on the corruption issue, appeared as witnesses and were cross-examined. There was much other material besides, and as we have shown the court's treatment of the issue was, with respect, extremely thorough and meticulous.
27. In our judgment we should in these circumstances follow the conclusions of the High Court on the judicial corruption issue unless they are demonstrably wrong or substantially undermined by evidence not before that court. In determining the right approach we consider that some assistance is to be had from a comparison, which should not however be pressed too far, with the use and practice of Country Guidance cases in the Asylum and Immigration Chamber of the Upper Tribunal. Care is needed in deploying this comparison, not least because Country Guidance cases are the subject of specific provision in section 12 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal of the Senior President of Tribunals dated 10 February 2010, which provides:

"12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination based upon the evidence before the members of the Tribunal… As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-? (a) relates to the country guidance issue in question; and?? (b) depends upon the same or similar evidence."

There are, moreover, considerations which favour the practice of Country Guidance decisions in the asylum field which cannot simply be read across to the determination of extradition cases where (as here) they raise issues applying generally to the requesting State. Thus in SG (Iraq) [2012] EWCA Civ 940 Sir Stanley Burnton said at paragraph 45:

"There are simply not the resources for a detailed and reliable determination of conditions in foreign countries to be made on an individual basis on each decision on the application or appeal of persons seeking protection. There are far too many such cases…"

28. But in the same paragraph Sir Stanley also said:

"Even if the resources were available, it would be wasteful to have such an investigation, involving much the same evidence, in every case. There would also be a risk of inconsistent decisions, a consideration that is particularly important in the present context since it follows from a decision that one person requires protection, if correct, that a person in the same situation who has been returned may have risked or suffered ill treatment or worse."

That reasoning seems to us with respect to offer a helpful steer to the determination of this court's approach to the conclusions of the Scottish court. The question of judicial corruption is the same, and depends on evidence as to the overall state of affairs (in this context) in Albania. Consistency in decisions, and a proportionate deployment of the court's resources, promote the conclusion that in a case like this we should follow the earlier decision of the Scottish court on the judicial corruption issue unless it is demonstrably wrong or substantially undermined by evidence not before that court.

29. In our judgment there is no basis in this case upon which we could begin to conclude that the High Court's view of the testimony relating to judicial corruption is demonstrably wrong, and it has certainly not been undermined by other evidence. In particular it is not shown that the court's assessments of the evidence of Dr Zhilla and Ms Xhaferllari was in any way erroneous. The fact that Dr Zhilla's PhD thesis was not before the High Court is insignificant, given the comprehensive nature of his later report and his oral testimony. The narrow points taken at paragraphs 93 ff of Mr Khalil's skeleton argument for the appellant (in relation both to Dr Zhilla and Ms Xhaferllari) while no doubt perfectly proper as submissions so to speak from cold, have nothing like the substance required to persuade us – having heard no live evidence – to conclude that the Scottish court was wrong.
30. We have said that the High Court's view has not been undermined by other evidence, and that is so. We should mention one piece of new evidence: the fourth round evaluation report on "Corruption prevention in respect of parliament, judges and prosecutors" in Albania adopted by GRECO ("Group of States against Corruption" – a Council of Europe body) on 28 March 2014 and published on 27 June 2014, after the High Court's judgment in Kapri. Albania joined GRECO in 2001, and has been subject to evaluation in three previous rounds. The fourth round evaluation report is detailed and comprehensive. Measured and careful recommendations are made. The report confirms that the perception of corruption in the judiciary remains high (81% of respondents – paragraph 13). It refers to the "conspicuously poor working conditions and the lack of basic court infrastructure… Undoubtedly, these factors tarnish the image of the judiciary and contribute to the low public trust in it." (paragraph 80). But it acknowledges continuing efforts to ameliorate the position. We will cite just two paragraphs:

"65. In its previous pronouncements, GRECO has stressed that judicial independence and the impartiality of judges are fundamental principles in a State governed by the rule of law; they benefit society at large by protecting judicial decision-making from improper influence and are ultimately a guarantee of fair trial. GRECO notes that reform of the judiciary has been a strategic objective of Albania which featured prominently e.g. in the 2007-2013 National Strategy for Development and Integration. Between 2011 and 2013, pursuant to the Justice Reform Strategy and the accompanying action plan, several legislative acts came into force, including notably amendments to the Constitution which limited judicial immunity and the new laws on the High Court and the National Judicial Conference. Nevertheless, on the path to full independence and impartiality, further breakthroughs are yet to be achieved…"

"68. As the principle judicial self-governing body, the National Judicial Conference (NJC) plays a pivotal role by electing the nine judges to be HCJ members as well as the judges to be members of its "Ethics, mandate verification and continuous professional development committee". From the time of its establishment in 2000, however, the Conference's functioning has not been stable. Originally conceived as a structure for all judges (except for the Constitutional Court justices), membership was made only voluntary by amendments to law in 2004. These were challenged before the Constitutional Court and invalidated in 2009. Finally, in 2012 a new law was adopted, giving the NJC's work a fresh new impetus. The prolonged stalemate across that period – during which the Conference remained virtually non-operational – had negative consequences for the judiciary as a whole and, as the GET was told, more specifically, for the processes of selection, career progression, training and disciplinary proceedings against judges. Ownership and controls on judicial ethics have also been affected. The restoration of the Conference's original status, which increases its sense of ownership and its credibility, is, therefore, a welcome development capable of bringing a lasting and positive impact to the administration of justice in Albania."

31. In our judgment the GRECO fourth round evaluation report tends if anything to support the conclusions of the Scottish court at paragraphs 138 and 141 which we have set out.
32. So far as it relates to the issue of judicial corruption, this appeal will be dismissed.

RIGHT OF RE-TRIAL

33. We turn to the second major issue in the case: right of re-trial.
34. Extradition is barred where a requested person has been tried and convicted in absence and there is no right of re-trial in the requesting State. Section 85(5) of the 2003 Act requires the court to decide, where the appellant's absence from trial was not deliberate, whether he would, if extradited, be entitled to a re-trial or (on appeal) a review amounting to a re-trial. In this case the appellant insists that he was unaware of his trial, conviction and sentence for the murder and related firearms offences. He insists that he was living in Italy at that time, indeed, he was in Italy at the time of the commission of the offences. The appellant contends that he is not assured of a right of retrial on his return to Albania.

Previous Decisions of this Court

35. This is not the first time this court had considered the right of an extradited person to a re-trial on return to Albania where he has been convicted in his absence. In R (Mucelli) v Secretary of State for the Home Department [2012] EWHC Admin 95 this court considered the position of three persons whose extradition had been requested by the Albanian government, Vullnet Mucelli, Lulzim Hoxhaj and Marush Gjoka. There had been a series of previous decisions of this court in two of which the uncertainties surrounding the right of re-trial in Albania had led it to hold that extradition should not take place: Albania v Bleta [2005] EWHC 475, [2005] 1 WLR 3576; R (on the application of Dulla) v Secretary of State for the Home Department [2010] EWHC Admin 3506.
36. In Mucelli the court considered at some length the Albanian Constitution (Articles 17.2, 33, 43, 116, 122), Albania's ratification of the European Convention on Extradition and Additional Protocols, Albanian Law No 10193 of 3 December 2009, and the Albanian Code of Criminal Procedure (Articles 147.2, 148.1, 410 and 451). It also reviewed decisions of the Albanian Constitutional Court (Decision No 30, 17 June 2010, Spahaj ("ES"), the Albanian Supreme Court (Decision No 812, 17 September 2010, Mece, and Decision No 9, 19 January 2011, Bogdani), and decisions of the European Court of Human Rights from Albania. It had the expert opinion of Mrs Eliva Kokona dated 13 January 2012. On the basis of an examination of all those materials it concluded that Mucelli, Hoxhaj and Gjoka would have a right of re-trial or (on appeal) a review on return to Albania.
37. Within a short period the issue was before this court again, in Zeqaj v Government of Albania [2013] EWHC Admin 261, when Ilirian Zeqaj contended that the available evidence shed a different light on the Mucelli evidence. Before the court were two opinions from Mrs Kokona, one of which addressed factual developments regarding Mucelli, Hoxhaj and Gjoka after their return to Albania, the other the Albanian Constitutional Court decision following the extradition of the appellant in Murtati v Government of the Republic of Albania [2008] EWHC Admin 2856. Gloster J as she then was (with whom Gross LJ agreed) held that there was nothing in Mrs Kokona's opinions on the materials to which she referred which would lead her to depart from the conclusions in Mucelli, and the court dismissed the appeal. The fact that the appellant had to comply with certain procedural prerequisites, and in that sense the right to a re-trial was not automatic, did not affect the matter: paragraph 15. Gloster J referred to the evidence relating to Mucelli, Hoxhaj and Gjoka: the Court of Appeal in Tirana had sent Mucelli's case back for a retrial to the district court; Hoxhaj had made an application to the Supreme Court and although the delay in hearing it was regrettable there was no evidence of abuse of his rights; and although Gjoka's applications to the Albanian Constitutional Court had failed, its requirement to the effect that he had to demonstrate that he had not deliberately absented himself from trial had not in any way deprived him of his Convention rights: paragraph 16(ii)-(iv). As for Murtati, the limited information provided by Mrs Kokona did not establish that there was any real risk that the appellant would be denied justice on return to Albania:16(v).
38. Both Mucelli and Zeqaj were noted by the Supreme Court in Kapri [2012] UKSC 48, [2013] 1 WLR 2324, without comment.

The Albanian Letter

39. In a letter of 30 July 2012 the Albanian Ministry of Justice, in the name of the Albanian State, "guarantees… the exercise and observation of the right of re-trial" of the appellant. The guarantee refers first to Albania's ratification of the Second Additional Protocol of the European Convention on Extradition and its safeguard of the requested person having a right of re-trial. Under Articles 116 and 120 of the Albanian Constitution, and Article 10 of the Albanian Criminal Procedure Code, international ratified agreements form part of the domestic law and prevail over other domestic laws. Moreover, the letter explains, the European Convention on Human Rights, in particular Article 6, enjoys a privileged status because it is expressly cited in the text of the Constitution.
40. Secondly, the letter refers to Article 147.2 of the Albanian Criminal Procedure Code under which, if a defendant is convicted in absentia, he can request the "reinstatement of the time limit" (i.e. turn the clock back) so as to be able to appeal within time if he proves that he has not been notified of the decision. The request to reinstate the time limit has to be made within 10 days of the person receiving effective notice of the decision. The letter explains that under Albanian jurisprudence a person receives effective notice of the decision when he enters Albanian territory to surrender to the authorities and signs an acknowledgment that he has received it. Under Article 410 of the Criminal Procedure Code, unless a lawyer has a special power of attorney to appeal a decision in his absence, the person does not lose the right to reinstate the appeal if a lawyer appointed ex officio or by his relatives has purported to appeal on his behalf.
41. Thirdly, the letter states that according to provisions of the Criminal Procedure Code an appeal by a person convicted in absentia is deemed a new trial because under Article 425 the appellate court reviews the record in its entirety. Alternatively, under Article 427 a judicial re-examination may be requested and new evidence taken.
42. Fourthly, the letter identifies Article 51.4 of the Law No 10193 of 3 December 2009, "On the Jurisdictional relations with Foreign Authorities in Criminal Matters". This grants the right of someone tried in his absence and extradited to request the Supreme Court to review the conviction or sentence, with evidence being taken in conformity with the general rules of criminal procedure. The first instance court repeats the trial.
43. The letter refers in this regard to the "consolidated jurisprudence on the judicial and legal doctrinal tradition of the Republic of Albania". Decision No 812 dated 17 September 2010, FM [Mece] was based on Article 51.4 and emphasised the obligation to guarantee a person being extradited the right of re-trial deriving from Albania's ratification of the European Extradition Convention and its two additional protocols. The letter states that the Albanian Ministry of Justice believes that this decision is a correct interpretation of the law and will continue to be followed by lower instance courts. The letter adds that the Constitutional Court in decision No 30 of 17 June 2010 held that Article 33.2 of the Constitution upholds the legitimacy of a trial of a person in his absence provided that he has been informed of it and had knowingly waived his right to participate. The Constitutional Court decided that Article 147.2 of the Criminal Procedure Code must be interpreted in the same way.
44. Finally, the letter makes the point that Albania has a system of separation of powers as with Article 504.2 of the Criminal Procedure Code, and the Ministry of Justice cannot speak on behalf of the other arms of the State.

Mr Teta's Reports

45. The appellant's solicitors have obtained two expert reports from Periant Teta, who after preparing them obtained employment as a lawyer in the Supreme Court of Albania. The first report was dated 16 December 2013 and was before the District Judge. It was on the basis of the Albanian letter of 30 June 2012, and Mr Teta's first report, that the District Judge concluded that there was no cogent evidence to revisit the re-trial issue as considered by this court in Zeqaj [2013] EWHC Admin 261.
46. The respondent objects to the admission of Mr Teta's second report, dated 10 March 2014, in accordance with the well known decision in Szombathely City Court v Fenyvesi [2009] EWHC Admin 231. We agree. There is no explanation for the fact that Mr Teta's second report was not produced before the District Judge, in clear breach of what this court required in Krolik v Poland [2012] EWHC Admin 2537. It was not served on the respondent until 28 March 2014. In any event Mr Teta's second report adds nothing of substance to his first report, save for some elaboration of a point which arises from the appeal in Albania by the appellant's co-defendant. As we explain below, nothing turns on the co-defendant's appeal. As for the remainder of Mr Teta's second report, we deprecate attempts in this area to provide experts with the opportunity of a second bite of the cherry where there has been no substantial change in the law or practice. As we note below neither of Mr Teta's reports grapple with the analysis advanced by this court in Mucelli and Zeqaj.

The Appeal

47. The appellant's case before us turns on Mr Teta's reports. In his reports Mr Teta contends that despite what is set out in the Albanian letter of 30 June 2012 the appellant will not receive a right of re-trial in Albania. The reasoning of Mr Teta's first report begins with a consideration of Article 51.4 of Law No 10193 of 3 December 2009. Mr Teta draws attention to two features of the wording of the Article, that a person's final sentence may be reviewed and that the review is to be conducted in accordance with the Criminal Procedure Code. The word "may" does not establish a right to a re-trial, and Articles 450 and 453 limit what the court can do in reviewing a matter. Article 51.4 cannot prevail over the Criminal Procedure Code since law No 10193 of 3 December 2009 was enacted by a simple majority in Parliament, the Criminal Procedure Code by a two-thirds majority. (Mr Teta gives the same reason for discounting the European Convention on Extradition and its Protocols.) The Ministry of Justice as the executive cannot compel the courts to act in a particular way given the principle of judicial independence.
48. Mr Teta then considers the jurisprudence of the Albanian courts regarding Article 51.4 of law No 10193 of 3 December 2009. He mentions Decision No 812 of 15 September 2010, Mece, and its status, namely that it was not a "unified decision" of the joint benches of the Supreme Court under Article 141.2 of the Constitution and therefore does not have binding effect. Mr Teta reasons that therefore it does not have normative power and there cannot be any guarantee that the appellant will be retried.
49. We reject Mr Teta's conclusion on this aspect of the case and accept that the position is as set out in the Ministry of Justice letter of 30 June 2012. The Ministry states that it believes that Mece is correct and will be followed by Albanian courts. It may be that Mr Teta is correct as to the status of the Supreme Court's decision in Mece. However, there were doubts as to the binding character on other courts of the decision in Mece in Mucelli; but this court resolved them by reference to a number of factors. Crucially, it is to be noted that Mece was followed in Bogdani, Decision No 9, 19 January 2011, and the evidence before this court in Mucelli was that Bogdani was in the process of having his conviction reviewed. Mr Teta refers to Bogdani.
50. Significantly Mr Teta also refers to three other cases in a footnote (Toshi, Decision No 33, 16 December 2011; Domi, Decision No 1030, 7 December 2010; Elmazi, Decision No 232, 18 September 2013). In each of these it seems from Mr Teta's report that the Supreme Court ordered a retrial of extradited persons. Yet Mr Teta does not engage with the approach of this court in Mucelli, that whatever the doctrinal holes lawyers could pick Mece represented the practice of the Supreme Court of Albania when dealing with extradited persons tried in their absence. In Mucelli this court also took comfort that this would continue to be the practice given the scrutiny to which Albania was subject both by this country (and we would add other countries extraditing persons to Albania, and of course GRECO) and by the European Court of Human Rights.
51. In the second part of his report, Mr Teta addresses Article 147.2 of the Criminal Procedure Code, which provides for reinstating the time limit. As with both of Mr Teta's reports the argument is difficult to follow in the translation we have. However, it seems that he contends that a decision of the Albanian Constitutional Court in Decision No 83, 12 July 2012, Marash Gjoka, restricts this right. There, according to Mr Teta, the Constitutional Court avoided deciding whether Article 147.2 of the Criminal Procedure Court was effective in the light of Article 6 of the European Convention on Human Rights. In Mr Teta's argument, Article 147.2 is unlikely to be effective because it requires a person to prove that he did not know about the trial outcome if the time period is not to run. Mr Teta then refers to a number of Albanian decisions not involving extradition about reinstatement of the time limit to support his argument.
52. Gjoka in the Albanian Constitutional Court came too late for the Albanian letter of 30 July 2012 to comment on it. Unsurprisingly, given that the appellant was agitating a range of issues from judicial corruption, through blood feud, to prison conditions, the Albanian Ministry of Justice did not comment specifically on Golka in its supplementary letter. However, from Mr Teta's description of Golka we fail to see why he attaches the weight he does to it. Although it would be a crucial consideration for this court, Mr Teta does not inform us about what actually happened to Golka after the Constitutional Court decision. In any event, Mr Teta does not address the point made in the Albanian letter of 30 July 2012: namely that under Albanian jurisprudence an extradited person receives notice of a decision where he enters Albanian territory and is served with it, and it is at this point that the time limit to appeal begins to run. We cannot see, on the basis of Mr Teta's report, that Golka alters the position; see also Zeqaj.
53. The final point in Mr Teta's opinion relates to an appeal in Albania by the appellant's co-defendant, Eliden Becka. Mr Teta's evidence is that where, as in the instant case, a co-defendant has brought an appeal, but the other co-defendant has not, if the court dismisses the application on behalf of the first co-defendant the second co-defendant is unable to request the renewal or the extension of the time period for an appeal. Mr Teta refers to a decision of the Joint Benches of the Supreme Court (without at this point giving the citation) as authority for the proposition that the only exceptions appear to be where the court rejects the first co-defendant's application under Article 420.1 of the Criminal Procedure Code, or where the court states that the ruling applies only to the co-defendant appealing and not to all defendants. Mr Teta then asserts that because Becka's appeal was dismissed not on the basis of Article 420, but Article 433, the appellant would not have a right of applying for a retrial because of his co-defendant's appeal.
54. In Mr Khalil's submission on his behalf, this is the decisive point which takes the appellant's case out of the run of the mill. He submits that the respondent has not answered Mr Teta's expert evidence. There is nothing to contradict it and so we must accept that there is a bar to the appellant's retrial.
55. In the light of Mr Teta's own report we reject this submission. We have the decision of the Joint Benches of the Supreme Court, Decision No 1 of 20 January 2011, Hodaj and Spahaj, to which Mr Teta refers. The court ruled:

"In criminal cases with several defendants the court should reject the request of reinstatement of the right to appeal filed by the defendant, who had not exhausted his right to file an appeal, when it is determined that the case is judged based on the appeal of a co-defendant.

Notwithstanding the foregoing, in criminal matters with several defendants, the court must accept the request for reinstatement of the right to appeal filed by the defendant, who has not filed an appeal, when the appeal of the co-defendant is not accepted for one of the reasons provided in paragraph 1 of Article 420 of the Code of Penal Procedure, and as well in the case when the court has ruled only in relation to the appeal by the defendant who has used his right of appeal and it is not related to all co-defendants" (our emphasis).

56. On its face the appeal by Becka to the Supreme Court in Decision 419 of 20 November 2000 was confined to the grounds that he had advanced. These concerned the evidence at the scene of the murder, the cause of death and the background of the dispute between the victim and the defendants. The Supreme Court held: "The recourse submitted [i.e. the grounds Becka submitted] does not constitute legal grounds that are provided for in Article 432 of the Criminal Procedure Code." That, to us, falls within the exception which we have highlighted in the quotation from the judgment in Hodaj and Spahaj, to which Mr Teta also refers. The Supreme Court's decision in Becka had nothing to do with this appellant. (A submission that the Supreme Court increased this appellant's sentence on Becka's appeal is factually inaccurate.)
57. More fundamentally, as we observed in argument, it would prima facie constitute a breach of the principle of fairness contained in Article 6 of the European Convention on Human Rights to deny a defendant an appeal just because a co-defendant appealed separately on a different issue. Under the Albanian constitution, as we noted earlier, the Convention, in particular Article 6, holds a privileged status in Albanian domestic law. In this case the co-defendant Becka appealed on grounds concerned with the offending itself. The appellant's account is that he was in Italy at the time of the murder so presumably his case is quite removed from that of his co-defendant Becka. If this is the position it would be quite unfair for Becka's appeal to determine the outcome of his appeal.

Conclusion

58. Consequently, in respect of the claim that the appellant would not receive a retrial we conclude that there is no evidential basis to depart from the decisions of this Court in Mucelli and Zeqaj. In this case Albania has given an explicit guarantee that the appellant will enjoy a right of re-trial in its letter dated 30 July 2012. There is no basis for the appellant to assert that he would not receive a re-trial. This court is not concerned primarily with doctrinal niceties about what may or may not be the position in Albanian law but with whether the right to a re-trial or on appeal a review is a real and effective right. Nothing we have heard persuades us that this appellant will not be able to exercise the right which the Albanian Ministry of Justice has guaranteed.

OTHER POINTS

59. The appellant's argument pursues other points in the case: conditions in police stations; blood feuds; delay; and ECHR Article 8. Mr Khalil accepted that none of these "was likely to prevail on its own", and did not develop them at the hearing. He was right not to do so. Singly or together, they cannot in our judgment support the appeal, which is dismissed.