England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
In the matter of an appeal under section 103 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/02/2017

Lady Justice Sharp :

1. This is an appeal under section 103 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Zani, at Westminster Magistrates' Court to send the appellant's case to the Secretary of State pursuant to section 87(3) of the 2003 Act, for her to decide whether to extradite him to Albania.
2. The appellant, Saliman Barci who is now 41 years old, has lived in this country under a false identity for 14 years. The Government of Albania seeks his extradition to serve a sentence of 25 years' imprisonment, for two offences of murder and possession of a firearm, committed on 18 July 1997.
3. The proceedings are governed by part 2 of the 2003 Act, the Extradition Act 2003 (Commencement and Savings) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. Albania is also designated for the purposes of sections 71(4), 73(5), 84(7) and 86(7) of the 2003 Act by para 3 of SI 3334 of 2003. A certificate certifying the request under section 70 of the 2003 Act was issued on behalf of the Secretary of State on 17 July 2015 and has been made in the approved way.
4. The appellant was arrested under section 74 of the 2003 Act on a provisional request, in the cells at Westminster Magistrates' Court on 17 June 2015. He was arrested under the name of Samir Bashsa, but did not dispute that he is the person named in the extradition request. He appeared at an initial hearing at Westminster Magistrates' Court on the same day. He raised no preliminary issues. As he was subject to domestic criminal proceedings, his case was adjourned under section 76A of the 2003 Act. By 3 August 2015 his domestic criminal proceedings (for possession of class 'A' drugs) had come to an end and he confirmed that he did not consent to extradition. The extradition hearing was opened on that date.
5. The substantive extradition hearing took place on 3 and 4 May 2016 before District Judge Zani. The Court heard evidence from the appellant, and expert evidence from Ms. Antonia Young and Dr. Zhilla. Further material was provided to the court on the appellant's behalf, after the hearing.
6. In a reserved judgment, handed down on 1 July 2016, District Judge Zani concluded there were no bars to extradition; and sent the appellant's case to the Secretary of State for her decision on whether to order extradition. On 15 August 2016 the Secretary of State ordered the appellant's extradition, and he remains remanded in custody.
7. The appellant's application for permission to appeal was lodged on 25 August 2016 and served on the CPS acting for the respondent on that day. The respondent's notice and submissions opposing the grant of permission, filed within the relevant time limits, were not put before Holman J when he considered the question of permission on 5 December 2016. This is unfortunate, as the judge noted that the respondent had not helped itself by failing to file or serve summary grounds of opposition.
8. As it was, Holman J granted permission to appeal limited to two grounds:

i) Whether the District Judge was correct to conclude that the Appellant's extradition was not barred by the passage of time under section 82 of the 2003 Act;

ii) Whether the District Judge was correct to conclude that the Appellant was entitled to a retrial under section 85 of the 2003 Act.

9. Permission to appeal was refused on two further grounds, in respect of which the application for permission is renewed before us:

i) That extradition is incompatible with the appellant's rights under Articles 2, 3, 6 and 8 of the ECHR under section 87 of the 2003 Act: (Articles 2, 3 and 8 due to a risk to him from a blood feud in Albania; Article 3 because of prison conditions in Albania, and Article 6 because of systemic judicial corruption in Albania);

ii) Extradition is unjust or oppressive by reason of the appellant's physical and mental condition under section 91 of the 2003 Act.

10. Holman J refused permission on those grounds, rightly in my judgment. As he put it succinctly: "…the District Judge dealt adequately and fairly [with the matters raised] in the light of the evidence. The appellant is alleged to have committed very serious offences (two murders) and provided he can receive a fair retrial, none of the claimed human rights arguments under Article 8 or based on rather non-specific ill health should stand in the way of it. Articles 2 and 3 are of course of the utmost gravity, but the District Judge dealt with them entirely appropriately."
11. The facts and the background to the request are set out in the Extradition Request, in particular, in the Prosecution Office's Report on the Appellant of 27 June 2015. The murders of which the Appellant was convicted occurred in Burrel in Albania on 18 July 1997. The victims were Perparim Ibrahimi and Artur Gjikola. Both men were shot dead late that night. They had left Ibrahimi's apartment at around 11pm that evening with the Appellant, who told them "tonight we'll gain 60 Million Leks" The next day, the two victims were found close to the entrance of a stadium. Police recovered three cartridges from the scene: a technical ballistic experts report of 29 July 1998 said that the cartridges were 7.62mm bullets, model 54, fired out of a model 1954 weapon, calibre 7.62 mm. The cause of death was confirmed by forensic evidence.
12. According to the appellant, his nephew was murdered by the Ibrahimi family in retaliation four months later; and he then felt compelled to flee from Albania, in fear of his life because he was blamed for the murders.
13. The investigation into the murders of Ibrahimi and Gjikola was re-opened on 11 March 2009 as a result of evidence received by the police that the appellant had admitted to the murders. He had sent a message, via two intermediaries, to the brother of one of the victims, seeking 'reconciliation' as he had killed the victims, and an Ibrahimi family member had then killed his nephew. An accusation was then filed against the appellant for the offences of murder and the illegal possession of weapons.
14. On 29 March 2009 the Judicial District Court in Mat issued an order for the appellant's arrest. On 20 May 2009 he was declared an escapee by that court. On 8 September 2009 two lawyers were appointed to represent the appellant under a special proxy signed by his sister. On 24 November 2009 he was convicted in his absence by the District Court in Mat of the two offences of murder and of illegal possession of weapons, and sentenced to 25 years' imprisonment. On 17 September 2010, the Court of Appeal of Tirana quashed the decision of 24 November 2009, and remitted the case to the District Court for a retrial. On 18 February 2013, the Supreme Court in Tirana revoked the decision of 17 September 2010, and remitted the case to the Appeal Court for reconsideration. On 6 December 2013, the Appeal Court rejected a complaint submitted by the appellant's lawyer.. On 9 January 2014 the appellant's lawyer submitted an appeal to the Supreme Court. On 19 May 2014, the Judicial District Court in Mat rejected an application by the appellant's lawyer (appointed under a proxy dated 13 February 2014) to appeal against the decision of 24 November 2009, as the appeal to Supreme Court was still extant. On 1 April 2015, the Supreme Court admitted the appellant's lawyer's complaint.
15. On 17 July 2015, the Albanian authorities requested the appellant's extradition. On 28 October 2015, the Penal College of the Supreme Court heard the appellant's case and overturned the decision of the Court of Appeal of Tirana's decision of 6 December 2013, as based on a mistaken application of the law. The appellant submitted a power of attorney in that hearing before the Supreme Court. The case was remitted for trial before the Court of Appeal of Tirana.
16. Three sets of further information from the respondent were before District Judge Zani. The first is dated 29 January 2016, and signed by the Deputy Minister of Justice of Albania. The second, is provided under cover of two letters from the Minister and General Prosecutor's Office. The third is dated 24 February 2016. It is not necessary for the purposes of this appeal to set their content out in any detail, or in the precise translation.
17. It states amongst other things, that the appellant was tried in absentia, and the Albanian state guarantees the exercise and respect of his right to retrial. Article 6 of the European Convention on Human Rights (the Convention) is a part of Albanian law. Albanian law recognises trial in absentia with the compulsory participation of defence counsel either appointed by the defendant or appointed ex-officio. Trial in absentia is not a breach of Article 6. The Convention enjoys privileged status in Albanian law; and is explicitly recognised by the Constitution, which prohibits disproportionate restrictions of human rights.
18. Parts of the Criminal Procedure Code of Albania are also set out, and explained. Article 147.2 which applies when a decision is rendered in absentia and provides that the defendant may claim reinstatement in the time limit to file a complaint, when he proves he has not been informed of the decision. Article 410, which confirms that a defence lawyer can only lodge an appeal if he has a power of attorney to do so; that ex officio lawyers or lawyers chosen by relatives cannot exercise the right of appeal, and that trial in the appeal court is a new trial under the Convention. Article 427 which permits judicial review, and provides that the appeal court can take new evidence; the procedure can be used where the defendant has not received notice of the trial or was not able to appear due to legal grounds, and that a first instance decision rendered in absentia can be annulled.
19. Reference is made to the Constitutional Court's decision no. 30 of 17 June 2010 which recognises the recent standards of the European Court of Human Rights in relation to trial in absentia and confirms that a defendant must be informed if a criminal process has been instituted against him. If a decision is rendered in absentia, the defendant may reinstate the time limit to file a complaint to prove he was not informed of the decision. Article 504 makes provision for conditions to be imposed on extradition.
20. On the issue of blood feud, the further information states that a 2005 law creates a strategy for the elimination of blood feud and civil society organisations play a role in minimising such offences; and blood feud is not currently a worrying phenomenon in Albanian society. Further, extra-judicial killings are investigated in accordance with the Criminal Code.
21. The further information says that in this case, the rules of judicial session, the preliminary acts which related to the procedural rights of defendants, the taking of evidence and the judicial scrutiny of the offence were done in conformity with the Criminal Procedure Code of Albania. The Albanian authorities provide an assurance that the appellant will be afforded a necessary defence after his surrender to Albania; and state that the penitentiary system is governed by a legal framework which provides the groundwork for the protection of vulnerable prisoners and medical treatment of sentenced persons and pre-trial detainees with health problems.
22. The District Judge rejected the appellant's challenges to extradition under sections 82, 85 and 91 of the 2003 Act, and under Articles 2, 3, 6 and 8 of the Convention. He found that the appellant was not a fugitive from justice albeit he has instructed lawyers in Albania to represent him in on going proceedings there. He noted the seriousness of the offences and that the appellant has lived in the United Kingdom using a false identity throughout the time that he has been here. He said that the appellant had not been able to point to any evidence or information that would render his return unjust. Nor were the changes in the appellant's life since the offences took place sufficient to render his extradition oppressive. He said he was entirely satisfied that the Albanian authorities will provide the appellant with a retrial that is compatible with his human rights in the event that he is extradited; and that the assertion that the appellant would not have a fair trial by reason of judicial corruption has not been made out.
23. He found the evidence of Ms Young in support of the Article 2 challenge, to be unpersuasive. As to that, he said the Albanian authorities had confirmed in the further information, the measures available to protect the appellant in the event he was to considered vulnerable; they were well aware of their article 2 and 3 obligations and would abide by them. In relation to Article 6, the District Judge said that the appellant had failed to demonstrate to anywhere near the required standard that he faces a real risk of a breach of Article 6 rights if he were to be returned to Albania. He said he was entirely satisfied that the appellant had fallen well short of demonstrating that if he were to be extradited there is a real risk that he will not be afforded a fair (re) trial and/or that any such retrial will be influenced by judicial corruption.
24. Against that background, I turn to the issues raised on the substantive appeal: first, passage of time; and secondly, retrial. Central to both of those arguments, as addressed to us orally, is the issue of judicial corruption.
25. Mr Ben Cooper for the appellant acknowledges that it has been decided that there is a right to a retrial in Albania for persons convicted in their absence, and that this is a real and effective right; and he also acknowledges the strength of those authorities: see in particular, Bardoshi & Sadushi v Albania [2014] EWHC (Admin); Kapri, [2013] HCJAC 33; and Cupi v The Government of Albania [2016] EWHC 3288 (Admin), a decision handed down on 21 December 2016. However, he submits these do not determine the fate of the appellant's case, for a number of (related) reasons.
26. First, he submits there is fresh evidence before the court which casts doubt on the evidence that persuaded the Scottish court in Kapri (and therefore the court in Bardoshi which found Kapri to be persuasive) that the right to a retrial is a real and effective right and that there was no pervasive or systemic judicial corruption which will taint any retrial. Secondly, he says this case is exceptional on its facts. Unlike those cited, it does not depend on evidence of systemic corruption alone; there is specific (and also fresh) evidence, of improper conduct by the three judges who convicted the appellant at his trial on 25 November 2009. Thirdly, he submits that the object of section 85 of the 2003 Act is to secure meaningful fair trial rights: see section 85(8). Those rights, and therefore the right to a retrial become meaningless when the justice system is tainted by corruption. Thus, the evidence of judicial corruption is relevant to whether the appellant has a right to a retrial for the purposes of section 85 of the 2003 Act. Further, since the issue is raised by reference to section 85 rather than section 87 of the 2003 Act, it is not necessary for an appellant to demonstrate that he risks a "complete denial or nullification of the right to a fair trial", per Lord Phillips in RB Algeria v Secretary of State for the Home Department [2010] 2 AC 110), in the event extradition is ordered, since that test that is only relevant under section 87 of the 2003 Act to whether extradition is compatible with a person's Convention rights.

Discussion

27. The material which Mr Cooper relies on to support the first submission is contained in a report dated 14 July 2016, which was produced in these proceedings for the first time on 17 February 2017. The report focuses on the lack of reasoning in judicial decisions, which can thereby be used for corrupt purposes to ensure the wrong party wins. Ms. Marsida Xhaferllari is named in a list of 13 judges, about whom a complaint has been made to prosecutors, by the organisation that produced the report, SH.A.A.SH (which we are told stands for the Albanian Anti-Corruption Association of Advocates). Mr Cooper says this is significant because Ms Xhaferllari's evidence in Kapri on behalf of the Government of Albania, formed an important plank of the decision in that case and that of Bardoshi on the issue of judicial corruption: see for example, para 14 of Bardoshi which cites paras 132 to 142 of Kapri.
28. In my view, Ms Xhaferllari's inclusion on this list does not come close to providing an adequate foundation for the assertion that her evidence can no longer be relied on, and/or that the court should therefore revisit the issues to which detailed consideration was given in Kapri and Bardoshi. It is to be noted that she is not identified as the author of the examples given of inadequately reasoned judgments, of which the criticism in the main, is that they are general abstract declarations or in stereotype forms; nor is it suggested that the complaint to which the report refers, has led to any investigation of Ms. Xhaferllari or adverse findings against her. Indeed, the report makes no specific allegations of any kind against her (whether of corruption, or anything else).
29. As for the specific evidence relating to the judges in Mat, it seems to me that it is of little, if any, relevance to the effectiveness of the appellant's retrial. First, the decision of the Penal College of the Supreme Court of October 2015 provides for a retrial in the Court of Appeal, and not before the judges in Mat. Secondly, the evidence does not amount to much on its face. The District Judge correctly summarised it in this way (at para 117 of his judgment): "Some complaint has also been made in relation to [those] judges…There is no evidence before the court to demonstrate that any of those judges has been implicated in corruption; and in any event, albeit a complaint had separately been made against one of those judges (Judge Karaj) he has been disciplined in accordance with the provisions of the appropriate Albanian judicial disciplinary code." Thirdly, as Mr Daniel Sternberg for the respondent points out, Dr Zhilla said in his evidence, he could not find anything in the appellant's original trial to show it had been tainted by corruption.
30. The further material that Mr Cooper invites us to admit as fresh evidence on this topic, does not in my opinion satisfy the relevant criteria for admissibility under section 104(4) of the 2003 Act: see further Szombathely City Court and others v Fenyvesi and another [2009] EWHC 231 (Admin). It would not have led to a different result since it is simply "more of the same"; it existed at the time of the hearing, and could have been obtained with reasonable diligence (by Dr Zhilla for example, for the purposes of his expert evidence to the court below).
31. I do not accept Mr Cooper's further (and novel) submission that the issue now raised in relation to judicial corruption can simply be 'imported' into the determination to be made on the issue of a retrial under section 85 of the 2003 Act, thereby bypassing the stringency of the test that would otherwise apply were the issues to be raised under section 87 of the 2003 Act, by reference to Article 6 of the Convention. In my judgment a simple reading of the relevant statutory provisions precludes such an argument.
32. Section 85 of the 2003 Act provides that:

(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.

33. In a case where a person is convicted in his presence, section 85(2) of the 2003 Act requires the judge to proceed under section 87 to "decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998…": see section 87(1) of the 2003 Act. However, the relevant question which the court must determine under section 85(5) is a different one. It is whether a person convicted in his absence, who did not deliberately absent himself from his trial, has the right to a retrial. As the words of section 85(8) make clear, the judge must not determine that question in the affirmative, unless the person concerned has the rights specified in section 85(8) of the 2003 Act. The 'fair trial' rights relevant to the determination of that question, are those specified (and in my judgment, only those specified) in section 85(8) of the 2003 Act.
34. Even if I am wrong about that however, in my judgment, there is no evidential basis for departing from the decisions of this court in Bardoshi and Cupri that a retrial in Albania, after conviction in a person's absence, is a real and effective right; or for disturbing the District Judge's carefully reasoned conclusions (that the Albanian authorities will provide the appellant with a retrial that is compatible with his human rights and the assertion that the appellant would not have a fair trial by reason of judicial corruption had not been made out).
35. Mr Cooper formally maintains the first ground of appeal for which permission was given, that is that the District Judge erred in concluding that the appellant's extradition was not barred by the passage of time under section 82 of the 2003 Act. However, he did not address us orally on it, save to say that the appellant would face a real risk of injustice from a retrial because there is a risk that he will be tried by a corrupt judge. This submission is subsumed in his principal arguments on judicial corruption, which I do not accept for the reasons I have given already. I can deal with the remainder of this ground, as set out in writing, shortly.
36. Mere effluxion of time does not without more render an extradition oppressive or give rise to injustice: see Brzeski v Regional Court in Gdansk, Poland, [2012] EWHC 1138 (Admin) DC at paragraphs 11 to 19. Further, the appellant's extradition in this case is sought for offences of the utmost seriousness. This enhances the public interest in extradition taking place, and raises the threshold for the establishment of oppression under the bar of passage of time: see Hutton v Australia [2009] EWHC 564 (QB) DC at paras 14 and 24.
37. As Mr Sternberg points out, no reasons are advanced for challenging the District Judge's finding that there would be no oppression in this case other than that the offending was a long time ago and the appellant now faces a new trial in his presence following lengthy proceedings in Albania. Furthermore, it is not suggested that the appellant would suffer any particular disadvantage in the conduct of a retrial in the event of his return. There is therefore nothing to displace the presumption that arises from the fact that Albania as a Council of Europe Country, can protect an accused person from an unjust retrial: see further, Gomes and Goodyer v Trinidad and Tobago [2009] UKHL 21.
38. Notwithstanding the change in the appellant's circumstances during the lengthy period that he has lived in the United Kingdom, the District Judge was therefore plainly entitled to conclude that the passage of time challenge under section 82 of the 2003 Act had not been made out.
39. I have already referred to Holman J's short reasons for refusing permission to appeal on the two grounds set out at paragraph 10 above, and stated my agreement with them. Mr Cooper confirmed he did not press the argument in relation to Article 8. He did however press his argument that extraditing the appellant would be a breach of his rights under Articles 2 and 3 of the Convention.
40. These matters were addressed at length in the parties' written submissions, and we were taken through a number of documents on the issue of blood feud and prison conditions. It is not suggested however that the District Judge erred in law in his approach to these matters, and none of this material, carefully considered by him, persuades me that his conclusions on the challenges made before him were even arguably wrong. The point seems to be that the District Judge ought to have decided these issues differently. However, he was in my judgment entitled to regard the evidence of Ms. Young as of limited assistance on the issue of blood feuds, and largely unpersuasive. As he pointed out, her evidence was of a general nature, and not specific to the appellant. I would add that this observation was true too of her evidence on prison conditions and their potential to affect the appellant's health. In my judgment, there is no arguable basis for departing from his conclusion that the Albanian authorities would abide by the assurances given (of appropriate protection to the appellant in the event he was to be considered vulnerable because of a blood feud); or that the Albanian authorities were aware of their obligation to provide appropriate treatment commensurate with the appellant's health issues.
41. As for prison conditions, the correct approach to this issue is summarised in El Ashmawy v Italy [2015] EWHC 28 (Admin). Albania is a Part 2 territory, but it is a member of the Council of Europe, a signatory to the Convention, and therefore subject to the jurisdiction of the European Court of Human Rights as well as being a candidate for EU membership. See further on Albanian prison conditions, Voci v Government of Albania [2014] EWHC 4030 (Admin) at paras 29 to 32, a case to which the District Judge specifically had regard.
42. With respect to the arguments advanced by Mr Cooper, the evidence (in recent CPT reports authorities for example) falls very far short of establishing a real risk of torture or inhuman or degrading treatment to the appellant. Moreover the up to date and first hand evidence from the Albanian authorities which was before the District Judge, is that they have made a substantial investment in improving conditions in the institutions criticised by the CPT. They have also confirmed that the appellant will be held in conditions that are in accordance with European standards and will not breach his rights under Article 3 of the Convention. There is no arguable basis in my view for departing from the District Judge's conclusion that the Article 3 challenge to extradition is not made out.
43. For the reasons given, I would dismiss the appeal, and refuse the renewed applications for permission to appeal.

Mr Justice Sweeney :

44. I agree.