Republic of Albania v Bleta & Anor [2005] EWHC 475 (Admin)

“Ministry of Justice forwards, in response to your request for confirmation on the four points made by your authority relating to the extradition of the Albanian citizen Fatmir Bleta from the United Kingdom to Albania, as follows: Regarding Point 1, concerning the start of time periods provided for in Article 147/3 of the Criminal Procedure Code, we provide the following explanation: Considering Article 3, par 2 of the Second Additional Protocol of European Convention on Extradition, under which “if the requested party notifies the person whose extradition is requested for the proceedings held at his absence, the requesting party is not going to consider this communication as an official notification for the purposes of the criminal procedure in this state”, the notification done by your authorities is not going to be considered within the time period. Consequently, considering Article 147/3 of the Albanian Criminal Procedure Code, that the request for the restoration in the former legal position shall be filed within ten days from the day when the defendant has effectively been notified about the act, and Article 464, par 3 of the Albanian Criminal Procedure Code, according to which if the convicted person is in remand imprisonment, the order for the enforcement of the imprisonment sentence shall be sent to the state authority which administers the prisons and shall be notified to the interested person, while if the defendant is not in remand imprisonment, there shall be ordered his imprisonment, we explain that the time periods start when the convicted person has received official notification from the competent authorities in accordance with Article 464/3 of the Albanian Criminal Procedure Code. With regard to point 2, through which there was requested confirmation whether the restored right for appeal has to do with a full retrial, we explain as follows: In reliance to Article 425 of the Albanian Criminal Procedure Code, “Appeal Court hears the case in its entirety and it is not restricted only within the grounds contained in the complaint”

“The Government’s case is that the Defendant was in possession of an unauthorised automatic rifle and shot a man once in the head. The Defendant left the scene and in due course made his way to England. He was never arrested. The Government maintains that he must have known that the shot was fatal and that a trial was inevitable. In leaving the country in those circumstances he was waiving his right to be present at the trial and was deliberately absenting himself from that trial.”

“In the present case I am satisfied that the Defendant was never arrested and that he was never the subject of the equivalent of our charging process. There is no material before me to show that he knew of the existence of the proceedings, and certainly no material to show that he knew, or should have known, of the date and place of his trial and that the trial might proceed in his absence. It seems to me that on a proper construction of Section 85(3) it cannot be said that the Defendant deliberately absented himself from his trial where he was unaware of the commencement or existence of the proceedings, or of the date and place of his trial. Having concluded that the Defendant did not deliberately absent himself from his trial, I then have to consider whether under Section 85(5) he would be entitled to a re-trial. It is clear from the Judgment of the court and it is conceded by the Government that the time limits for the appeal have expired and that the Defendant would not be entitled to a retrial (or a review amounting to a retrial) in respect of these changes. On these grounds I am obliged under Section 85(7) to discharge the Defendant.”

“The contracting states enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of article 6(1) in this field. The court’s task is not to indicate those means to the states, but to determine whether the result called for by the Convention has been achieved.”

“ (1) A defendant has, in general, a right to be present at his trial and a right to be legally represented. (2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him. (3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or legal representatives. (4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. (5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account…”

“In the present case the conviction was undoubtedly obtained in the absence of the applicant, so the requirement of section 6(2)(a) of the 1989 Act is satisfied, and the only question therefore is whether it can be said that it would not be in the interests of justice to return him. I would not so find for three main reasons: (1) in my judgment it is clear that when the applicant left Sicily he knew that a criminal trial was imminent, and having been seen by the investigating magistrate he knew what the charges were going to be. Having regard to the time scale the probability is that he had received the relevant documentation, and information as to the date of trail, whether or not he personally signed the receipt of 10 November 1990. Similarly, whether or not he actually signed the application for an abbreviated trial on 4 January 1991 it seems to me overwhelming likely that he agreed to that application being made on his behalf. So, as it seems to me, the applicant simply chose to leave Sicily a matter of days before his trial in full knowledge of what was about to take place. (2) At the trial he was legally represented by a lawyer who was clearly active on his behalf, and as to whose competence no complaint is made. The evidence against him was, it seems, confined to the evidence of accomplices, but he chose not to be present to contest that evidence. (3) He was aware of his conviction, and could if he chose to have returned to Sicily and taken an active part in his appeal. He chose not to do so, whoever signed the notice of appeal.”

“But the European Court of Human Rights have never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued.”

“The law of England and Wales, while conferring a right and imposing an obligation on the defendant to be present at a trial on indictment, has never been held to include any comparable rule. If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.”

“the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution”

“I consider that the authorities make it clear that a court has power to proceed with a trial when the defendant has deliberately absconded before the commencement of the proceedings to avoid trial, although it is clear that the power to proceed in such circumstances should be exercised by the trial judge with great care.”

“The diverse circumstances in which s10(1) might have effect, as regulations are made applying the Act in relation to the many countries with which Australia has concluded, or may conclude, treaties on extradition – countries with widely differing legal systems – suggests that s10(1) has a broad general object of removing previously relevant distinctions between different types of convictions in a person’s absence. No object emerges that would suggest that a special or technical meaning was intended. Rather, the potentially diverse circumstances under which s10(1) might operate point the other way, to an intention that the expression in question should be interpreted according to ordinary English usage.”

“The meaning of “accused” person It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of “accused” persons. It is also common ground that it is not enough that he is in the traditional phrase “wanted by the police to help them with their inquiries.”

“But he [Counsel] argued that a different approach is necessary in regard to domestic extradition legislation. He made a comparison with criminal statutes and submitted that an approach of strict construction is necessary. The Board would reject this submission. Even in regard to criminal statutes the presumption in favour of strict construction is nowadays rarely applied. There has been a shift to purposive construction of penal statues: see Cross, Statutory Interpretation, 3rd ed (1995), pp 172-175. In any event, it is a well settled principle “that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction”: The Antonis P Lemos [1985] AC 711, 731.”

“42. We repeat that in our opinion the requesting state made out a strong case for extradition and it is therefore with genuine regret that we find ourselves unable to agree with the majority in thinking that the judge’s error can be corrected. The “war on drugs” is important, although not everyone would agree with the means employed towards it or even with the military metaphor. But equally, if not more important, is the rule of law. People facing extradition, however unmeritorious they may be, are entitled to the law. If Parliament has made no provision for appeal against an erroneous order for their release, they are entitled to the benefit of that order. It is not the function of judges to become legislators and remedy what they perceive as a defect in the law by giving a far-fetched construction to what we are bound to say are the extremely plain and simple words of section 17(3) [of the Bahamas Court of Appeal Act, as amended].”

“The certified question raises a question of principle, but it falls to be answered in the factual context of this case. It is particularly important to note that the appellant was arraigned and pleaded not guilty in January 1998, but that his trial did not then commence: R v Tonner [1985] 1 WLR 344. He was bailed to appear at his trial on 1 June 1998. He had the benefit of legal aid to instruct, and did instruct, solicitors and counsel to represent him at his trial. He knew the date of the trial and of his obligation to attend and deliberately decided to absent himself for reasons of his own. He had no reason to believe that the trial would not proceed in his absence or that his legal representative would be able to represent him if he did not appear.”