Murtati v Government of the Republic of Albania [2008] EWHC 2856 (Admin)

[2008] EWHC 2856 (Admin)Case No CO/6136/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2008
Before
LORD JUSTICE PILLMR JUSTICE PITCHFORD
Between
Asim MurtatiAppellantthe Government of the Republic of AlbaniaRespondent
Mr B Lloyd (instructed by Lawrence & Co) for AppellantMs R Barnes (instructed by CPS) for RespondentHearing Hearing date: 30 October 2008
Judgment
[1]This is an appeal under Section 103 of the Extradition Act 2003 (“the 2003 Act”) against the decision of the Deputy Senior District Judge Wickham, sitting at the City of Westminster Magistrates Court on 6 June 2008, to send the case to the Secretary of State for her decision whether Asim Murtati (“the Appellant”) should be extradited to the Republic of Albania. On 30 June 2008, the Secretary of State ordered the appellant’s extradition.[2]The appellant, an Albanian citizen, is 31 years old and within this jurisdiction. His extradition is requested by the Government of the Republic of Albania (“the respondent”) for the purpose of executing a custodial sentence imposed following his conviction of an offence of armed robbery and an offence of unlawful possession of military weapons, contrary to Albanian law. He was sentenced to 11½ years imprisonment. Albania is a Part 2 territory under Section 69 of the 2003 Act.[3]Before the Deputy Senior District Judge the principal issues were identity and a right to a retrial under section 85 of the 2003 Act. The appellant contended that he was not the person whose extradition was sought by the respondent. The Deputy Senior District Judge ruled against him and that issue has not been pursued. It is submitted on behalf of the appellant: i) Extradition was barred because it would be unjust by reason of the passage of time (section 82 of the 2003 Act). In so far as is material, Section 82 provides: “A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have – (b) become unlawfully at large (where he is alleged to have been convicted of it).” ii) The Deputy Senior District Judge was in error in holding that the appellant would be entitled to a retrial or (on appeal) a review amounting to a retrial within the meaning of Section 85 of the 2003 Act.[4]On 15 July 2008, Collins J extended the time within which the appeal could be heard.[5]The extradition request specified that, on 18 November 1997, the appellant and four others ambushed a minibus and, by firing weapons, forced the driver to stop. They then robbed the passengers of the minibus of their money and other property. Criminal proceedings were instituted by the prosecutor’s office of the District of Kukes and a warrant for the appellant’s arrest was issued on 22 January 1998. The appellant was not found and was later formally declared by the court to be absent. A defence lawyer was appointed on his behalf in his absence.[6]On 3 November 1998, the appellant was convicted of the charges in Albania. The appellant’s brother instructed the court appointed defence lawyer to lodge an appeal against the decision. On 18 January 1999, the appeal court upheld the decision of the District Court, which became enforceable on 17 February 1999.[7]This court refused an application by the appellant to adjourn the hearing so that the respondent could have an opportunity to consider fresh evidence produced by the appellant. The court did not consider the material helpful to the appellant. At the hearing the court admitted, without objection from Mr Lloyd on behalf of the appellant, material from Albania which had been before the court in Bogdani v Government of Albania [2008] EWHC Admin 2065.[8]Mr Lloyd submits that it would be unjust to return the appellant because of the substantial lapse of time since the offences are alleged to have been committed. While it is no longer submitted that the appellant was not the man the respondent was seeking, the appellant will seek to argue at any retrial that the identification of him at the scene of the offences was mistaken.[9]At the trial, the court appeared to have regard to the evidence of a co-defendant. It cannot be assumed, it is submitted, that the co-defendant and other potential witnesses would now be available. Given the lapse of time, it will be difficult to challenge identification evidence. It will be difficult now to obtain evidence that the appellant was in Macedonia at the time the offence was committed, which is his proposed defence. The appellant relies on the absence of a specific finding by the District Judge that the appellant was a fugitive and the burden of proof on the respondent. The District Judge was not satisfied that the appellant had been aware of the proceedings and trial.[10]For the respondent, Miss Barnes submits that, while the judge did not expressly state that the appellant was a fugitive, her factual findings amount to such a finding, even though the appellant had not been aware of the court proceedings. He left the Balkans “shortly after the commission of these offences” and he adopted another identity in the United Kingdom. The Deputy Senior District Judge stated that “he can hardly be described as having lived openly”. There was also evidence from which the District Judge could and did infer that, in recent years, the appellant had been in contact with his family.[11]In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 482, Lord Diplock stated that he regarded the word “unjust” in section 82 “as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself”. At page 783, Lord Diplock stated:
“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he would be required to accept them.”
In more recent cases, Moses LJ in Government of the United States of America v Tollman & Tollman [2008] EWHC Admin 184 and Richards LJ in Krompalcas v Prosecutor General’s Office, Lithuania [2008] EWHC Admin 1486 have stated the profound consequences on this issue of a finding that a requested person was a fugitive from justice. Moses LJ stated, at paragraph 53 of Tollman:
“Generally, there can be no injustice in requiring the accused to be extradited where delay is caused by his escape.”
[12]In Norris v Government of the United States of America [2008] UKHL 16 Lord Bingham considered, at paragraphs 107 to 109, the burden on an applicant who seeks to establish that he would be prejudiced at the trial. The context is a system of extradition under which the requesting State is not required to provide details of the evidence (witnesses, documents etc.) on which the prosecution would rely at trial (paragraph 107). Lord Bingham, at paragraph 109, referred to the lack of “specification of the supposed risk” in that case and stated that the appellant “really relies on speculation”. Moreover, the fairness of the trial could be considered during the proceedings in the requesting state.[13]In my judgment, the appellant should be treated as a fugitive and his application considered accordingly. In any event, I am not persuaded that his somewhat speculative comments on the lack of evidence which would be available to a court in Albania demonstrate that, subject to Mr Lloyd’s second submission, he would be prejudiced in the conduct of a trial in Albania.[14]The appellant submits that the respondent has not established under section 85(5) of the 2003 Act that the appellant “would be entitled to a re-trial or (on appeal) to a review amounting to a retrial” on return to Albania. Section 85(8) provides:
“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.”
[15]A difficulty faced by the appellant is that in Bogdani, it was held in this court that, on the same Albanian legislation as is now under consideration, the Government of Albania had established the existence of legal protection for a returning person, such as satisfies the provisions of section 85(5) of the 2003 Act (paragraph 53). (See also the decision in Da An Chen v The Government of Romania [2006] EWHC Admin 1752, paragraph 8 and paragraph 20, cited in Bogdani at paragraph 41 and 42). Mr Lloyd submits that the provisions of Albanian law remain unclear and the court should not be satisfied that, at the proposed retrial itself, the requirements of section 85(5) of the 2003 Act would be met. It is right to say that in Bogdani the appellant’s emphasis was upon whether there was a right to a retrial rather than on the procedure which would be followed at the retrial. Following the hearing, the parties in this case were invited to make further written submissions on that issue and, in particular, on the effect of section 85(8). Those further submissions have been considered.[16]Central to the issue whether a trial in Albania will comply with Article 6 is Article 17 of the Constitution of the Republic of Albania, cited at paragraph 31 in Bogdani:
"The European Convention of Human Rights enjoys a privileged status in proportion to any other norm of international agreements because it is expressly mentioned in the text of the Constitution thus being translated into a constitutional norm. Consequently, the judges may directly refer to the jurisprudence determined by the Court of Strasbourg in that respect."
[17]The court in Bogdani accepted that, on the material by then available, there could, by virtue of Article 147 of the Criminal Procedure Code, be a retrial and that Article 6 of the European Convention on Human Rights (“the Convention”) would apply to it. If, under Albanian law, the time limit is reinstated by virtue of Article 147, the effects of reinstatement are set out in Article 148 which requires the court to order the repetition of the operations in which the party was entitled to participate.[18]The appellant now seeks to argue that the appellant would not receive on return a trial compliant with Article 6 of the Convention. The impact of section 85(8) was only faintly argued until the court itself raised the question and the appellant’s case was on the ground trodden in Bogdani. Only in the post-hearing submissions is emphasis placed on the terms of section 85(8).[19]Section 85(8) follows the language of Article 6(3)(c) and (d) of the Convention. Mr Lloyd accepts the relevance of Article 6 when considering the effect of the section and accepts that, under Article 6, the question is whether the trial process as a whole is fair (Van Mechelen v Netherlands [1998] 25 EHRR at paragraph 50). In Sejdovic v Italy (1 March 2006, Application No. 56581/00), the European Court of Human Rights (“ECtHR”) declined, at paragraph 127, “to indicate how any new trial is to proceed and what form it is to take”. More recently in Demebukov v Bulgaria (28 February 2008 Application No. 68020/01), the ECtHR stated, at paragraph 46: “The Convention leaves to Contracting States 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”.[20]In Van Mechelen, at paragraphs 51, 54 and 55 the requirements of Article 6 were, in a context where admissibility of evidence is primarily a matter for regulation by national law, more fully set out. It was stated, at paragraph 54:
“54. … the Court has recognized that in such cases [where the defence does not have an adequate and proper opportunity to challenge a witness against him] Article 6 para. 1 taken together with Article 6 para. 3 (d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities (Lüdi v. Switzerland 15 June 1992, Series A no. 238, para. 72).”
[21]Section 85(8) of the 2003 Act was added by way of amendment to the draft bill but, in my view, the provisions of Article 6 would have applied on an application of section 85(5) in any event. Parliament intended that the Article 6 test should be applied by the court and that involves consideration of the jurisprudence of the ECtHR as to its application. While underlining Article 6 requirements, section 85(8) does not in my judgment involve a requirement additional to that in Article 6 as construed at the ECtHR.[22]It is for the respondent to establish compliance with section 85. In reply to the claim now made, Miss Barnes has referred to articles of the Albanian Criminal Procedure Code which provide details as to the procedure followed at a trial in Albania, including Articles 359 and 361. This material is not crucial to my conclusion.[23]Having regard to the assurance given that article 6 will apply, and the other material available, that burden on the respondent is prima facie satisfied. No expert or other evidence is called on behalf of the appellant to seek to demonstrate that a trial in Albania would not comply with article 6 of the Convention. Just as on a consideration of whether it would be unjust to return the appellant (section 82) (Lord Bingham in Norris above), speculative comment by counsel upon the facts and how the trial might proceed is insufficient to defeat the respondent’s case.[24]Given the decisions in Bogdani and Da An Chen, I am satisfied that the requirements of section 85 are met by the respondent. I would dismiss this appeal.

Pitchford J:

[25]I agree.

Cited in 8 later judgments