Kallmi v Republic of Albania [2009] EWHC 1411 (Admin)

[2009] EWHC 1411 (Admin)Case No CO/4036/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 2nd June 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE CRANSTON
Between
EDMOND KALLMIClaimantv
Between
REPUBLIC OF ALBANIADefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Amelia Nice (instructed by Messrs Malik & Malik) appeared for ClaimantMr James Hines (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE PILL:

[1]This is an appeal by Mr Edmond Kallmi, also known as Martin Buzi, from a decision of District Judge Tubbs given at the City of Westminster Magistrates' Court on 4th March 2008.[2]The Government of Albania had applied for the extradition of the appellant. The learned judge upheld the claim of the Government and referred the matter to the Secretary of State to decide whether to make an order. The sole point taken before the District Judge was whether on return to Albania, where the appellant had been found guilty of a serious criminal offence he could not be sure of a retrial following the trial in his absence in that Republic.[3]I refer briefly to the background facts. The appellant is an Albanian national. The offence in Albania was alleged to have been committed on 12th December 1998. On the following day the appellant fled from Albania and arrived in this country soon afterwards. On 12th January 2000, the appellant was convicted of the murder of Arjana Baci in Perondi. The offence involved the use of firearms. He was sentenced to 12 years' imprisonment. It was not until December 2006 that he was arrested on a provisional extradition warrant. His extradition was requested and the Secretary of State certified the request on 19th January 2007. In March 2007, the appellant was convicted at Harrow Crown Court, of course in this jurisdiction, of wounding with intent and affray. He was sentenced to two years' imprisonment, the early release date being set for 12th March 2008. The extradition at the Magistrates' Court was on 18th February 2008 and, as I have said, the decision was issued on 4th March.[4]There has been considerable litigation in relation to the right to a retrial in Albania of persons extradited there in circumstances such as the present and that was the issue argued before the District Judge. The submission made by counsel appearing on the appellant's behalf was that the right of retrial remained a conditional and discretionary decision for the Albanian authorities. That submission was rejected by the learned judge. Since his decision, there have been further decisions of this court on the question of rights under Albanian law, Armand Bogdani v Albanian Government [2008] EWHC 2065 (Admin) and Asim Murtati v Government of Albania [2008] EWHC 2856 (Admin).[5]I do not propose to refer in detail to those cases because Ms Nice, who appears today for the appellant, having taken instructions, has accepted that the absence of retrial argument cannot now be pursued in this court. I find her decision entirely understandable. The question of rights on return has been considered in detail in this court. Points have been argued as to the consistency of Albanian law, and the Albanian constitution, with the rights under the European Convention on Human Rights, in particular Article 6.[6]The point now taken is an entirely different one, made without notice to the respondent, the Government of the Republic. Mr Hines, who appears on behalf of the government this morning, submits that the court should not entertain the application, which is made under Article 8 of the Convention. Mr Hines accepts that under section 87 of the 2003 Act it is open to the Magistrates' Court, hearing an application by a government, to consider the consistency of any extradition with existing Article 8 rights. This court is obliged to do so.[7]On appeal, the powers of this court are stated in section 104 of the 2003 Act. Section 104(4) does leave open the possibility of fresh points being raised but the circumstances in which fresh points should be permitted in this court, which have not been taken before the Magistrates' Court, are limited.[8]Ms Nice has done her upmost in the circumstances. I am prepared to entertain the Article 8 application, notwithstanding the lateness with which it is made and the strict steps which courts normally take as to the introduction of fresh evidence on appeal. This is the "last saloon" for the appellant and it appears to me that the court should be prepared to entertain submissions which will ensure that the United Kingdom is not in breach of its Convention duties.[9]The evidence in support of the application is, however, sparse. Ms Nice tells us that the appellant married a woman with British nationality in 2003. He has three stepchildren, her children by a previous relationship, and two children of his own by his wife. We have a letter dated 3rd March 2008, over a year ago, which indicates the ill health of the wife. She had been counselled by a counsellor and concerns expressed in the letter are mainly in relation to the wife's housing position, the appellant then still being in custody as a result of his conviction in this jurisdiction. The counsellor refers to the children, four of whom live with Mrs Buzi on a full time basis. She had struggled on her own for the past year to provide a stable home for her family. Her mental health clearly is fragile. She has a history of mental health difficulties.[10]The second evidence, apart from the basic family structure, is a letter from the appellant himself. Most of the letter is devoted to his concerns about being extradited to Albania and his reservations about the legal system there but, for reasons I have stated, and Mrs Nice's submission to the court, it is not necessary to consider those further. The appellant does add, however, that:
"My extradition will exacerbate the hardships which my family are presently enduring. I am therefore appealing to your humanity [this is addressed to the court] that you refuse the request from the Albanian authorities for my extradition to that jurisdiction."
There is, we are told, an extant deportation order. Moreover, the judge who sentenced the appellant at the Harrow Crown Court made a recommendation for deportation, indicating his view of the seriousness of the offence committed.[11]Having considered the submissions of Ms Nice and the evidence before the court, I am quite unable to conclude that a return to Albania will place the United Kingdom in breach of its obligations under Article 8 of the Convention. A balance has to be struck between such private and family life as the appellant has in this country with the obligations of this country to other states with which it has concluded extradition treaties.[12]In my judgment, such compassionate grounds as have been produced before the court fall far short of the appellant establishing that he is entitled by virtue of Article 8 to remain with his family in this country. I bear in mind also their difficulties, for financial reasons, in visiting him in Albania. It is in my judgment proportionate that the extradition takes effect. I regret that I am unpersuaded by the submission that Article 8 entitles the appellant to remain in this country. For those reasons, I would dismiss this appeal.

MR JUSTICE CRANSTON: I agree.