Mucelli, R (on the application of) v The Government of Albania [2012] EWHC 95 (Admin)

[2012] EWHC 95 (Admin)Case No CO/3542/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/01/2012
Before
LORD JUSTICE TOULSONMR JUSTICE CRANSTON
Between
The Queen on the application of Vullnet MucelliClaimantThe Secretary of State for the Home DepartmentDefendantFair Trials InternationalIntervenerLulzim HoxhajAppellantThe Government of AlbaniaRespondentMarush GjokaAppellantThe Government of AlbaniaRespondent
Henry Blaxland QC and Ben Cooper (instructed by Kaim Todner) for Vullnet MucelliBen Watson (instructed by the Treasury Solicitor) for Secretary of State for the Home DepartmentRachel Barnes (instructed by Fair Trials International) for IntervenerJohn Hardy QC and Ben Lloyd (instructed by Lawrence & Co) for Lulzim HoxhajJohn Hardy QC and Aaron Watkins (instructed by Lawrence & Co) Marush GjokaJohn RWD Jones (instructed by CPS) for Government of AlbaniaHearing Hearing dates: 18-19 January 2011
Judgment

INTRODUCTION

[1]These three cases all concern the extradition of persons to Albania where they have been convicted by the Albanian courts in their absence. Vullnet Mucelli’s case is a judicial review claim against the decision of the Secretary of State for the Home Department (“the Secretary of State”) to extradite him. The cases of Lulzim Hoxhaj and Marush Gjoka are statutory appeals against the decisions of the District Judge to send their cases to the Secretary of State. Those different routes by which the cases have come to this court have legal ramifications, as is explained below. However, the issue in broad terms in all these cases is whether, if these applicants are extradited, they will be entitled to reopen their convictions and obtain a retrial or review on appeal. This is not the first time the issue has been before the courts in Albanian extradition cases. BACKGROUND Mucelli’s judicial review

BACKGROUND

[2]The background to this case is contained in District Judge Evan’s decision of 4 June 2007 and in a judgment of this court of Richards LJ (with whom Aikens J agreed) at [2007] EWHC 2632; [2008] WLR 2437. In summary, on 13 June 1997 Adriatik Zotaj was killed in Tirana, the capital of Albania. He had lived with Mr Mucelli’s aunt. A few days prior to the killing, Zotaj and Mr Mucelli had argued over some gold coins. On the day of the killing, Mr Mucelli arrived at the victim’s block of flats with a large sports bag. He spoke to a number of people on his arrival. He then went inside and some time later shots were heard. One of those present saw Mr Mucelli walking down the stairs placing a sub-machine gun in his bag. Present at the scene was Mr Mucelli’s wife. Criminal proceedings were commenced the same day. Eventually Mr Mucelli was tried in his absence. He was represented by a lawyer at the trial. He was found guilty of murder and sentenced to 25 years’ imprisonment. He was also found guilty of the illegal possession of military weapons and sentenced to one year’s imprisonment. His wife was also tried in her absence but acquitted. In October 1998 the Albanian sentence was declared final.[3]Meanwhile Mr Mucelli had arrived in the United Kingdom with his wife under a false identity and on Greek papers. Some eight years later he was arrested in London pursuant to a provisional warrant for the purpose of extradition proceedings. On 28 February 2007 the Albanian Ministry of Justice issued a formal request for his extradition. In the course of that request it said this:
“[T]he Ministry of Justice guarantees in advance on behalf of the Albanian state and in conformity with the article 504(2) of the Albanian Code of Criminal Procedure: 1. The enforcement of the right for retrial of the subject upon request, in accordance with the Albanian Constitution and pursuant to the articles 147, 148, 449, 450, 453 of the Code of Criminal Procedure of the Republic of Albania…”: see [2007] EWHC 2632; [2008] 1 WLR 2437, [25]. There was a further letter, dated 10 May 2007, confirming that Mr Mucelli could exercise “the right of retrial” within ten days from the moment he was handed over to the Albanian authorities. The request was certified by the Secretary of State the following month. In June 2007 District Judge Evans heard evidence from Mr Mucelli and concluded, inter alia, “I do not believe or accept the defendant’s evidence. Within it there are inconsistencies …The reality is that he has been living a lie for the whole of his time in this country. His Certificate of Naturalisation shows a variant on the false given name, Viez instead of Veiz. His place and country of birth is shown as Decon, Federal Republic of Yugoslavia. He has a criminal record in this country which shows four aliases in addition to the assumed name of Veiz Halili and one false date of birth in addition to the one provided to the immigration authorities.”
The judge sent the request to the Secretary of State, who ordered Mr Mucelli’s return to Albania in July 2007.[4]In November 2007 this court (Richards LJ, Aikens J) dismissed Mr Mucelli’s statutory appeal against the District Judge’s decision on the ground that it was out of time: [2007] EWHC 2632; [2008] 1 WLR 2437. I return to that judgment below. In mid January 2008 Collins J and Ouseley J refused Mr Mucelli’s application for habeas corpus. In early 2009 the House of Lords dismissed an appeal against this court’s decision in the statutory appeal: [2009] UKHL 2; [2009] 1 WLR 276. On 25 June 2009 it refused permission for leave to appeal against the decision in the application for habeas corpus.[5]Mr Mucelli’s representatives then wrote to the Secretary of State informing him that they had received a witness statement from Mrs Bogdani, dated 12 June 2009. As is explained later in this judgment Mr Bogdani had been convicted in Albania in absentia, come to this country and been extradited back to Albania. In it Mrs Bogdani complained that her husband had not received a retrial on his return. The Secretary of State made enquiries on the basis that her extra-statutory jurisdiction under the European Convention on Human Rights (“ECHR”) may be engaged. There were responses from the Albanian authorities. In light of these, the Secretary of State upheld the existing order for the Mr Mucelli’s extradition on the basis that his return would not be incompatible with his ECHR rights. Mr Mucelli issued his claim for judicial review against that decision in March 2010. Blake J refused permission but Sullivan LJ granted it on a renewed application, adjourning the matter so the Secretary of State could obtain evidence in response to Mr Mucelli's evidence.[6]In early February 2011 Arben Brace, director of the department of jurisdictional foreign relations in the Albanian Ministry of Justice wrote to the Secretary of State (“the Brace letter”). This followed the decision in R (on the application of Bulla) v Secretary of State for the Home Department [2010] EWHC 3506, considered below. The letter repeated the assurance given in Mr Mucelli’s case of a right of retrial on return. Under the side-heading, “The practical operation of the procedures”, the letter stated that if Mr Mucelli wished to exercise his right to a retrial he must apply on return to the Supreme Court which, “will confirm that Mr Mucelli is entitled to a retrial by virtue of the guarantee given by the Albanian Ministry of Justice. The Supreme Court will therefore repeal the decisions of the first instance court and the appeal court, and send the case back to the first instance court for a re-trial”. Following the Brace letter the matter was delayed during 2011 as the parties obtained further evidence of the legal position in Albania. I return to this evidence below.

Hoxhaj’s appeal

[7]Mr. Hoxhaj was accused of offences arising from an incident on 22 March 1997, when he was a private guard at an oil refinery in Albania. There was an argument, and the victim was killed with a submachine automatic weapon. The proceedings in Albania were somewhat protracted. A decision of the First Instance Court of Fier on 28 August 1998 was overturned by the Appeal Court of Vlora and a retrial ordered. On 28 January 1999, the District Court of Fier convicted Mr Hoxhaj of weapons offences. On 6 July 1999, the Appeal Court of Vlora partly upheld that decision. Subsequently, the Albanian Supreme Court overturned both the decision of the District Court and of the Appeal Court. The case was remitted to the District Court of Fier. On 5 July 2003, it found Mr Hoxhaj guilty of murder, attempted murder, and the weapons offences. An aggregate sentence of 23 years’ imprisonment was imposed. The Appeal Court of Vlora upheld that decision in September that year. On 20 July 2004, the Supreme Court upheld the decision of the Appeal Court. Mr Hoxhaj was represented by a lawyer appointed ex officio. In 1999 Mr Hoxhaj came to the United Kingdom under a false identity and claimed asylum as a Kosovan.[8]There was a letter from the Albanian authorities to the United Kingdom authorities dated 27 January 2011 transmitting “information and guarantees” about Mr Hoxhaj. On 17 February 2011, Mr Hoxhaj was arrested pursuant to a provisional arrest warrant. At an initial hearing the court ordered that Albania should submit its full extradition request within the week. That was done. There was an Albanian document entitled “supplemental guarantees granted by the Albanian State” dated 22 February 2011. It read that:
“pursuant to article 3 of the Second Additional Protocol of “European Convention on Extradition” and article 504/2 of the Criminal procedure Code, article 51 of Law No 10193 dated 3.12.2009 “On Jurisdictional Relations with Foreign Authorities in Criminal Matters”, the Ministry of Justice communicates the following supplemental guarantees on observance of the right for retrial of the subject because of his trial in absentia, previously sent by our letter no 452/11/S.C dated 27.1.2011. We emphasis that supplemental guarantees are the same as those submitted in Mucelli’s defence case in the High Court of the United Kingdom.”
In particular, referring to the Albanian Supreme Court Decision No. 812 dated 17 September 2010, Mece, the document stated: “[W]e expect that the citizen Lulzim Hoxhaj alias Hoxhaj be relied upon article 450 regarding his right to retrial” (sic). The document concluded with a guarantee of a fair trial given Albania’s adherence to the ECHR and the supremacy of that in Albanian law under the constitution.[9]The extradition hearing, fixed to commence on 15 March 2011, eventually took place after it had been adjourned on a number of occasions so that both parties could prepare. On 3 June 2011 District Judge Tubbs gave her judgment in the case. She accepted that Mr Hoxhaj had not deliberately absented himself from his trial in Albania when he was convicted in his absence. On the basis of the consolidated response and the supplemental guarantees given by the Albanian government she was satisfied to the criminal standard that Mr Hoxhaj was entitled, under Article 450 of the Albanian code of Criminal Procedure (“CCP”), to an Article 6 compliant retrial on his return to Albania. She held that as a result of Mece the situation had moved on from that considered in R (on the application of Bulla) v Secretary of State for the Home Department [2010] EWHC 3506. The judge sent Mr Mucelli’s case to the Secretary of State for a decision whether he ought to be extradited. On 12 July 2011, the Secretary of State made an order for the Mr Hoxhaj’s extradition. Pursuant to section 103 of the Extradition Act 2003 Mr Hoxhaj appeals the judge’s decision.

Gjoka’s appeal

[10]On 11 December 2001 Mr Gjoka was convicted in absentia by the District Court of Lezha of murder and the illegal possession of military weapons. He was sentenced to 20 years’ imprisonment. The prosecution arose from an incident on 21 May 1999 when there had been an altercation with the victim stemming from a land dispute. The decision was upheld by the Appellate Court of Shkodra in May 2002. There does not appear to have been any further appeal. As with Mr Hoxhaj, Mr Gjoka was represented by a lawyer appointed ex officio. The Albanian authorities sought Mr Gjoka’s extradition after he had come to the United Kingdom. Their document in his case, entitled “supplementary guarantees”, dated 24 February 2010, mirrored that in Mr Hoxhaj’s.[11]Mr Gjoka’s case was heard before District Judge Tubbs at the same time as that of Mr Hoxhaj. Her reasons in Mr Gjoka’s case reflect those in the Hoxhaj decision. She also sent Mr Gjoka’s case to the Secretary of State on 3June 2010. In both appeals the sole issue is whether the District Judge was right to conclude that the appellants would be entitled to a retrial on surrender to Albania. As in the Hoxhaj case, there is no dispute that Mr Gjoka was convicted in his absence and that he did not deliberately absent himself from the trial. THE ALBANIAN LAW Constitution and legislation

THE ALBANIAN LAW

[12]Albania is a contracting state to the European Convention on Human Rights. Article 17.2 of the Albanian Constitution provides specifically that the limitations of rights and freedoms under the constitution cannot infringe Convention rights. Article 33 of the constitution confers a right to be heard before judgment, although a person who evades justice does not benefit from this right. Article 43 of the constitution confers a right to appeal a judicial decision to a higher court, except when the constitution provides otherwise. Article 116.1 sets out a hierarchy of norms:a. the Constitution;b. ratified international agreements;c. the laws; andd. normative acts of the Council of Ministers. Under Article 122 ratified international agreements constitute part of the internal juridical system, are directly applicable in Albania if self-executing, and have superiority over incompatible domestic laws.[13]Albania is a signatory to the European Convention on Extradition, including the Second Additional Protocol, which contains a guarantee of retrial in Article 3. “Article 3 - The Convention shall be supplemented by the following provisions: ‘Judgments in absentia When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited.”” Albania ratified the Convention and Additional Protocols by Law 8322 of 2 April 1998.[14]On 3 December 2009, the Albanian Assembly enacted Law No 10 193 “On Jurisdictional Relations with Foreign Authorities in Criminal Matters”. It came into force the following year. Article 51 is entitled “guarantees in connection with the extradited person”. Article 51.4 provides for the review of a conviction in absentia against an extradited person where the Ministry of Justice has given a guarantee to that effect to the requested state: 51.4: “A final decision rendered against the extradited person by the local judicial authorities in his absence may be reviewed at the request of the extradited person, if the Minister of Justice has given such a guarantee to the requested State. The request for review is submitted within 30 days from the arrival of the extradited person in Albanian territory and its examination follows the rules of the Code of Criminal Procedure”.[15]The Albanian Code of Criminal Procedure (“the CCP”) contains various fair trial rights. Thus Article 48 gives a defendant the right to choose a lawyer, although in the absence of such a choice it may be made by a relative: Article 48.3. More important for present purposes is that Article 147.2 CCP confers the right on persons where decisions have been rendered in their absence to request the renewal of the time limit to appeal. 147.2 “If the decision was rendered in his absence, the defendant may request the reinstatement of the time-limit to appeal when he proves that he has not been notified of the decision.” Article 147.3 continues that that request must be within 10 days from the date when the person has been actually notified of the act which makes the retrial of the case possible. Article 148 then provides for the effects of a reinstatement of a time-limit. 148.1 “The court which he has decided the reinstatement of the time-limit, upon request of the party and so far as it is possible, orders the repetition of the operations in which the party was entitled to participate. ”[16]Under Article 410 CCP a defendant may appeal a conviction personally or through his defence lawyer. Article 410.2 provides that, if a defendant has been sentenced in absentia, a defence lawyer may only appeal under the defendant’s power of attorney. Articles 449–461 of the CCP govern the application for a review of a final judgment. Article 450 sets out four instances when a person may request the review of a decision:
“(a) when the facts of the grounds of the decision do not comply with those of another final decision; (b) when the decision has relied upon a civil court decision which has subsequently been revoked; (c) when following the decision new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and (d) when it is proved that the decision was rendered as a result of the falsification of judicial acts or evidence considered by law as a criminal offence.”
Appeals are dealt with in Articles 422-430 CCP. Under Article 451 the accused or the prosecutor may file a request for a review in accordance with the grounds of review in Article 450.

Case-law

[17]There was a heavy concentration during the hearing before us on three cases decided by Albania’s highest courts, in chronological order Decision No 30, 17 June 2010, Spahaj (“ES”), a decision of the Constitutional Court; Decision No 812, 17 September 2010, Mece, a decision of the Supreme Court; and Decision No 9, 19 January 2011, Bogdani, another decision of the Supreme Court. There are translations of these three decisions. In addition the decisions are explained in communications from the Albanian Ministry of Justice, notably in the Brace letter of early February 2011, and in a document dated 22 December 2011, where the Ministry proffers answers to questions posed by the Secretary of State in relation to Mr Mucelli’s case. There is also the expert opinion of Professor Eliva Kokona, dated 13 January 2012, obtained by Mr Mucelli’s representatives. Professor Kokona is a distinguished Albanian lawyer, whose experience includes periods spent at the European Court of Human Rights and the Council of Europe.[18]In ES the defendant was convicted in 2002 of certain sex crimes. The trial in Albania was conducted in his absence. His father appointed a lawyer who in 2004 took unsuccessful appeals against the conviction to both a Court of Appeal and the Supreme Court. Eventually ES was extradited from Spain. On his return to Albania he sought in 2007 to re-establish the time limit under Article 147 CCP to appeal to the Supreme Court against the 2004 Court of Appeal decision regarding his conviction. The matter reached the Constitutional Court. ES argued that he had the constitutional right, enshrined in Article 43 of the Constitution, to appeal a conviction after the statutory period had been re-established. His father’s appointment of a lawyer, who conducted the 2004 appeal when he was abroad, did not expend his right of appeal because the right belonged inalienably to him.[19]The Constitutional Court reviewed its previous jurisprudence and that of the European Court of Human Rights on the right of appeal by a defendant tried in absentia. From the latter it concluded that it was incumbent under the ECHR for states to attempt to notify defendants about criminal proceedings against them: [34]. It followed that the Constitutional Court had to reinterpret its own case-law with regard to the right of defendants tried in absentia to have the statutory period in which to appeal re-established: [37]. It was essential for defendants to be aware that criminal proceedings against them had begun and that they had voluntarily renounced participation in them: [38]. The court then said this: 43.“In the light of that set out above, the court considers that in implementing article 46 [ECHR] the obligation arises … to allow citizens, who had effectively not been aware of criminal proceedings against them, to have the right to have court proceedings re-opened in keeping with article 147 of the Code of Criminal Procedure. The court considers that this obligation arises in the case of all judicial authorities at any level including the referring court, which is obliged to apply internal legislation in keeping with the Constitution and the ECHR.” The court held that the rights of defendants to participate in their trial, and to select their representatives, were individual constitutional rights, which could not be transferred to family members: [44]. The family could only select a lawyer if they were expressing a defendant’s desire not to participate in the trial and were in contact with him: [45]-[46]. Interpreting the provisions of the CCP in this manner meant that they were constitutional.[20]In her report Professor Kokona explains that following the ruling of the Constitution Court the Supreme Court rejected ES’s appeal on the basis that the Constitutional Court’s ruling in his case had recognised the possibility that a lawyer chosen by the defendant’s family could submit appeals for him, even without his consent. At any point a defendant could avoid this outcome by choosing a lawyer of his own. According to Professor Kokona the Supreme Court relied on its previous ruling in ES’s case in 2005, even though that appeal had been taken not by him, but by the lawyer his family appointed. The Court “gave much importance to the reasons for the dismissal given in its 2005 decision, which according to the court reflected the shortcomings on the merits of the request rather than those related to the procedure.” What Professor Kokona says in her report seems confirmed by a note she prepared during the hearing, summarising the Supreme Court’s judgment.[21]After Professor Kokona first raised the ES case, the Secretary of State asked the Albanian Ministry of Justice whether ES had received a retrial, if not, why not, and if not, how could they maintain that Mr Mucelli would. The answer given in the 22 December 2011 document is that ES was extradited in 2005 and since then cooperation between Albania and the United Kingdom, the Albanian legislation and judicial practice in Albania have all changed.[22]Mece was relied on by the Albanian authorities and by District Judge Tubbs in her decisions in the cases of Mr Hoxhaj and Mr Gjoka. There the Supreme Court of Albania, Penal College, considered a case where Spain’s High Court had ordered Mece’s extradition on an assurance given in April 2007 by the Albanian Ministry of Justice that he would be granted a retrial. (There is no reason to think that that assurance differed from that in Mr Mucelli’s case, given around the same time). Mece had been tried in his absence and the case had been unsuccessfully appealed to the Supreme Court. On return to Albania, Mece sought a review of the previous conviction decisions by invoking Article 450 CCP. Initially the Supreme Court rejected the request, but in April 2010 the Constitutional Court held that that decision of the Supreme Court was incompatible with Albania’s constitution and international law. The case returned to the Supreme Court.[23]In its September 2010 judgment the Supreme Court referred to Article 3 of the Second Additional Protocol to the European Extradition Convention and to Article 51 of Law No 10 193. Given those provisions, a person had a right to have the decision reviewed when the Minister of Justice gave a guarantee to that effect to the requested state. The court held:
“It should be said that legal criminal procedure in a number of European countries does not recognise the system of trial in absentia for offences categorised as crimes; this consequently obliges the countries concerned, to provide – towards the individual it’s been asked to extradite – the same guarantee in prosecuting the case, as in the case of granting him the right to have his case heard by an independent and impartial court.”
The Court continued that Mece’s case did not fall within the words of Article 450 CCP. However, there was the supremacy in the Albanian Constitution of international treaties over national law, coupled with the European Convention on Extradition and Law No 10 193. Thus in cases where the Albanian state had given a requested state a guarantee, extradited persons should be granted the procedural possibility to exercise their right of defence against the charges raised by the prosecution. Thus the Supreme Court upheld Mece’s request for a retrial before a District Court. There was no evidence before us as to whether that had occurred.[24]The letter of February 2011 from the Albanian Ministry of Justice, the Brace letter, explains that the Supreme Court decision in Meceis, “binding on all lower courts and would operate with exactly the same effect in Mr Mucelli’s case”. The letter goes on:
“There is no basis to distinguish Mr Mucelli’s circumstances from [Mece], namely the right to a retrial enjoyed by Mr Mece following his extradition from Spain”
. The letter refers to Law No. 10 193 of 3 December 2009. It asserts that the Supreme Court in Mece was interpreting Article 450 of the Criminal Procedure Code in a manner which afforded those extradited on the basis of a conviction in their absence a right to be retried on their return to Albania if the Albanian Ministry of Justice had given an undertaking to that effect to the foreign extraditing courts or authority. In the letter the Albanian Ministry of Justice explains that Article 147 of the Albanian Criminal Code will also afford Mr Mucelli an effective right to a retrial as well, again in the light of recent decisions on the Albanian courts, including the decision of the Constitutional Court in ES.[25]The letter dated 22 December 2011 - where the Albanian Ministry of Justice answers questions the Secretary of State had posed – also asserts that the Mece decision changed the law in Albania and adds that Mece has been applied since, in Bogdani. Although Albania was a civil law system, the Ministry “express the belief that this decision [i.e. Mece] will be followed by other decisions of the judicial practice under the same application and interpretation of the law”.[26]In her report Professor Kokona is not critical in the same way of the Mece decision as she is of ES. Her concern is more that, as a matter of practice, it cannot yet be said that the retrial of extradited persons tried in their absence is a formality. There is the conflicting use of Article 147 CCP in ES and of Article 450 CCP in Mece. However, she concedes that the Bogdani judgment and two other judgments in the Supreme Court in 2011 were positive steps.[27]Bogdani’s case in the Albanian Supreme Court in early 2011 followed his extradition from this country. As explained later in this judgment he was extradited in 2008 after the Albanian Minister of Justice gave a guarantee to the Secretary of State that he would be retried on return. On Mr Bogdani’s return to Albania he was initially denied a retrial, which was what was in Mrs Bogdani’s statement, forwarded to the Secretary of State, and referred to earlier. In a number of letters the Albanian Ministry of Justice have stated that the reason for this was that Mr Bogdani failed to file his application within time to re-instate the time limit under Article 147. In any event, Mr Bogdani subsequently appealed the decision to refuse him the right to re-instate the relevant time limit and his appeal was allowed. He then applied to the Supreme Court for a retrial pursuant to Article 450 CCP. After a further procedural hitch Mr Bogdani’s application was heard and, as I have said, judgment was given in early 2011. That judgment granted Mr Bogdani a retrial. The Court said:
“Following the newly established judicial practice [i.e. Mece], the Criminal Section of the Supreme Court deems that the request submitted by the sentenced person Armando Bogdani must be accepted and the judicial decisions taken against him during the review of the case in merits must be annulled by bringing the case for retrial. The legal circumstances reviewed by this Section, in the trial in question, are similar to the ones of the case against the national Florian Mece.”
The judgment then tracked the discussion in Mece, canvassing Article 3 of the Second Additional Protocol of the European Extradition Convention, Article 51 of Law No 10 193, Article 450 CCP and the supremacy of international agreements in Albanian constitutional law.[28]There is a report dated 30 September 2011 from Maria Qirjazi, the president of the Court of Appeal at Gjirokastër, following the Supreme Court decision. She explains that her court is retrying Mr Bogdani. In an interim decision the court had decided to conduct a partial judicial investigation, under the CCP, into the verification of Mr Bogdani’s alibi defence and the claims his lawyer had made. Judge Qirjazi sets out the various steps the investigation has taken so far. Separately the Albanian Ministry of Justice has undertaken to inform the Secretary of State when the process in Mr Bogdani’s case is concluded.[29]Professor Kokona sees Bogdani as an example of the uncertainty surrounding the position of an extradited person’s request for a retrial after conviction in absentia. That seems to be because of what I described as the procedural hitch, when the Supreme Court rejected the first application. The Albanian Ministry of Justice have subsequently excused that because the application was made by a lawyer chosen by Mrs Bogdani, not by Mr Bogdani himself. Professor Kokona also refers to an unsuccessful application by one of Bogdani’s co-defendants. However, elsewhere in her report Professor Kokona acknowledges Bogdani as a “positive step”. LEGAL FRAMEWORK Legal basis of applications

LEGAL FRAMEWORK

[30]The legal framework for our decision in these three cases begins with the basis on which they are advanced. Mr Mucelli’s application to this court is for judicial review of the decision of the Secretary of State. As a public authority within the meaning of the Human Rights Act 1998 she must withdraw an extradition order where there has been a material change of circumstances or supervening event since the conclusion of the substantive statutory extradition proceedings which is such as to render the extradition of the individual concerned incompatible with his Convention rights: see McKinnon v Government of USA [2007] EWHC 762 (Admin), [61].[31]The issue for us is whether Mr Mucelli’s extradition would be incompatible with his Convention rights and, in particular, his fair trial rights under Article 6. Thus we must determine whether there are substantial grounds to believe that there is a real risk that he will suffer a flagrant denial of justice on his return to Albania through those rights being denied: see R v Special Adjudicator (Ullah) [2004] UKHL 26; [2004]2 AC 323: R (on the application of Gary Mackinnon) v Secretary of State for the Home Department [2009] EWHC 2021, [66]. If there is no right to retrial for Mr Mucelli that would be a flagrant denial of his Article 6 rights: Stoichkov v Bulgaria [2007] 44 EHRR 14, [54]-[56], Sejdovic v Italy [2006] ECHR 56 581/50.[32]As a matter of law, the statutory appeals of Mr Hoxhaj and Mr Gjoka raise a different issue. Section 85 of the Extradition Act 2003 is engaged. It sets out a three-stage procedure for dealing with extradition requests in cases where convictions are recorded in absentia: first, the judge must decide whether the defendant was absent from his trial: s. 85(1); second, whether he deliberately absented himself: s. 85(3); and third (if the judge finds the defendant did not deliberately absent himself from his trial) whether under the law of the requesting state the defendant “would be entitled to a re-trial or (on appeal) a review amounting to a retrial”: s. 85(5). The retrial or review must be such that the person would have the rights conferred under Article 6(3)(c) and (d) of the Convention. In Bohm v Romanian Judicial Authority [2011] EWHC 2671, Irwin J held that in relation to the third issue, if the answer was “no” or “perhaps” or “in certain circumstances”, that would not be enough to meet the statutory test and the defendant in those circumstances must be discharged: [5]. In other words, we must be sure that the right to a retrial or a review on appeal exists.

English case law on Albanian extraditions

[33]This court has considered a number of extradition requests from the Albanian authorities in relation to persons convicted by an Albanian court in their absence. All have arisen as statutory appeals and concerned section 85(5) of the Extradition Act 2003. These cases are an important backdrop to our decisions in the present applications, since in some of them the extradition of those convicted in absentia in Albania has been refused.[34]That was the outcome in Government of Albania v Bleta[2005] EWHC 475; [2005] 1 WLR 3576, where the court upheld the District Judge’s decision to discharge the defendant. The extradition request from the Albanian authorities provided an “official guarantee” for the retrial of Bleta “with reference to the present Albanian criminal legislation…” In their letter the Albanian authorities referred to a number of articles in their Constitution and the Criminal Procedure Code. However, the defendant submitted that Article 147 CPC only contained the possibility of an appeal. That was conditional and fell short of the required entitlement to a review amounting to a retrial. Article 427 on appeals did not provide an entitlement to a retrial. Pill LJ (with whom Cox J agreed) held that, despite making all allowances for matters such as translation difficulties, and despite accepting the good faith of the guarantee, there were “too many open ends and insufficient clarity” to be able to conclude that section 85(5) was satisfied. Signatures of the European Convention on Human Rights or the UN covenants, in themselves, did not amount to sufficient assurance in the circumstances: [26].[35]As mentioned earlier Mr Mucelli’s statutory appeal against the District Judge’s decision was dismissed on the ground that it was out of time: [2007] EWHC 2632; [2008] 1 WLR 2437, that decision being upheld by the House of Lords: [2009] UKHL 2; [2009] 1 WLR 276. In the course of its judgment this court also considered the merits of the appeal. It applied the decision in Bleta. The guarantees provided by the Albanian Ministry of Justice were insufficient. Richards LJ (with whom Aikens J agreed) said this: “[E]xamination of the detailed provisions of the Code of Criminal Procedure to which the letter then refers casts real doubt on the effectiveness of the guarantee. Article 147 appears to provide for the possibility of reinstating the time-limit for an appeal, upon the request of a defendant who has been tried in his absence. But the decision whether to grant such a request is that of the court and there is no obvious mechanism whereby the government can require the court to accede to the request (nor would one expect there to be one if the independence of the judiciary is respected). Moreover article 450 lays down the grounds on which a “review” may be requested, none of which could reasonably be said to be engaged on the facts of this case; and although it is not clear whether that article governs consideration of a request under article 147, the reference to it in the Ministry’s letter suggests that it does”: [26] Richards LJ continued that the position was too uncertain to enable the court to conclude, on the strength of the guarantee provided, that the appellant would be entitled to a retrial on his return. “There are still, in the words of Pill LJ in Bleta, ‘too many open ends and insufficient clarity’”: [27].[36]But in Bogdani v Government of Albania [2008] EWHC 2065 (Admin) Pill LJ (with whom Rafferty LJ agreed) upheld the decision of the District Judge that on return to Albania the appellant would be entitled to a retrial or review on appeal. The District Judge had a letter from the Albanian Minister of Justice relating to Article 147.2, confirming that an extradited person could exercise the right under it within 10 days from the date of being handed over to the Albanian authorities. The Ministry of Justice “was legally entitled to decide on respecting the conditions imposed by the foreign state that in this case relates to the right of retrial of the subject tried in absence”: [29]. His Lordship set out part of a further letter signed by the same minister on 26 June 2008: “As presented by the normative remedy made in terms of the article 147 of the Code of Criminal Procedure and the jurisprudence developed for that article by the Albanian courts, the word group ‘given notice of the act’ is deemed the moment of the signature of the record on the execution of the judicial decision on the part of the defendant and the Albanian police representatives. This record is signed immediately as the defendant enters the Albanian territory where he is informed no [sic] the judicial decision taken against him”: [32].[37]However, in R (on the Application of Bulla) v Secretary of State for the Home Department [2010] EWHC 3506 (Admin) Sullivan LJ reverted to the approach of Bleta and Mucelli. (Despite the designation of the case, it was a statutory appeal, not a judicial review). The District Judge had ruled that he was bound to follow the decision in Bogdani. On appeal Sullivan LJ noted the difficulties of interpretation in extradition cases, “but making all due allowances for such difficulties, it does seem to me that a very great deal has been lost in the process of interpreting the responses of the Albanian government in this case”: [12]. The expert report for the appellant was to the effect that they would not have an automatic right to retrial: [13]. The Albanian authorities had explained the effect of Article 147 CCP. Counsel for the Albanian Government accepted that the position as regards retrial on return was not unequivocally clear: [15], [21]. It appeared to depend on representation at trial and whether a conviction had been appealed to the Court of Appeal and the Supreme Court: [16].[38]But Sullivan LJ said that he could not be sure that that was an explanation of the working of Article 147: [17]-[18]. The position was somewhat more nuanced than had previously been assumed on the basis of the material that was before the Divisional Court in Bogdani: [19]. On the material available the position had reverted to that which the court found to be the case in the Bleta decision, so that “there are simply too many loose ends”: [22]. That Albania was a signatory to the ECHR, and that the ECHR has pre-eminent status in Albanian law, were not sufficient to demonstrate that the appellant would receive a retrial as a matter of right: [25].

ECHR jurisprudence on Albanian extraditions

[39]In her report, Professor Kokona canvasses the European Court of Human Rights jurisprudence as to whether there are effective remedies within Albania on the return of convicted persons. She mentions the case of Sulejmani, which is pending before the Strasbourg Court. There are also two recent decided cases of note, Laska and Lika v Albania,20 July, 2010, Nos. 12315/04 and 17605/04, and Shkalla v Albania, 10 May2011, No.2866/05.[40]In Laskathe court had first to consider whether the complaints were admissible or not under Article 35.1 ECHR for non-exhaustion of domestic remedies. It reiterated its previous ruling that an application for retrial or similar extraordinary remedies could not, as a general rule, be taken into account for that purpose: [50]. Since the review of a final court judgment pursuant to Article 450 CCP constituted an extraordinary remedy, the Court considers that the applicants were not required to exhaust it: [51]. Having decided that the cases were admissible the Strasbourg Court then found serious breaches of the applicants’ fair trial rights under Article 6 ECHR. It held that when an applicant has been convicted in breach of his rights as guaranteed by Article 6 he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. The most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings: [74]-[75]. Returning to the limited grounds of review in Article 450, the court stated: “The Court notes that the respondent State’s criminal legal system does not provide for the possibility of re-examining cases, including reopening of domestic proceedings, in the event of this Court’s finding of a serious violation of an applicant’s right to a fair trial. It is not for the Court to indicate how such a possibility is to be secured and what form it is to take”: [76][41]Shkallawas a case where the applicant had been tried in absentia but surrendered voluntarily to the Albanian authorities. He filed a complaint to the Constitutional Court which it had rejected as being out of time. For reasons which need not concern us the Strasbourg Court held that there had been a violation of the applicant’s Article 6 rights in that regard. The Strasbourg court then turned to his further submissions, including one that the unfairness in his criminal proceedings could not be remedied by a request under Albanian law for review of a final judgment. First, it considered the government’s submission, that the application was inadmissible because Shkalla had not exhausted domestic remedies as required by Article 35.1 ECHR. The court referred to its decision in Laska on this point: [57]-[58]. Noting Article 147 CCP, and the possibility under it of bringing an out of time application, the court stated that Albania had not adduced any domestic case-law as to the application of that article in practice: [59]. Given the domestic case-law on applications for leave to appeal out of time, when an applicant has been represented on appeal by a lawyer appointed by the family, the court concluded that it could not be said that that would have offered a realistic prospect of success: [60]. So these possibilities did not meet the Article 35.1 ECHR requirement.[42]The court then referred not to Mece but to the decision of the Constitutional Court in ES: “It would appear that an appeal to the Constitutional Court is an effective remedy for challenging a conviction in absentia”: [61]. Because the Constitutional Court in Shkalla had rejected the applicant’s appeal as out of time, however, the Strasbourg Court went on to conclude that in the instant case it was not precluded by the non-exhaustion principle from considering the merits of the application. It went on to hold that there had been a violation of his Article 6 rights on account of the unfairness of the proceedings and his conviction in absentia: [76].[43]In my view neither decision bears directly on the cases before us. Laska preceded Mece. In Shkalla the Strasbourg Court held, on the basis of ES, that an appeal to the Constitutional Court was an effective remedy for challenging a conviction in absentia. It should also be noted that in Shkalla, the applicant had voluntarily surrendered to the Albanian authorities and thus not pursuant to any guarantee they had given to an extraditing state. THE PRESENT CASES Mr Mucelli’s submissions

THE PRESENT CASES

[44]On Mr Mucelli’s behalf, Mr Blaxland QC submitted that he did not have a practical and effective right to a retrial if extradited to Albania and that his right to a fair trial under Article 6 ECHR was not guaranteed. The assurances given by the Albanian authorities, that retrial guarantees must be adhered to under Albanian law, carried little weight. The language and content was unclear. As regards statutory law Article 147 CCP merely provides for the extension of the time limit in which to appeal, and even this right is qualified if a defendant has been represented at trial and appeal. Of itself it does not provide a remedy for a defendant convicted in absentia. Article 450 CCP does not provide for a right to a retrial for a defendant convicted in absentia, even where the defendant was unaware of the proceedings leading to the conviction. As to Article 51.4 of Law No 10 193, it states no more than the final decision ‘may be reviewed’ and, crucially, that such review ‘follows the rules of the Code of Criminal Procedure’. Given that there is no right to a retrial under the CCP, Article 51.4 provides no such right. The assertion of the Albanian government that ‘Albania launched the legal reform of 2009 for rendering the right to a retrial almost automatically’ is not reflected in the wording of the relevant article.[45]Mr Blaxland QC continued that the judgment of the Constitutional Court in ES did not address the problem of the limitations on the right of appeal imposed by Article 450. As to what happened in ES Professor Kokona had established that ES’s appeal was eventually dismissed by the Supreme Court. Notwithstanding the Constitutional Court’s judgment, therefore, the issue of whether a defendant tried in absentia has any right of appeal where he has been represented by a family appointed lawyer continues to be uncertain. As for Mece, there are a number of unanswered questions about its outcome. Given the proceedings in ES’s case it should not be assumed, without evidence, that Mece has or will necessarily be granted a retrial. The Albanian authority had not provided that evidence. What was occurring in the Bogdani case was not a de novo hearing. The fresh evidence Mr Bogdani claimed to have about his alibi was being considered as part of an overall appellate review.[46]It is now clear, submitted Mr Blaxland QC, that when this court dismissed Bogdani’s appeal it did so on the basis of a misunderstanding. There was at that time no effective right to a retrial in Albanian law. The situation has not been put right by Law 10 193 of 3 December 2009 or the decisions of the Supreme Court in Mece and Bogdani. What was needed were amendments to the CCP. Further, there was a lack of clarity about which procedural provision applies for the purpose of the time-table for lodging an appeal. Under Article 147.2 CCP the claimant would have 10 days, but the period is 30 days in Article 51.4 of Law 10 193. There was no legal aid to apply to the Constitutional Court, yet having a lawyer was a prerequisite to an application. There were endemic delays in the criminal justice system in Albania, Bogdani being an example. In the circumstances, there was a real risk that Mr Mucelli would not be provided with a practical and accessible right to a retrial and it would, as a consequence, amount to a violation of his rights under Article 6 ECHR for him to be extradited.

The case for Messrs Hoxhaj and Gjoka

[47]On behalf of Mr Hoxhaj and Mr Gjoka, Mr Hardy QC’s submissions were crisp and to the point. The statutory requirement in section 85(5) of the Extradition Act 2003 was absolute: the District Judge had to be sure that there would be a retrial or on appeal a review on their return to Albania and that had to be compliant with Article 6(3)(c) and (d) ECHR. Despite a significant degree of correspondence between the United Kingdom and Albanian authorities the evidence before the court nowhere contained any unequivocal assertion that either Mr Hoxhaj or Mr Gjoka would enjoy such an absolute and unfettered entitlement, still less that it would expressly guarantee the rights set out in Article 6(3)(c) and (d). The accumulated evidence in the cases demonstrated that the right to a retrial or on appeal a review for a person extradited following conviction in absence in Albania is not automatic but is hedged with contingencies. The “supplemental guarantees” in both cases were supplemental to documents which did not offer any such guarantee. They invoked Mece, but read only that the Ministry of Justice would “expect” a retrial to take place under Article 450 CCP. That was not a clear and unambiguous guarantee. In any event, these appellants did not fall within Article 450. Their appeals should be allowed.

Discussion

[48]The issue for us in each of these cases is whether there is a practical and effective right of retrial, consonant with Article 6 ECHR, if these three applicants are extradited to Albania. In each case the Albanian authorities have asserted that there is that right. The so-called supplemental “guarantees” (tracking the language of Artcile 51 of Law 10 193 of 3 December 2009) by the Albanian Ministry of Justice assert that the right exists. Given the independence of the judiciary the Ministry of Justice could not go further. The language of expectation which Mr Hardy QC underlined is explicable as the expectation that the applicants will apply for a retrial under Article 450.[49]However, mere assertions by the Albanian authorities that there is the right to retrial is inadequate in the light of the history. What is necessary is that these assertions be made good as a matter of Albanian law and practice. In that regard I accept the submissions of Ms Barnes, who appeared for Fair Trials Abroad and who invoked MSS v Belgium [2011] 53 EHRR 2, [353], [359].[50]At the outset I underline the point my Lord, Toulson LJ, made in the course of argument: the court’s assessment of Albanian law and practice must turn on an evaluation of the expert evidence. Toulson LJ drew on his experience in the Commercial Court, where English lawyers were sometimes tempted to offer their own interpretation of foreign law. There, as here, that temptation must be resisted. The obvious reason is that neither the English lawyer nor the English court can have a full understanding of the context of foreign constitutional and statutory instruments or judicial decisions. The experts have that understanding. Their views may be in conflict and the court may have to reconcile them but not primarily through its own interpretation of the foreign law materials.[51]In my view the building blocks for evaluating Albanian law and practice are firstly, that Albania is a contracting state of the European Convention on Human Rights and therefore subject to the jurisdiction of the European Court of Human Rights. The Convention has been explicitly adopted by article 17 of the Albanian Constitution and under Article 122 takes precedence over domestic law. Albania is also a signatory to the Second Additional Protocol to the European Convention on Extradition which provides, as we have seen, for a guarantee of a re-trial in Article 3. There is also the enactment of Article 51.4 of Law No 10 193 of 3 December 2009. All these are a necessary, but not a sufficient, condition for a conclusion as to whether there is a practical and effective right of retrial in Albania.[52]Next, there is the jurisprudence. The ES case is the first of the trilogy of Albanian decisions pertinent to the issue before us. It is clear that that case turned in the Constitutional Court on Article 147 CCP; there is no mention of Article 450 CCP. It established that a person tried in absentia had a right to have his case re-opened, even if he had been represented at trial by a family appointed lawyer. The case then went to the Supreme Court. Professor Kokona makes the point that there is a lack of clarity in the Supreme Court in ES because of the combination of considerations of procedural principle and the factual merits of the case. In other words, as I understand it, the Supreme Court considered the merits of ES’s case and that was at least an element in the court’s decision to refuse his claim. Professor Kokona also explains that there was no evidence in ES of a Ministerial guarantee of a retrial. So despite that distinctly off beam answer the Albanian Ministry of Justice gave in its 22 December 2011 reply to the Secretary of State’s questions about ES, it seems to me that whatever happened in ES is of no relevance to the issues before the court.[53]Mece is a crucial decision. There was a Ministerial guarantee there given to the Spanish court that Mece would have a retrial. On his return to Albania Mece applied to the Supreme Court for a retrial under Article 450 CCP. The Supreme Court in its 17 September 2010 decision held that Mece should obtain a retrial. The Ministry of Justice has explained that Mece changed Albanian law, that it is binding on lower courts and that Mr Mucelli falls exactly within the ruling. Professor Kokona accepts Mece as a positive step, although she points to the conflicting use of Article 147 CCP in ES and Article 450 CCP in Mece. She accepts, however, that Bogdani followed Mece. Mr Blaxland QC contends that there is no evidence about whether Mece has been retried. Even if it is not too late in the day to be advancing that point, the fact is that we do know what happened in Bogdani. To my mind that is determinative.[54]Bogdani followed his extradition from this country consequent on the decision of this court: [2008] EWHC 2065. Applying Mece, the case was sent to the Court of Appeal in Gjirokastër, and we have Judge Qirjazi’s report about how the case is proceeding. Professor Kokona majors on the procedural hurdles and delays in the case, but these are explained by the Ministry of Justice. The crucial point is that the Supreme Court has on at least two occasions held that there is a right of retrial and we have chapter and verse on what happened in Bogdani’s case. There were delays but they have been explained. Mr Mucelli will need to act quickly on return, and he will need a lawyer to make his Supreme Court application. Despite the absence of legal aid in Albania for the purpose, there is no evidence before us that Mr Mucelli will not be able to make a timely application or obtain legal assistance.[55]In my view, the law and practice in Albania is now such that there is no real risk that Mr Mucelli will suffer a flagrant denial of justice on his return to Albania. He is entitled to a retrial of the merits of the case against him. As for Messrs Hoxhaj and Gjoka, I cannot see that the District Judge erred in her conclusion that she was sure that they would be entitled to a retrial or (on appeal) a review amounting to a retrial on their return to Albania. I am fortified in these conclusions because of the history of Albanian extradition attempts. The Albanian authorities must be acutely conscious of the fact that these present cases will be observed carefully when these three persons are extradited. There is also the scrutiny of Albanian extraditions in the European Court of Human Rights, an ongoing scrutiny because, as Professor Kokona explains, the Sulejmanni case is still before that court.[56]I would dismiss Mr Mucelli’s claim for judicial review, the appeals of Mr Hoxhaj and Mr Gjoka.[57]I agree.

Cited in 11 later judgments

and 2 more of the most senior