“260 It is noteworthy that, in the 22 years since the Soering judgment, the Court has never found that an expulsion would be a violation of art. 6. This fact, when taken with the examples… serves to underline the Court’s view that ‘flagrant denial of justice’ is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of art. 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by art. 6 which is fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article…”
“reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition…”
“132... At best for the appellant, there may have been undue influence of one sort or another in criminal cases involving a single judge on matters of procedure. It may be more frequent than this, but there is simply no adequate material upon which it could be held that there are substantial grounds for believing that it exists at such a level as will necessarily involve a flagrant denial of justice in all, or even most, cases. Quite the contrary, most of the material in the reports spoken to is of a very general nature and often simply repetitive of earlier reports by the same or a similar organisation. The court is entirely satisfied therefore that there has been no evidence presented to it, and certainly no cogent or compelling evidence, that there are substantial grounds for believing that the level of corruption in the Albanian judicial system is at the “systemic” level such that it falls into that “extreme” category whereby the removal of anyone to that country would necessarily result in a violation of a Convention right. As will be seen, it is equally satisfied that there are no substantial grounds for believing that there is a risk of the appellant, in particular, being the subject of an unfair trial should he be extradited to Albania. 133 The court was generally impressed by the frankness of Dr Zhilla’s testimony, which was given in a reasonable, measured and balanced fashion. The problem which the court had, in considering certain of his views on the central issue of systemic corruption, was that he was not, and never had been, a practising lawyer or judge in the Albanian criminal justice system. He was also not familiar with the particular situation in Elbasan. Dr Zhilla is not, of course, to blame for this, nor are the appellant’s legal representatives. They attempted to obtain first-hand information from Albanian lawyers working in that system, but, for whatever reason, they were not successful in securing direct testimony to support the appellant’s position. That is important. 134 Dr Zhilla based his view on the extent of corruption in the Albanian judiciary not so much upon the many surveys, which he was referred to, but upon a series of interviews; almost all of which formed the basis of his doctoral thesis. The problem with that is that the assessment of the weight to be attached to his view can only properly be made upon an examination of the facts explored in these interviews and scrutiny of the analysis of the material ingathered. Whilst not suggesting that it was necessary, or even desirable, for the thesis itself to be lodged formally as a production, it is somewhat surprising that the fundamental source of Dr Zhilla’s view was not available in some form to enable it to be the subject of proper judicial scrutiny. The court did have Dr Zhilla’s interesting article ‘Organised crime and judicial corruption in the western Balkans’ (2011) 18 Journal of Financial Crime 387, which offers a fascinating backdrop to Balkan problems… 137 The court was also impressed by the openness of the evidence of Ms Xhaferllari. Where she had the advantage over Dr Zhilla was in her personal experience as a judge and as an inspector of judges in the Albanian criminal, and wider, justice system. The court readily acknowledges that Dr Zhilla could be regarded as potentially more independent that Ms Xhaferllari, given her official role in supervising the judges’ inspectorate within the HCJ system. She might be expected to be partial to the interests of the Albanian state, standing her position. The court noted, in this context, that when she was asked specifically about the actual level of corruption within the judiciary, she became more defensive and guarded in her answers than when answering questions about, for example, the functioning of the inspectorate or the content of governmental or NGO reports and papers. Nevertheless, the court concluded that, notwithstanding occasional reticence, Ms Xhaferllari was answering the questions as honestly and openly as was reasonably possible in the circumstances. She was, throughout her testimony, manifestly on top of the subject matter, notably the general situation of the judiciary in Albania and the facts of the appellant’s case in particular. Not only did Ms Xhaferllari have an in depth knowledge of the workings of the judiciary, stemming from her own work as a judge and from her subsequent appointments with the MoJ and then the HCJ, she had a sound familiarity with the position in Elbasan. She was aware of the working conditions there, the extent of its infrastructural problems and not only the ratings of the individual judges’ evaluations but also the practical consequences of these results. 138. Having carried out the comparison of the testimony of the two principal witnesses, and observed them giving evidence (which both did in almost flawless English), the court has reached the view that, on the essential but limited matters over which the witnesses differed, notably the actual level of corruption in Albania, the evidence of Ms Xhaferllari is to be preferred. The effect of this, as a generality, is that the court does not accept Dr Zhilla’s evidence that the level of corruption in the judiciary of Albania is endemic, nor that it is a permanent, socially acceptable phenomenon. It does accept, as already noted, that the level of perception of corruption in the judiciary amongst the general public is high, as it is in a number of organs of government. It accepts too that a limited number of judges suspect that their colleagues are corrupt in one form or another. It accepts that there has been a history of corruption in a variety of state, or former state, enterprises perhaps stemming from the communist era. However, as Ms Xhaferllari pointed out, if it was a permanent socially acceptable phenomenon, there would hardly be the considerable public outcry about the existence of corruption as there evidently is; nor would there be the repeated political condemnation of corruption as a practice or the substantial media coverage given to allegations of its periodical occurrence, especially within the justice system (eg Puka)… 141 Whilst not dwelling on the details of the many reports, what can be said is that progress of a substantial nature has been made over the last decade. It has not been as rapid or as effective as it might be and, no doubt, there is much work to be done. This has been made clear by the Commissioner following his September visit (supra). Overall, the court agrees with the general optimistic tenor of Ms Xhaferllari’s evidence on the progress which had been made and on the continued endeavours of many in Albania to improve the justice system and to eliminate the risk of corruption occurring, where possible. At the risk of repetition, the fundamental conclusion of the court remains that, although there may well be elements of corruption in the Albanian judicial system (as there may be in those of other signatories to the Convention), there is no proper evidential basis for the conclusion that it is at a systematic or systemic level such that there are substantial grounds for believing that any person being extradited to Albania would risk suffering a flagrant denial of his right to a fair trial. There is, on the other hand, cogent and compelling evidence, which the court accepts, that this particular appellant will obtain a fair trial upon his return to Albania. 142 The court has no difficulty in concluding on the evidence that the appellant will receive a Convention compliant fair trial upon extradition to Albania. In particular, the court heard no evidence whatsoever that an ordinary murder trial, or indeed an ordinary criminal trial of any serious offence, would be affected by judicial corruption. If corruption exists to a substantial degree in the criminal justice system, it is relative to the prosecutions of influential political figures, organised criminal or their respective friends or families. Even then, the court heard no evidence of any instance in which it was thought that an innocent man had been convicted of any criminal offence, far less one which was sufficiently serious to merit the attention of a bench of three, because of his failure to pay a bribe or adopt some other corrupt practice. In particular, it heard no evidence, or even a suggestion from the witnesses, that, as Lord Hope put it (para 28): ‘Unjust convictions may result, just to keep the system going and keep prices up.’ The court was unable to locate any material upon which this statement might have been based.”
“143 The appellant’s re-trial will involve consideration of the evidence by three judges in accordance with a code of evidence and procedure which is subject to the over-arching principle of a fair trial, as enshrined in Article 6. The appellant will be tried by a bench of three. If he wishes to object to a particular judge, he could do so and this would be determined by another judge and the decision would be open to an appeal. The appellant is entitled to choose his own lawyer or, if he is unable to afford one, a lawyer will be appointed by the court and paid for by the state. Although there is a risk that a state appointed lawyer might not be quite as skilled as one paid for privately, he or she would still be competent, having been selected from a list approved by the local law faculty. The appellant will be provided with a copy of the evidence gathered by the prosecutor (in this case from the London Metropolitan Police) and given an opportunity to consider it and prepare his defence. He will be allowed to challenge the evidence against him and to lead evidence from witnesses in his favour. The proceedings in Elbasan, although not taking place in the most salubrious of Albanian courts, will be in public and recorded electronically. In the event of a conviction, the appellant would be entitled to a reasoned decision, which he could appeal to a higher court, perhaps even the Constitutional Court, which has shown itself able to listen to, and sometimes to sustain, appeals based upon the Article 6 fair trial requirement. He could complain about any improper behaviour by a judge to either the MoJ or the HCJ and be assured that his complaint would be investigated. Ultimately, he could take his case to the European Court and seek redress there, if any violation of his article 6 rights were demonstrable. Even if the appellant’s case had not become the subject of particular media and state attention, these protections would exist and, even if they may not operate at all times as efficiently as they might, there is simply no scope on the evidence for an argument that the appellant’s trial might not be fair. In this connection, it is worth repeating that no-one suggested that the outcome of any ordinary criminal trial in Elbasan for a serious crime would be compromised by any form of corruption or that, if it were, such corruption would influence the judges in favour of a conviction. 144 In the appellant’s particular case there would be careful scrutiny by the HCJ inspectorate and the media. The judges would be aware of this and will have seen the action taken in the Puka case. There would, therefore, be effectively no prospect of the appellant’s trial being compromised when the spotlight of the inspectorate and the media was upon it.”
“…there is no general provision which allows the court to hold as proof of fact, merely by their production, the content of reports or other papers emanating from foreign governments, international governments or non-governmental bodies, or academic or research institutions.”
“12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination based upon the evidence before the members of the Tribunal… As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:- (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence.”
“There are simply not the resources for a detailed and reliable determination of conditions in foreign countries to be made on an individual basis on each decision on the application or appeal of persons seeking protection. There are far too many such cases…”
“Even if the resources were available, it would be wasteful to have such an investigation, involving much the same evidence, in every case. There would also be a risk of inconsistent decisions, a consideration that is particularly important in the present context since it follows from a decision that one person requires protection, if correct, that a person in the same situation who has been returned may have risked or suffered ill treatment or worse.”
“65. In its previous pronouncements, GRECO has stressed that judicial independence and the impartiality of judges are fundamental principles in a State governed by the rule of law; they benefit society at large by protecting judicial decision-making from improper influence and are ultimately a guarantee of fair trial. GRECO notes that reform of the judiciary has been a strategic objective of Albania which featured prominently e.g. in the 2007-2013 National Strategy for Development and Integration. Between 2011 and 2013, pursuant to the Justice Reform Strategy and the accompanying action plan, several legislative acts came into force, including notably amendments to the Constitution which limited judicial immunity and the new laws on the High Court and the National Judicial Conference. Nevertheless, on the path to full independence and impartiality, further breakthroughs are yet to be achieved…” “68. As the principle judicial self-governing body, the National Judicial Conference (NJC) plays a pivotal role by electing the nine judges to be HCJ members as well as the judges to be members of its “Ethics, mandate verification and continuous professional development committee”
“The recourse submitted [i.e. the grounds Becka submitted] does not constitute legal grounds that are provided for in Article 432 of the Criminal Procedure Code.”