Ilirian Zeqaj v Republic of Albania [2025] EWHC 1670 (Admin)

[2025] EWHC 1670 (Admin)Case No AC-2024-LON-002487
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/07/2025
Before
LORD JUSTICE POPPLEWELLMR JUSTICE SAINI
Between
ILIRIAN ZEQAJAppellantREPUBLIC OF ALBANIARespondentSECRETARY OF STATEInterested PartyFOR THE HOME DEPARTMENTInterested Party
Joel Smith KC and Louisa Collins (instructed by Dalton Holmes Gray) for AppellantToby Cadman (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: Tuesday 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 2 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is the judgment of the Court.

Introduction

[2]The Appellant’s extradition is sought by the Government of Albania for trial on two counts of murder said to have been committed by him and a co-accused on 26 September 1998 or 26 September 1999 (there being different dates stated in the documents before us). The Republic of Albania is designated a Part 2 Territory under the Extradition Act 2003 (“the Act”). This is the second time the Appellant’s case has come before a Divisional Court in respect of these allegations. The Appellant was first extradited to Albania in 2013 to face trial on these charges, following his unsuccessful appeal against an earlier order for extradition: see Ilirian Zeqaj v. Government of Albania [2013] EWHC 261 (Admin). He was tried for murder but acquitted in 2014. The Appellant then returned to the UK. The prosecutor’s appeal against the acquittal was dismissed in 2015. However the acquittal was quashed in 2017, and a retrial ordered, by the Albanian High Court (also called "the Supreme Court") in 2017 (in appeal proceedings of which the Appellant was not notified). The Government of Albania now seeks his extradition a second time for this retrial.[3]For the reasons given in his judgment dated 21 May 2024 (“the Judgment”), District Judge Zani (“the judge’) decided to send the Appellant’s case to the Secretary of State pursuant to s.103 of the Act, and on 12 July 2024 the Secretary of State made an extradition order. On 11 February 2025, Farbey J granted the Appellant leave to appeal against the judge’s decision on 5 grounds as follows: i) GROUND 1: The judge was wrong to conclude that extradition would not be unjust and oppressive due to the passage of time, pursuant to section 82 of the Act; ii) GROUND 2: The judge was wrong to conclude that the Appellant would not be at real risk of a flagrant breach of his rights under Article 5 of the European Convention on Human Rights (“the ECHR”) rights, as any punishment imposed would be premised on an unfair trial process, pursuant to section 87 of the Act; iii) GROUND 3: The judge was wrong to conclude that the extradition of the Appellant would not involve a flagrant denial of his rights under Article 6 being infringed, as the trial process was unfair, pursuant to section 87 of the Act; iv) GROUND 4: The judge was wrong to conclude that extradition would not result in a disproportionate interference with the Appellant’s rights under Article 8 of the ECHR and those of his family, pursuant to section 87 of the Act. v) GROUND 5: The judge was wrong to conclude that extradition would not result in an abuse of the court’s process.[4]Joel Smith KC, who appears with Louisa Collins for the Appellant (who appeared below before the judge), opened the appeal on the basis that there was a substantial overlap between these 5 grounds. His oral arguments focussed principally on Ground 1 (passage of time and injustice) and Ground 3 (breach of Article 6). Mr Smith accepted that the other grounds of appeal largely stood or fell with his arguments on these grounds. Accordingly, we will focus on those two grounds in our judgment. The Appellant has also applied by Application Notice dated 9 May 2025 to adduce fresh evidence from his lawyer in the Albanian Proceedings.[5]The procedural history of this case is lengthy but the essential argument made on behalf of the Appellant by Mr Smith is that by reason of the significant delay in the prosecution of the criminal proceedings in Albania (particularly since the retrial was ordered in 2017), and the impact of that delay on the fairness of the retrial, extradition would be unjust. Mr Smith argued that a fair trial of the Appellant was impossible by reason of passage of time. Alternatively, Mr Smith argued that, looked at through the “lens” of Article 6, a number of features of the history, in combination, show a flagrant breach of the Appellant's fair trial rights. These are the breach of his right to a trial within a reasonable time, the fact that he was not informed of, or represented by his chosen lawyer at, the Supreme Court hearing in 2017 which led to his acquittal being quashed and an order for his retrial; and the constitution of the Supreme Court which was made up of judges who have all been removed by the Albanian authorities as unfit to hold judicial office.[6]Toby Cadman, Counsel for the Respondent (who also appeared below), seeks to uphold the judge’s decision for the reasons given in the Judgment while accepting that the judge erred in law in certain respects. In particular, he submitted that despite the substantial passage of time a fair trial was still possible and extradition would accordingly not be unjust. Mr Cadman also submitted that the Appellant had not shown a flagrant breach of his Article 6 rights. He sought to uphold the judge's conclusion that the Appellant would be provided with a fair trial within the Albanian legal system, a system the judge described as “robust”.

Factual background and chronology

[7]Given that the core argument on behalf of the Appellant is based on the passage of time since the alleged offences, we will need to describe the procedural history in some detail. Our narrative is based on the Judgment, the unchallenged aspects of the evidence before the Judge, the further information from the Albanian authorities, and the translation of the Supreme Court judgment of 10 May 2017 ("the SC Judgment"). That was the decision which led to the acquittal being quashed; and the SC Judgment is the principal source for a summary of the proceedings and for a record of the evidence given in the domestic courts.[8]The Appellant was born on 28 August 1972. He is now 52. The killings giving rise to the extradition request took place some 27 years ago on 26 September 1998 (but as we have noted on occasion in certain documents the date is said to be 26 October 1999, although nothing is said to turn on this one year difference). It is alleged that the Appellant, with an accomplice, Jetnor Zekaj ("Jetnor"), his cousin or brother, murdered (by shooting) Gramoz Llanaj and Shkelqim Llanaj. The Appellant was 25 years old at that time. The killing is said to have been a revenge killing for the murder by the deceased of Jetnor's young child. It also appears that the events took place in a village in Albania where the witnesses for the prosecution were related to the victims, and the defence witnesses were related to the Appellant and Jetnor.[9]The Appellant arrived in the UK on 21 November 1999. He claimed asylum under a false name but there is no evidence that he was fleeing from justice at this time, and indeed the Judge made a finding of fact below that he was not a fugitive: Judgment [77]. The Appellant says that he made an asylum claim under an assumed Kosovan Albanian name because he was told this would enhance his chances of obtaining asylum in the UK.[10]An arrest warrant was issued against the Appellant in Albania on 7June 2000. On 6September 2002 the Appellant was convicted in the Fier Judicial District Court in his absence on two counts of murder and illegal possession of military weapons. His co-accused, Jetnor, was present at the trial and was also convicted on these counts. We do not have details of the evidence given at this first trial conducted in the Appellant’s absence. It is a fair assumption however that the oral evidence of eyewitnesses who gave evidence at the later trial at which the Appellant was present (see [15] below) also gave evidence identifying the Appellant as one of the shooters at this first trial.[11]In 2005, the Appellant was granted asylum and in November 2006 he was granted British citizenship.[12]On 25 July 2011, the Albanian authorities issued the first extradition request and on 12March 2012 the first extradition hearing took place in the UK. The Appellant argued that he was not deliberately absent from his trial and was not guaranteed a retrial. The District Judge accepted that he was not deliberately absent, but found that he was guaranteed a retrial. His extradition was subsequently ordered. The Appellant appealed to the High Court, on the basis that the District Judge had erred in concluding that he was entitled to a retrial. As we have noted above that appeal was dismissed on 20 February 2013.[13]The Appellant was extradited to Albania on 3 June 2013 and he retained (and was represented throughout the Albanian proceedings) by a lawyer, Genci Gjokutaj ("Mr Gjokutaj"). Mr Gjokutaj provided a witness statement for the proceedings below and gave oral evidence before the judge.[14]The Fier Judicial Court allowed the Appellant to file an appeal against his conviction in absentia on 23 July 2013. On3 December 2013 the Vlora Court of Appeal quashed the conviction of the Appellant for murder and ordered a retrial (called a "readjudication") before a fresh judicial panel. That court also appears to have ordered a retrial of Jetnor.[15]That retrial took place around a year later, on 25 November 2014, before the Fier Judicial District Court. Mr Gjokutaj represented the Appellant. The prosecution relied on the evidence of a Daniela Kalemasi ("Ms Kalemasi"), who was a girl of 14 at the time of the killings. Ms Kalemasi was on the balcony in the house of her grandfather, Neki Llanaj. The deceased men were her uncles. Her evidence at the retrial of the events of some 15/16 years earlier (as recorded in the agreed official translation of the SC Judgment) was:
“...it was on 25 and 26 September 1999. I was at the house of my grandfather, outside on the veranda to the stairs. The house is a slightly raised, one-floor house. I was on the balcony with my grandfather and uncles Gramoz and Shkelqim, it was 10.00-10.30 in the morning. The second cousin Santiliano had committed a murder; he had committed murder; he had killed minor child ... My cousin had his father abroad... My grandfather sent them to the post office to reconcile them ... When my uncles left the house and did not reach even 50 m away, where the other side had staged a plot. Jetnor and Nardi (Nardi refers to the defendant llirjan Zeqaj)... l was on the stairs, I heard gunshots and saw the defendants shooting at the victims. Nardi had a machine gun; Jetnor a Kalashnikov shooting at Gramoz and Shkelqim ... I went to the scene. I saw Jetnor fleeing towards his house. Nardi went inside the house; I have heard three rows of shootings and l told them: do not hide, I saw you and I know you; the balcony has a perspective over the scene of event; there were no walls or gate; the stairs of the building to the scene of event is 50 m; I did not have the possibility to see the persons who shot at my uncles; I saw Shkelqim only after falling to the ground... Gramoz was 5-6 m from the defendants; Shkelqim 10-12 m; the defendants were about 5 m away from each other ...”
[16]We pause here to note that Ms Kalemasi’s statement in translation suggests rather oddly both that she saw the person who shot her uncles and that she did not have the chance to see them. Ms. Kalemasi's grandfather, Neki Llanaj, who was also on the balcony passed away in 2003 but he had provided a written statement to the police dated 21 March 2000 which appears to have been admitted at the retrial (and possibly the first trial of the Appellant in absentia). In that statement, he said:. “on the date 26.09.1999, around 10.00-10.30 hrs, Gramoz with Shkelqimi told me that we are going Cakran to get the Flamur (Santiliani's father) on the phone; l was on the balcony myself... the window of the balcony is high that looks all over the streets of the neighborhood when not even 5 minutes had passed from the departure of the boys, I together with Daniela, Farushe and Rajmonda were on the balcony as we heard shots .. I remember that I heard three types of shots from the position I saw Leonard Zeqo with two-legged machine gun in his hand... while Jetnor Zeqo with an automatic running away... I went to scene and I saw my two sons Shkelqim and Gramoz killed...”[17]We proceed on the basis that the person referred to as "Leonard Zeqo" by Neki Llanaj is the Appellant. A further prosecution witness was Keze Zeqaj whose evidence (which we set out below) is not particularly clear in terms of identifying the Appellant (referred to as "Illirian") as responsible:
"On September 23, 1999, it's been Thursday, my husband was at the wedding of his sister… we had our son around 11 o'clock we sent him to the store and he disappeared from us… at 11 o'clock he had run into Gramoz… Santiliano came that I asked whether he knew anything; he told me: there he had gone to the pine trees to try eating fried birds; we began again searching ..Saturday morning around 9 o'clock Jetnor's sister finds a letter at the gate... where the location of the corpse was noted…it was a stream; small had put it in a sack of potatoes... The police tells Jetnor that the boy has been strangled by people with big hands... On Sunday, police comes and tells me that round 10 o'clock that Santiliano Liana has done this... Jetnori went out to calm down, but I went out to the yard ..and two brothers were passing when Gramozi had left and Jetnori said: why man, did this to me…Gramozi told to be quiet because he would do the same as the boy... the same to you. I did not see him, but I head shots... there comes Jetnor and says: I killed them, Jetnor was alone with Ilirian, who was all the time on duty..."
[18]The Appellant's defence was one of alibi. He called witnesses to support his alibi: Rrapo Llanaj, Kastriot Sherifaj, Petrit Lulaj and Sami Kamberaj. They each said they were being served coffee by the Appellant at the time that gunshots were heard. Written evidence from Xhevit Zekaj (the father of Jetnor), who had died since the first trial, was admitted at the retrial. He said that he had heard shots and that neither Jetnor nor “Leonard” (again it is unclear who this refers to but we proceed on the basis that this was the Appellant) were at home at the time.[19]An issue that arose in the retrial was the extent to which prosecution witnesses could have seen what they claimed to have seen from the balcony of the apartment of Neki Llanaj. Evidence placed before the Court at the retrial, having been ordered (as an "investigative experiment") by the Court of Appeal, indicated that the view from the balcony would have been obstructed. The results of the experiment are not particularly clear and there may be issues with the translation of the SC Judgment but it records the findings of the Court in the retrial when acquitting the Appellant in the following terms: “Also during the trial the witness Daniela Kalemasi (Llanaj) (niece of the victims) has stated that from the balcony of her grandfather's apartment, citizen Neki Liana, she saw defendants Jetnor Zeqaj and Ilirjan Zeqaj at the scene who shot in the direction of her uncles, the victims Gramoz and Shkelqim Llanaj. The testimony of this witness does not match the results of the investigative experiment, which is realized on the basis of the reconstruction of the scene of the event, according to the minutes of the inspection of the scene of the event, from which it resulted that the witness from the balcony of the apartment Daniela Kalemasi (Llanaj) could not even see the apartment and the yard of the citizen's apartment Nuri Zeqaj and not even the scene of event, because from that point there is no perspective because of the trees as well as due to the relieve, which is slightly elevated and has not changed, as well as due to the existence of an apartment between the apartment of the citizen Neki Liana and the scene, dwelling which still exists today and obstructs the field of view. Also it does not match and with testimony of citizens Rrapo Llanaj, Petrit Lulaj, Kastriot Sherifaj and Sami Kamberaj, who stated that the defendant Jlirjan Zeqaj at the time of the incident was in the apartment of the citizen Xhevit Zeqaj having coffee due to the misfortune that had happened to the defendant Jetnor Zeqa. Also with the testimonies of witnesses Keze Zeqaj and Heko (Agim) Llanaj who stated that they saw the defendant Jetnor Zeqaj who was coming from the scene of event. In its assessment the court finds the evidence of this witness unbelievable also in connection with the moment when she stated that he went to the scene of event and saw the defendants, since referring to the scene of event, she heard at the moment the hosts and the place where the victims were, the distance is relatively long, this has had an impact thereon as well as the relive, since there is a bending road, her young ae makes it impossible to go there within a relatively short time. The court also evaluates the evidence of this witness and takes into account the fact that there is a strong gender connection with victims, who were her uncles. The testimony of this witness is completed only with the statements of citizens Neki Llanaj who stated that he saw the two defendants at the scene, a statement is not considered by the court as credible due to the close family relation with the victims who were his sons and due to lack of field of vision, as analyzed above”.[20]In summary, it appears that the trial court held that Ms Kalemasi could not have seen the Appellant and Jetnor from the balcony because the physical features of the land in between her and the claimed location of the defendants. This included the obstruction of her view by an apartment which existed at the time of the shooting. It regarded her evidence as "unbelievable" for these reasons as well as her age and family connections with the deceased men. The court also relied on, and accepted as credible, the evidence of the Appellant’s alibi witnesses. There appears to have been no other evidence such as forensic evidence linking the Appellant to the shooting. We note that Jetnor was connected to a weapon with ballistic evidence. Jetnor was convicted at the retrial. Having been acquitted, on 15 December 2014, the Appellant returned to the UK.[21]On 15 September 2015, the Vlora Court of Appeal heard and dismissed an appeal by the prosecutor and upheld the Appellant’s acquittal. Mr Gjokutaj successfully represented him on this appeal. The Court of Appeal reasoned that forensic evidence indicating that more than one person committed the murders proved only that Jetnor carried out the murder with one other person, not that the other person was the Appellant. The Court of Appeal noted that evidence of the involvement of the Appellant “is based only on the statements of the witness Daniela Kalemasi…”. Ms. Kalemasi’s evidence was found to be inconsistent with the experiment to establish her field of vision and, further, “it does not even match the testimonies of other witnesses…”.[22]At some point in 2015 the prosecutor, Petrit Vukaj, was arrested in relation to a corruption offence. He has been acquitted by the Court of Appeal but remains under investigation by an independent commission. The further information from Albania indicates that his conduct in these proceedings has not been the subject of criticism.[23]As far as the Appellant was concerned matters were closed and he was living in the UK as a British national. However, on an unknown date the prosecutor appealed against the Court of Appeal decision upholding his acquittal to the Criminal Chamber of the High Court (identified as the Tirana Supreme Court in the Further Information of 26 September 2022). This is the court to which we have referred above as “the Supreme Court”. It is a court of cassation.[24]It is not in dispute that the prosecutor did not notify the Appellant or Mr Gjokutaj, his lawyer, of this appeal. Mr Gjokutaj gave unchallenged evidence below that this failure to notify him was contrary to Albanian criminal procedural and constitutional law. It was also not suggested on behalf of the Albanian authorities that the Appellant had waived his right to participate in this appeal or to appoint his own lawyer to oppose the appeal. Mr Cadman was not able to help us on why the Appellant and his lawyer had not been notified of the appeal.[25]Following a hearing conducted in the absence of both the Appellant and his lawyer Mr Gotkutaj, on 10 May 2017, the Supreme Court ordered a retrial upon the appeal of the prosecutor. Mr Gjokutaj only became aware of this decision some 5 months later when it was announced on the Supreme Court website. It is not suggested that the Supreme Court or the prosecutor were unaware of the Appellant’s address in the UK. Indeed, we note that not long after the Supreme Court’s decision he was notified in October 2017 at his UK address that the second retrial pursuant to the Supreme Court's order was to begin.[26]Turning to the SC Judgment, the Supreme Court indicated concerns that the previous Courts had given what it called “predetermined value” to some evidence to the detriment of other evidence. The Supreme Court expressed concern that the trial court and Court of Appeal had laid too great an emphasis on the evidence of two defence witnesses and that the “experiment” concerning the line of sight was ordered some 15 years after the event and was inconsistent with a similar experiment attempted in 2002 (in which it was concluded that a reproduction of the position in 1999 was not possible). The Supreme Court considered that “the testimonies of two witnesses brought by the defense 15 years after the event cannot prove the alibi raised by the adjudicated person Ilirjan Zeqaj this many years later, without giving in advance an explanation as to why these witnesses did not testify earlier before the justice authorities, and not being taken into account by the courts, the fact that they are relatives of the defendants…”. The Supreme Court appears to have accepted that the evidence of Ms. Kalemasi was "key" to the prosecution case.[27]After a detailed analysis of the evidence given in the trial court, the Supreme Court's overall conclusion was that: "Looking at these [legal] principles and criteria of proof set out in the Code of Criminal Procedure in relation to the facts and circumstances of the matter under trial, this Chamber finds that the courts, referring to the evidence administered during the proceedings, although they admit the fact that the victims have been shot by two persons; that at the scene of event there have been found two types of cartridges, that the witnesses questioned at least twice by the courts (at trial and retrial) have declared that as soon as the shots were heard they saw at the scene, armed, the two defendants. For the defendant Jetnor Zeqaj they have come to the conclusion that he has committed the criminal offense of murder in complicity, whereof he was found guilty and convicted; while for the defendant Ilirjan Zeqaj, they reached the conclusion that it is not proven that he has committed the criminal offense. In the respective decisions of the trial courts, they have not made a comprehensive analysis of the evidence, in accordance with the provisions of Article 152/1 of the Code of Criminal Procedure, but, by given the default value of the investigative experiment, dated 17.10.2014, and the testimonies of two witnesses presented by the defendant's defense at the retrial; they did not analyze and valued fairly, in the entirety of all evidence administered in this criminal proceeding, the evidence of submitted by the prosecution, such as: statements of witnesses present at the scene, minutes of the scene inspection, minutes of the corpse inspection, acts of ballistic and forensic expertise, etc.”[28]Although the Supreme Court is a court of cassation dealing only with points of law, its judgment shows that it went into substantial detail concerning the oral evidence in the courts below and undertook its own assessment. It did this without Mr Gjokutaj (a lawyer who had detailed knowledge of the proceedings below) being present to protect the Appellant's interests. We note however that the SC Judgment records that a person (who appears to be a court appointed lawyer) requested that the decision of the Court of Appeal (refusing to quash the acquittal) be upheld. If any submissions were made by such person in support of the request, they are not recorded or referred to in the Supreme Court’s judgment or analysis of the evidence.[29]It is common ground that each of the Supreme Court Judges in the chamber that quashed the Appellant’s acquittal and ordered a retrial - Edmond Islamaj, Tom Ndreca, Guxim Zenelaj, Shkelzen Selmi and Artan Zeneli – have been dismissed from office by the Albanian Independent Qualification Commission. Although the Albanian authorities in Further Information dated 2 July 2023 confirmed the dismissal of the Judges, it has not commented on their involvement in the Appellant’s case or the reasons for their dismissal. Mr Gjokutaj's evidence below (which was not challenged) is that these judges had been "...dismissed from duty in the framework of the Law Reform (Vetting) due to breach of duty or corrupt elements".[30]In October 2017, the second retrial proceedings began pursuant to the Supreme Court’s order. Having been notified of the retrial by the Albanian authorities at his UK address, the Appellant again appointed Mr Gotkutaj to represent his interests. However, in May 2020 the proceedings were stopped due to a change in the judicial panel. The original panel were discharged after apparently also failing the vetting process, “as well as other factors such as transfers”.[31]On 25 September 2020 the Albanian authorities issued what was called an “international search warrant” 3 ½ years after the retrial was ordered by the Supreme Court. No explanation has been given for that delay. That warrant sought the Appellant's extradition to face the murder charges.[32]In September 2020 the retrial began again before a fresh panel of judges. The latest further information from the Albanian authorities indicates that, as at 2 July 2023, this was at that time ongoing and "in the phase of receiving evidence from the defence", and that he was being represented in those proceedings by a lawyer of his choice. Although that further information was some 2 years ago, as matters stand before us there is no indication as to when the trial will conclude.

Legal Framework

[33]Section 82 of the Act provides (under the heading “Passage of time”) that: “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—(a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it)”.[34]There was no dispute before us that the relevant legal principles were accurately summarised by the Divisional Court (Aikens LJ and Popplewell J) in Loncar v. Croatia [2015] EWHC 548 (Admin) (“Loncar”)at [29]:
“The following principles relevant to s. 14 (and s. 82 which is in materially identical terms for category 2 territories) may be derived from the authorities: (1) The word “unjust” is directed primarily to the risk of prejudice to the requested person in the conduct of the proposed trial itself, whereas the word “oppressive” is directed to hardship to the requested person resulting from changes in his circumstances that have occurred during the period to be taken into consideration. However, there is room for overlapping and between them the two words will cover all cases where to return him would not be fair: Kakis vGovernment of Cyprus [1978] 1 WLR 779 per Lord Diplock at page 782. (2) Delay in the commencement or conduct of extradition proceedings which is brought about by the requested person himself by fleeing the country, concealing his whereabouts, or evading arrest cannot be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties 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. In those circumstances, save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept those difficulties: Kakis per Lord Diplock at page 783, Gomes v The Government of Trinidad and Tobago [2009] 1WLR 1038 at paragraph [27]. (3) Where the delay is not brought about by the requested person himself, the essential question underlying the ground that the passage of time has made it unjust to extradite him is whether, by reason of that passage of time, a fair trial is impossible: Gomes at paragraphs [32-33]. Nevertheless prejudice in the conduct of his defence at a trial or retrial may be a factor contributing to a conclusion that a return would be oppressive, notwithstanding that it will not of itself satisfy the injustice criterion. (4) The test of oppression “by reason of the passage of time” will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extradition, is not enough: Gomes at paragraph [31]. (5) The gravity of the offence is relevant to whether changes in the circumstances of he accused which have occurred during the relevant period are such as would render his return to stand trial oppressive. The more serious the offence, the less easy it will be to satisfy the test of oppression: Kakis per Lord Diplock at page 784; Gomes at paragraph [31]. (6) The length of time is itself an important consideration in whether a return would be oppressive: Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin). (7) Where the delay is not brought about by the requested person himself, it is a relevant factor if the delay has engendered in the requested person a legitimate sense of security from prosecution or punishment: Gomes at [26]; La Torre per Laws LJ at [37]. (8) Where the delay is not brought about by the requested person himself, the culpability of the delay by the judicial authority may contribute to establishing the oppressiveness of making an order for his return, and may be decisive in what is otherwise a marginal case: Kakis per Lord Edmund Davis at page 7855, La Torre v The Republic of Italy [2007] EWHC 1370 per Laws LJ at paragraph [37]; Gomes at paragraph [27].”
[35]Given the approach of the Judge (see [49] below) we should at this point underline that it was common ground before us that as a matter of law the gravity of the alleged offending is relevant to the oppression limb only. It is not a relevant consideration when the court assesses whether the passage of time makes extradition unjust. As to authority for this well-established proposition see: the citation at para (5) above from Loncar; Kakis at 784H; Scott v. Australia [2020] EWHC 2924 (Admin) at [53]; and Koc v Turkey [2021] EWHC 1234 (Admin) at [24].[36]Section 87 of the Act provides (under the heading “Human rights”) that : “(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited”.[37]Article 6 provides (with our underlined emphasis): “(1) In the determination of his/her civil rights and obligations or of any criminal charge against him/her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (2) Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. Everyone charged with a criminal offence has the following minimum rights:(a) to be informed promptly, in a language which he/she understands and in detail, of the nature and cause of the accusation against him/her;(b) to have adequate time and the facilities for the preparation of his/her defence;(c) to defend himself in person or through legal assistance of his/her own choosing or, if he/she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her;(e) to have the free assistance of an interpreter if he/she cannot understand or speak the language used in court”. (a) to be informed promptly, in a language which he/she understands and in detail, of the nature and cause of the accusation against him/her; (b) to have adequate time and the facilities for the preparation of his/her defence; (c) to defend himself in person or through legal assistance of his/her own choosing or, if he/she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her; (e) to have the free assistance of an interpreter if he/she cannot understand or speak the language used in court”.[38]We will summarise the legal principles governing those aspects of the Article 6 right to a fair trial which we have underlined above and which are relied on in this appeal by Mr Smith.

A hearing "within a reasonable time"

[39]We will call this “the reasonable time requirement”. The following basic principles governing this aspect of Article 6 right were not in dispute:(1) For the purposes of Article 6, the period to be taken into consideration begins on the day on which a person is charged: Neumeister v Austria (Application No 1936/53, 27 June 1968) at [18)].(2) When determining whether the duration of criminal proceedings has been reasonable, the court will consider factors such as the complexity of the case, the defendant’s conduct and the conduct of the relevant authorities: Pélissier and Sassi v. France (Application No. 25444/94, 25 March 1999) at [67].(3) In circumstances where the state has elected to retry a defendant they must proceed with particular diligence, and there is a duty to ensure that any delay is kept to an “absolute minimum”: Henworth v. United Kingdom (Application No 515/02, 2 November 2004) at [29], and Ezeoke v. United Kingdom (Application No 61280/21 25 February 2025) at [45].[40]Ezeoke was a double murder case. A violation of the reasonable time requirement was found where five trials of the applicant had taken place within 5 years of arrest. In Henworth, which was also a murder case, a violation was found when a retrial was heard in 1999, following arrest in 1995.[41]The decision of the Strasbourg Court in Bara & Kola v Albania(Applications Nos. 43391/18 and 17766/19, 12 October 2021)was also relied upon by Mr Smith. This case concerned an alleged premeditated murder and illegal possession of firearms. The Court found that the length of the ongoing criminal proceedings which had lasted nine years, nine months and sixteen days at three levels of jurisdiction was excessive. It noted that the proceedings should not have taken that length of time as they were not particularly complex and there was no indication that the Applicant had caused or contributed to the delay of the proceedings. The Court found that there had been at least two significant periods of unexplained judicial delay, part of which involved proceedings before the Supreme Court which were delayed due to the vetting process which has created a backlog of cases. In finding Article 6(1) was violated, the Court found that “owing to the seriousness of the criminal charge against the second applicant and its impact on his rights, the proceedings called for some level of expedition”: [96]. Notification of proceedings and the right to defend oneself in person or to appoint a lawyer of one's own choosing[42]Being notified of proceedings and having the right to defend oneself in person or through legal assistance of one's own choosing are fundamental aspects of Article 6. See R v. Jones[2003] 1 A.C 1 at [8]- [9]; and Bertino v. Italy [2024] UKSC 9 at [28] et seq. The position was reiterated by the Grand Chamber in Sejdovic v. Italy(Application no. 56581/00):
“91. Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol , cited above, § 34). A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial (see Mariani v. France, no. 43640/98, § 40, 31 March 2005 ). It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal…”
[43]In Colozza v Italy (Application No 9024/80, 12 February 1985) at [28]-[32], the Strasbourg Court held at [27] that the rights under Article 6(3)(c)-(e) could not be exercised without a defendant being notified and present (subject to his having unequivocally waived such a right).[44]The position of cassation courts in civil law systems has also been considered by the Strasbourg Court: see Delcourt v Belgium (Application No. 2689/65, 17 January 1970). Between [24]-[28], the Court addressed the submission of the Belgian Government that Article 6(1) did not apply to its Court of Cassation because it did not deal with the "merits" of the cases submitted to it, and that this court did not "go into the substance of the offences alleged against accused persons and judges not persons but judgments in regard to which it confines itself to supervising their validity": [24]. The Court rejected that submission. It explained that in criminal matters accused persons “do not disappear from the scene when the decision of the judges at first instance or appeal gives rise to an appeal in cassation”. It noted that although the judgment of the Court of Cassation could only confirm or quash such decisions (and not reverse or replace them) that judgment "may rebound in different degrees on the position of the person concerned": [25]. In particular, it explained that a defendant loses his status as a convicted person or, as the case may be, the benefit of his acquittal, at any rate provisionally, when a decision is set aside and the case is referred back to a trial court. The Court held that Article 6(1) does not compel the Contracting States to set up courts of appeal or of cassation but a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6. Although it concluded that Article 6(1) is applicable to proceedings in cassation at the level of principle, it explained that the way in which it applies will depend on the special features of such proceedings. That means it is necessary to examine what were, both in law and in practice, the functions exercised by the particular cassation court in the case.[45]We turn to the grounds. Ground 1: passage of time and injustice under section 78 of the Act The arguments

Ground 1: passage of time and injustice under section 78 of the Act

[46]Mr Smith’s primary submission was that the judge’s approach to the “injustice” limb of section 78 was vitiated by an error of law because he wrongly took into account the “gravity of the offending” when considering the injustice question. That error, he submits, means we need to make the decision afresh. Mr Smith submitted that on the facts below the only correct conclusion was that the passage of time rendered extradition unjust because of the impossibility of a fair trial after 27 years. He argued that this was essentially a “Turnbull” case (R v Turnbull [1977] QB 224) which depended solely on Ms Kalemasi’s correct identification of the Appellant. He submitted that this was a case where real caution was needed on the issue of identification.[47]On why a fair trial was impossible, Mr Smith’s principal arguments can be summarised as follows: i) First,the incident is now 27 years old. He argued that the extradition request confirms that the case stands or falls on a single eye witness who was a child at the time (14 years old). Mr Smith said that the ability to challenge such evidence speaks for itself. There is also no ballistic or forensic evidence connecting the Appellant to the murders. ii) Second, he submitted that the ability to test that eye witness by means of exploring the line of sight from Ms Kalemasi’s vantage point on a balcony has been challenged (successfully) by the prosecutor on the basis that such evidence obtained in 2017 is unreliable because of the passage of time. iii) Third, he said it is the prosecutor’s argument – upheld in the absence of the Appellant by the Supreme Court – that the Appellant’s own alibi witnesses should not be considered credible because they were called a substantial period after the event, and that this called for explanation. This ignores the fact that the Appellant was not present or participating in the first trial and that they were called in the retrial – the first occasion on which he was able to participate. Mr Smith argued that the prosecution position, and that adopted by the Supreme Court, has the inevitable consequence that the Appellant will face significant difficulty in relying on alibi witnesses by virtue of the passage of time. iv) Fourth, he said there has been a breach of the reasonable time requirement under Article 6(1), given the time that has elapsed between the order for a retrial in 2017 and the present (when the retrial that recommenced in 2020 is still ongoing).[48]Mr Cadman conceded that there was an error of law when the Judge took into account the gravity of the offending under the injustice limb. He argued however that the Judge was right to find that a fair trial was not impossible on his analysis of the evidence. He cautioned us against second-guessing the Supreme Court's approach to that evidence and submitted that, despite the passage of a substantial period of time, the Appellant will not face difficulties in his ability to present a defence to the charges. Mr Cadman submitted that the passage of time and its effect on the memory of witnesses would not on the facts of this case make it impossible to have a fair trial.

Analysis and conclusions

[49]In assessing these arguments we begin by summarising the judge’s approach to the section 78 issue. The judge’s findings on passage of time, and his assessment of the legal framework are found in the Judgment at [81] to [104]. As to the injustice limb, he held that: i) As regards the complaint that the changes that have occurred to the scene since the murders will make it difficult to challenge the eyewitness accounts, there was “very little evidence” of a reduced ability to challenge eye witnesses due to the passage of time ([81]); and the Appellant also had a reasonable recollection of events. ii) The gravity of the offending was a relevant consideration when assessing both injustice and oppression arising out of the passage of time, relying on Mariotti v. Italy[2005] EWHC 2745 (Admin).In relation to injustice specifically, the judge noted that “There remains a high degree of public interest in continuing to pursue this case, considering the very serious nature of the double murder allegations” : [95].[50]As we have already noted, it is common ground that the judge was wrong to conclude (at [81] and [95]) that the gravity of the offending and/or the public interest in pursuing a prosecution was relevant to whether it would be unjust to extradite by virtue of the passage of time. The judge relied on Mariotti v. Italy [2005] EWHC 2745 (Admin) as his foundation for taking that approach. That was a habeas corpus and extradition case where the applicant’s return to Italy was sought for him to face trial for an alleged murder in 1978. The case was not concerned with section 78 of the Act. The conclusion of the Divisional Court on the very specific facts of the case at [26] was that “Having regard to the gravity of the offence, we do not consider that the passage of time renders it unjust for the applicant to be returned”. That observation did not purport to lay down any point of principle that as a matter of law the gravity of an offence is relevant to injustice under the Act. But in any event, as we have identified above, a number of other cases identify that gravity if not relevant to the injustice issue. If it can be shown that a trial will be unfair, it does not matter that there is offences charged are of the utmost gravity. The judge’s approach shows a plain legal error and Mr Smith KC was right to submit that it infects the Judgment on this issue wholesale.[51]In these circumstances, we must undertake our own analysis in relation to the injustice issue. In our judgment, having regard to the high test that a fair trial must be shown by the Appellant to be "impossible" as a result of the passage of time, we do not consider this test is met. We start by noting that the central prosecution evidence was given by Ms Kalamasi in 2014 (some 15/16 years after the events). Insofar as memories will have faded we were not persuaded that the time that had passed between the events in 1998/1999 and the retrial in 2014, and the time that has passed between 1998/1999 and the present day, would, where the evidence of the witnesses was recorded in 2014 (already many years after the killings), make a fair trial impossible. Ms Kalamasi’s account and recollection given in 2014 was of events of 15/16 years earlier. We were not persuaded that her evidence has become more difficult to challenge given the events are now some 26/27 years ago. At the first trial, in which the Appellant was represented, his lawyer did not have any difficulty in challenging Ms Kalamasi even though the events she claimed to recall were many years ago. In our judgment, the judge was right in his conclusion that there was “very little evidence” of a reduced ability to challenge eye witnesses due to the passage of time. That observation also applies to the alibi witnesses and we do not accept that the SC Judgment precludes the Appellant from advancing their testimony as witnesses of truth.[52]We have not overlooked Mr Smith's submissions as to the breach of the reasonable time requirement. We agree below with his submission that the Appellant's Article 6 rights to a trial within a reasonable time have been violated (in particular because of the 7 year and continuing delay since the Supreme Court decision directing a retrial). However, that point does not assist the Appellant’s argument under section 82 given that, as we have decided, a fair trial is still possible despite the passage of time. As explained by Lord Bingham for the majority in Attorney General's Reference (No. 2 of 2001); [2003] UKHL 68; [2004] 2 AC 73 at [24], if there has been a breach of the reasonable time requirement it is not appropriate to dismiss the proceedings unless the delay has meant there can no longer be a fair hearing.[53]We reject Ground 1.

Ground 3: section 87 of the Act and Article 6

[54]In order to succeed on this ground, the Appellant must demonstrate a flagrant breach of his Article 6 rights. That is a breach that is so fundamental it amounts to a nullification or destruction of the “very essence of the right” guaranteed by Article 6: Othman v United Kingdom (2012) 55 EHRR 1 at [258]-[260].[55]In the present case, the Appellant's argument on flagrant breach of his Article 6 rights is based on historic events which Mr Smith rightly submits need to be proved on the balance of probabilities. This is not a case where an accused person relies on a potential prospective breach of Article 6 based on a future trial, where he must demonstrate that there are substantial grounds for believing that such a breach may occur: Popoviciu v Curtea De Apel Bucuresti (Romania)[2023] UKSC 39 at [78].[56]In support of his case, Mr Smith relied on three main matters which he submitted establish a flagrant historic denial of justice:(i) the denial of the Appellant’s right to participate in the Supreme Court proceedings(ii) the constitution of the Supreme Court panel and(iii) the overall length of proceedings. Mr Cadman does not take issue with the proof of these matters but argued that they do not meet the high test of a "flagrant" breach.[57]In our judgement, the Appellant has demonstrated a flagrant breach of his Article 6 rights, when these three points are taken together:(1) It was a fundamental aspect of the Appellant’s Article 6 rights that he be notified of the appeal to the Supreme Court and that he be given the opportunity to be represented in the appeal process by a lawyer of his choice. It is not in dispute that he was not notified of the Supreme Court appeal and that he was not represented by the lawyer of his choice, Mr Gotkutaj. Indeed, we note the uncontradicted evidence of Mr Gotkutaj below was that failing to notify the Appellant of the appeal and to allow him representation of his choice was in violation of Albanian procedural and constitutional rules. Although in other cases, the court appointment of a lawyer to represent an appellant in an appeal might mean there was not a flagrant denial of rights, on the facts before us we are not satisfied that he had fair representation. First, we do not know what was said by the court appointed lawyer on his behalf. The inference to be drawn from the absence of any reference to submissions from the court appointed lawyer is that he made no submissions of substance beyond merely requesting the dismissal of the appeal. Second, on the facts we have described above, and although this was a cassation court, it addressed and analysed the facts and evidence in the courts below in substantial detail. We are confident that not having Mr Gotkutaj to represent his interests was unfair and prejudicial. Mr Gotkutaj had participated in the evidential contest at the trial and was fully familiar with the detail of the evidence given and its nuances. Mr Smith was right to highlight that every time that the Appellant had been represented by his own lawyer, he had been acquitted or been successful in opposing appeals against his acquittal. It is hard to conceive of a more significant breach than preventing the Appellant from participating in, or being represented by a lawyer of his choice, at such an important stage of the proceedings.(2) To this must be added the fact that the entire panelof Supreme Court judges on the chamber that heard the appeal have been dismissed for failing the vetting process. They were plainly not an "independent and impartial" tribunal for Article 6 purposes and indeed Mr Cadman did not suggest they were. We do not need to go into the press articles before us as to why they failed this process because the Albanian authorities have concluded they are unfit for office. That suffices to show they cannot have been an Article 6 compliant tribunal.(3) Lastly, there is the extraordinary length of the proceedings compounded by the delay in the retrial. The failure to prosecute the retrial in the eight years that have elapsed since it was ordered by the Supreme Court has not been justified by the Respondent. Having regard to the Strasbourg caselaw, in circumstances where the proceedings began in 2002, and the retrial was ordered in 2017, there was an enhanced obligation on the Albanian authorities to proceed with expedition. The delay since 2017 is in our judgment a clear breach of the reasonable time requirement. The delay has not been explained other than 3 years being due to the removal of the panel of judges who were first appointed to hear the retrial. Indeed, we note there still seems no clear end point to the retrial, which is apparently continuing.[58]For these reasons, if extradited, the Appellant will face trial as a consequence of a fundamentally unfair Supreme Court process and unjustified delay since the decision overturning his acquittal. That would, on the specific facts before us, amount to a flagrant denial of his Article 6 rights.[59]Mr Smith was right to submit that the judge failed to assess the arguments concerning these three key points adequately or at all, although the arguments which appear to have been made to him below were not perhaps advanced in quite the same way or with the same clarity. His analysis is condensed into two short paragraphs: [168-169]. The judge relied on a “robustness” within the Albanian system as demonstrated by the successful appeal against the Appellant’s conviction, and a conclusion that the Albanian courts would be “equally robust” in the future. This is not the test for whether there has been a flagrant denial of this Appellant’s Article 6 rights. We also note that although he recorded at [69] that the Appellant had not been informed of the Supreme Court appeal, the judge did not consider the impact of important appellate proceedings being conducted in the absence of the Appellant or his own lawyer. Equally, his conclusions failed to take into account that each of the judges in the chamber of the Supreme Court was determined by the Albanian authorities themselves to be unfit for office. The judge also did not consider the manifest delay in prosecuting the case wholesale or the specific and unexplained delay (of some 7 years) in progressing the current ongoing and uncompleted retrial.

Conclusion

[60]The appeal succeeds under section 87 of the Act. We order the Appellant’s discharge. In these circumstances, we do not need to consider the Appellant's application to adduce fresh evidence or his other grounds.