Case No:  CO/4998/2012
Neutral Citation Number: [2013] EWHC 261 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  20th February 2013

Before :

LORD JUSTICE GROSS
and
MRS JUSTICE GLOSTER, DBE
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Between :

	Ilirian Zeqaj	Appellant	
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	Government of Albania	Respondent	

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(Transcript of the Handed Down Judgment of
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Ben Cooper Esq (instructed by Hodge Jones & Allen LLP) for the Appellant
Toby Cadman Esq (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates:  29th January 2013
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Judgment
Mrs Justice Gloster:
Introduction
1.	This is an appeal, pursuant to s.103 of the Extradition Act 2003 (“the 2003 Act”), from the decision of District Judge Wickham, sitting at Westminster Magistrates’ Court, on 12 March 2012 (“the judgment”), to send the matter to the Secretary of State for Home Affairs (“the SSHA”) to consider extraditing Ilirian Zeqaj (“the Appellant”) to the Republic of Albania (“the Respondent”) to serve a sentence of 23 years in connection with murder and firearms offences.  On 14 May, 2012, the Appellant filed a notice of appeal against the judgment.  
2.	The Appellant is an Albanian citizen born on 28 August 1972 in Cakran, in the district of Fier.  He also holds British citizenship in the alias of Klemend Zeqaj, allegedly born on the same date in Mitrovica, Kosovo, He arrived clandestinely in this country on 21st of November 1999 and claimed asylum under this alias.  On 23 September 2005 he was granted permanent leave to remain and on 8 November 2006 was granted British citizenship.  
3.	On 7 June 2000 a warrant for his arrest was issued by the District Court Fier.  On 6 September 2002 the District Court convicted him in his absence of two counts of premeditated murder and one count of illegal possession of military weapons, contrary to Albanian law.  On 8 July 2011 the Respondent was informed by the British police that the Appellant had been located in the United Kingdom.  On 25 July 2011 the Respondent submitted an extradition request to the SSHA.  On 1 August 2011 the SSHA certified the extradition request in accordance with section 70 of the 2003 Act.
4.	Or 12 December 2011 the matter was listed before District Judge Evans at the Westminster Magistrates Court for a case management hearing.  Because the issues being raised by the Appellant (in particular, whether the Appellant would be entitled to a retrial in Albania within the meaning of section 85 of the 2003 Act), were identical to issues being argued in a series of other Albanian requests, the District Judge agreed to adjourn the case until the conclusion of the judicial review proceedings in R (on the application of Mucelli and others) v Secretary of State for the Home Department, con-joined with the cases of Hoxhaj v Government of Albania and Gjoka v Government of Albania [2012] EWHC 95 (Admin) (“Mucelli”), in which Counsel for the Appellant, Mr. Ben Cooper, was also instructed.  
5.	On 27 January 2012, this Court (Toulson LJ and Cranston J) dismissed the claim for judicial review and the relevant appeals in Mucelli.  After a full review of Albanian law in relation to the issue of retrial after extradition, English case law on Albanian extraditions, and ECHR jurisprudence on Albanian extraditions, the court concluded at paragraph 55 that:
“… 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.”
6.	At his subsequent extradition hearing on 12 March 2012, the Appellant did not give evidence and no other live evidence was presented on his behalf.  He argued that he had not been deliberately absent from his trial in Albania, and that, on the evidence, extending beyond that presented to this Court in Mucelli, the right to a retrial in Albania was not automatic, and therefore was in breach of his rights under the European Convention on Human Rights (“the Convention”) as guaranteed under the 2003 Act. Mr Cooper informed us that he was careful not to re-argue the Mucelli evidence before the District Judge; rather, he conceded before her that he could not re-argue the evidence before the High Court in Mucelli, since the Magistrates Court would ordinarily be bound by that judgment; but he sought to persuade the District Judge that the different evidence served by the Respondent in this case, namely what he referred to as "an express concession in its written evidence that the right to retrial in Albania is not automatic" shed a different light on the Mucelli evidence . 
7.	In relation to the first issue, the District Judge concluded in the Appellant’s favour that, notwithstanding the timing of his arrival in the United Kingdom (some five months after the murders) and his false identity, he had not deliberately absented himself from the trial in Albania.  In relation to the second issue, the District Judge concluded, contrary to the Appellant’s submissions, that, following the reasoning of Cranston J in Mucelli, the Appellant would be entitled to a retrial in Albania.  At paragraphs 12-14 of the judgment, the District Judge put it as follows:
“12.	Notwithstanding the timing of this defendant’s arrival in the United Kingdom some 5 months after the murders and his false identity I cannot find that he deliberately absented himself from the trial.  I am satisfied following the reasoning of Cranston J in Mucelli that he will be entitled to a trial.  I do not accept that Elira Kokona’s concern expressed at page 19 of her report and references to, ‘… any clear possibility and absolutely no certainty that the proceedings which led to his conviction … will be re-examined by the Albanian authorities at least in the near future’ bring this submission into the realms of Bohm and Romania [2011].  This authority is based on the finding that, ‘the right to a retrial is not in fact automatic but rests in the discretion of the Romania Court’.
13.	I now turn to the Article 6 submissions.  The defence argue that the failure to provide a retrial or a review amounting to a retrial amounts itself to a flagrant denial of justice in breach of Article 6.  The authorities of Soering [1989] and Sejdovic [2006] are quoted.
14.	Again, this was fully argued in Mucelli.  I quote paragraph 55 of that judgment ‘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’.”
8.	The Appellant’s sole ground of appeal before us was as follows:
“The District Judge erred in concluding that he is entitled to a retrial in Albania (within the meaning of section 85 of the 2003 Act).  There was insufficient evidence upon which to reach such a conclusion.”
The Appellant’s submissions
9.	Mr. Cooper, on behalf of the Appellant, submitted that, pursuant to section 104(4) of the 2003 Act, this Court should admit and take into account further evidence that was not available at the extradition hearing on 14 February 2012, which would have resulted in the District Judge deciding the issue before her differently, and would, accordingly, have resulted in the Appellant’s discharge.  In particular he sought to rely upon two further statements, from Mrs. Elira Kokona, an Albanian human rights lawyer retained on behalf of the Appellant, dated respectively 17 January 2013 and 28 January 2013.  The first statement addressed factual developments in the applications in Albania for retrials by the appellants Mucelli, Hoxhal and Gjoka after their extradition from the United Kingdom;  it also addressed the fact that there was an absence of any information concerning whether there have been appeals or retrials in the cases of Cakollari and Vatoci.  The second statement addressed a decision of the Albanian Constitutional Court in the case of Arsim Murtati who had been extradited from the United Kingdom following a decision of this Court in Murtati v The Government of the Republic of Albania [2008] EWHC 2856 (Admin).
10.	On the basis of this evidence, which post-dated the most recent decision of this Court in Mucelli, Mr. Cooper submitted that it was clear that Mucelli and the other Appellants conjoined to the Mucelli appeal, have, since their return to Albania, effectively been denied an automatic retrial.  In those circumstances Mr. Cooper submitted:  that, notwithstanding the decision in Mucelli, the law, procedure and practice concerning retrial rights in Albania remained uncertain;  that the right to retrial in Albania was not automatic but rested in the discretion of the Albanian Court;  and that, for that reason, in accordance with decisions of this Court in cases such as Government of Albania v Bleta [2005] 1WLR 3576, The Queen (on the application of Bulla) v Secretary of State for the Home Department [2010] EWHC E3506 (Admin), and Bohm v Romanian Judicial Authority [2011] EWHC 2671 (Admin), the Appellant’s appeal should be allowed. He repeated the submission made to the District Judge that, in the circumstances of this case, the express concession made by the Government that that the right to retrial in Albania is "not automatic" required this Court to reach a different conclusion than that reached in Mucelli. 
Discussion and determination
11.	Whilst we do not accept that the additional evidence sought to be relied upon, would have resulted in the District Judge deciding any questions before her differently, we are nonetheless (but without setting, or departing from, any precedent as to the circumstances in which further evidence will be received on appeal) prepared to consider these additional evidentiary materials for the purposes of this appeal.  We are prepared to do so notwithstanding that the late service of these materials on the Respondent made it impossible for those appearing on behalf of the Respondent to obtain an adequate response in the short time available before the hearing.
12.	Under sub-section 85(5) of the 2003 Act, if a judge decides that a person, who was convicted in his absence by the requesting state, has not deliberately absented himself from his trial, the judge must go on to decide
“… whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.”
However I point out that such a decision is necessarily based on the premise, or hypothesis, that, as found by the judge, there has been no deliberate non-attendance at trial.  It does not seem to me that, under the subsection, the judge is required to conclude (before ordering extradition) that, even if the requesting Court were to reach a different conclusion on that factual issue, it would have to afford an automatic right of retrial to the person subject to the extradition request.
13.	In evidence before the District Judge was a statement from the Respondent to the Home Office dated 30 November 2011 entitled 
“Re:	On extradition from the United Kingdom to Albania of the Albanian national Ilirian Zeqaj…
In reply to your request for additional information… the Ministry of Justice of the Republic of Albania informs as follows:
(a)	the defendant is sentenced in his absentia [sic];
(b)	the defendant has escaped, therefore the District Prosecutor’s Office of Fier, by Decision dated 11.06.2000, declares the non-localization of the defendant, proving that the subject in question has not been informed of any stages of the criminal proceeding;
(c)	According to the Albanian legislation, the defendant was assigned the lawyer Nikollaq Helmi to represent him during the criminal proceedings in his absentia [sic];
(d)	The defendant is considered a fugitive by justice, by virtue of the above cited decision of the District Prosecutor’s Office of Fier;
(e)	Upon his return, pursuant to the Albanian legislation, the defendant shall be entitled to a full retrial. This is not an automatic right but is exercised on the basis of procedures provided for in the Criminal Procedure Code.
You may find the legal procedures related to the sentence in absentia and the right to retrial or re-hearing, in the attached guarantees of the Albanian state.” (Emphasis added.)
14.	Attached to this statement was a document of the same date headed “Re:  Guarantees granted by the Albanian state on the request for extradition from United Kingdom to Albania of [the Appellant]”.  This document contained the following passages:
“In reference to the extradition case from the United Kingdom to Albania of the Albanian national Ilirian Zeqaj and in reply to your request, the Ministry of Justice provides the following guarantees:
When decision is rendered in absentia the criminal shall enjoy the effective right to a retrial from application of article 450 of the Criminal Procedure Code of the Republic of Albania, because this provision is interpreted in the High Court Decision No. 812, dated 17 September 2010.  This article has now generated a consolidated jurisprudence in the judicial and legal-doctrinal tradition of the Republic of Albania.
The Supreme Court Decision No. 812 dated 17 September 2010 is referred on all the lower courts of Albania and shall apply with exactly the same effect in all cases of citizens subject to extradition, for whom the Ministry of Justice has granted the guarantees concerning the right to retrial because of their trial in absentia.
…
As can be noted by the Supreme Court, Article 450 does not at first sight provide for a retrial in circumstances where a person returns to Albania following extradition.  However, given the obligations owed by Albania under international law and related Albanian domestic law, the Supreme Court has now ruled that in relevant extradition cases, i.e. where ‘guarantees for retrial’ has been granted by the Albanian Ministry of Justice, then Article 450 must be read as guaranteeing an extradited individual the right to a retrial.
…
Therefore, pursuant to Article 147(2) of the Albania Criminal Procedure Code, if the citizen Ilirian ZEQAJ were extradited he would be entitled to make a request ‘to reinstate the time limit’.  This request must be made within 10 days of his arrival in Albania.
Upon his arrival in Tirana, Albania, the citizen Ilirian ZEQAJ will be given a copy of (i) the minutes of the judgment against him which was rendered in absentia;;  (ii) the prosecutor’s order of execution of the judgment;  and (iii) a cover document/ record for him to sign.
Once the citizen Ilirian ZEQAJ signs the cover document/ record, he is regarded under Albanian law as having received ‘effective notification’ of the decision which was rendered against him in absentia.  As such, the 10-day period in which he may apply ‘to reinstate the time limit’ begins to run.
This approach to Article 147(2) of the Code of Criminal Procedure in the extradition context is the settled jurisprudence of the Albanian courts.  It is reflected in a number of consolidated decisions of the Albanian courts.
Having lodged an application to reinstate the time limit under Article 147, a defendant is then afforded a re-trial which would amount to a rehearing of the case against him by virtue of Article 148.  He would be afforded representation and be able to examine witnesses as at the original trial.”
The document also set out a summary of the decision of the Albanian Constitutional Court in ES, one of the cases considered by the court in Mucelli.  
15.	In my judgment, there is nothing in the further opinions of Mrs. Kokona, or the materials to which she refers, relating to other cases, which would lead me to depart from the conclusion reached by this Court in Mucelli, on very similar facts, that a person in the position of this Appellant, who has been given a guarantee by the Albanian Ministry of Justice in the terms of the two statements quoted above, has a practical and effective right of retrial consonant with his rights under Article 6 of the Convention.  It is clear that, as in Mucelli, the Appellant will have to act quickly (within 10 days) in order to exercise his right to lodge an application to reinstate the relevant time limit, but the evidence then shows that he will be afforded a retrial.  The fact that the Appellant must comply with procedural requirements in order to obtain a retrial (and that, in that sense, his entitlement is not “automatic”) does not mean that, for the purposes of section 85, he is not entitled to a retrial. For that reason, there is nothing in Mr Cooper's submission that the terms of the guarantee given by the Respondent in this case distinguishes this case from Mucelli.  
16.	My reasons for my conclusion that there is nothing in the further opinions of Mrs. Kokona, or the materials to which she refers, which would persuade me to depart from this Court’s analysis in Mucelli, may be briefly summarised as follows:
i)	It was not suggested in argument by Mr. Cooper, on behalf of the Appellant, that the Albanian Court would be bound by the District Judge’s finding that the Appellant did not deliberately absent himself from his trial.  Nor was it argued that any condition precedent to the exercise of his right of appeal in Albania, which required the Appellant to demonstrate that he had not deliberately so absented himself, would amount, in the circumstances of the District Judge’s finding, to a contravention of his Convention rights or would preclude the demonstration of an “entitlement” for the purposes of subsection 85(5), on the basis of the hypothesis there set out, namely the District Judge’s finding.  In the present case this Court must assume that it is extremely unlikely that the Respondent would seek to take such a point, given its statement quoted above that the Appellant “has not been informed of any stages of the criminal proceedings”.
ii)	There is nothing in the evidence relating to the further proceedings in Albania in relation to Mr. Mucelli that suggests his Convention rights have been infringed in his subsequent appeal proceedings in Albania.  On the contrary, the evidence shows that on 24 October 2012, the Court of Appeal, Tirana, having concluded that Mr. Mucelli had not been appropriately notified of the criminal proceedings against him, decided to overrule the previous verdict against him and to send the case back to the Judicial District Court of Tirana for retrial by a different judgment panel.  Mrs. Kokona’s comments that a retrial has not yet started (in my judgment, not necessarily surprising given the date of the appeal decision) and that the website of the Court of Appeal inaccurately reported the result, have no bearing on the matter.
iii)	Similarly, there is nothing in the evidence relating to the further proceedings in Albania in relation to Mr. Hoxha (one of the conjoined appellants in Mucelli) that demonstrates that his Convention rights have been abused as a consequence of his extradition to Albania.  The evidence shows that he was apparently extradited on 8 March 2012 and presented an application pursuant to Article 450 of the Code of Criminal Procedure and Article 6 of the Convention, which was registered by the Albanian Supreme Court on 10 May 2012.  The fact that his case is, according to Mrs. Kokona, still pending before the Supreme Court, may, arguably, be regrettable in terms of delay, but does not, in my judgment, amount to such an abuse of his Convention rights as to demonstrate that he has no effective “entitlement” to a retrial for the purposes of section 85(5) of the 2003 Act.
iv)	The evidence relating to Mr. Gjoka (another of the conjoined appellants in Mucelli) likewise does not demonstrate any absence of “entitlement” of a right to a retrial or that Albanian procedures in relation to retrial are unclear or purely discretionary.  In that case, according to Mrs. Kokona’s evidence, Mr. Gjoka applied to the Albanian Constitutional Court to find the “unlawfulness of the judgments which led to his conviction and quash them accordingly”, pursuant to article 42 of the Albanian Constitution.  On 12 July 2012 the Constitutional Court dismissed the request as ill-founded, on the basis that Mr. Gjoka had failed to prove that he had not been on notice of the criminal proceedings against him and therefore did not have the entitlement to a retrial.  Mr. Cooper submitted that the fact that Mr. Gjoka had apparently been required to demonstrate in Albania that he had not deliberately absented himself from trial, was contrary to what appeared to be guarantees which had been given by the Respondent in relation to Mr. Gjoka, and/or the Respondent’s acceptance that he had not deliberately absented himself from trial, as set out in paragraphs 10 and 11 of this Court’s judgment in Mucelli.  In my judgment, in circumstances where this Court does not have available to it the terms of the guarantee given by the Respondent in that case, or knowledge as to whether the concession referred to in paragraph 11 was simply given for the purposes of the UK proceedings, and where it was clear from the reasoning of the Albanian Constitutional Court that it concluded that Mr. Gjoka was indeed aware of the criminal proceedings and voluntarily chose not to attend them, I cannot conclude that the requirement that Mr. Gjoka had to demonstrate that he had not deliberately absented himself from trial, in any way deprived him of his Convention rights.
v)	Likewise the fact that Mrs. Kokona refers to the cases of Cakollari and Vatoci, about which she says that there is no information concerning their appeals or retrials, cannot take the matter any further.  Similarly the limited information provided by Mrs. Kokona in relation to the case of Murtati does not establish to my satisfaction that there is any real risk that the Appellant will suffer any denial of justice on his return to Albania.  
vi)	As Mr. Toby Cadman, counsel for the Respondent, submitted, and as this Court held, in Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin), the mere fact that a person’s entitlement to a retrial is restricted if the requesting Court is satisfied on the evidence that he knew of proceedings and voluntarily renounced his right to appear or to file an appeal, does not prevent compliance with a person’s Article 6 rights.  The existence of procedural steps, which an extradited person is required to satisfy before being afforded a right of retrial (i.e. demonstrating that he did not voluntarily absent from trial and filing notice of appeal within the stipulated time), does not remove the entitlement to a retrial for the purposes of section 85(5);  see Nastase at paragraph 45.
17.	For all the above reasons I conclude that the District Judge was right to decide for the purposes of section 85(5) that the Appellant would be entitled to a retrial or (on appeal) to a review amounting to a retrial upon extradition to Albania, and, pursuant to section 87, that extradition would not be incompatible with the Appellant’s Convention rights.  Accordingly, I would dismiss this appeal.
Lord Justice Gross:
18.	I agree.