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||Neutral Citation Number:  EWHC 3288 (Admin)
||Case No: CO/3762/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||21 December 2016
B e f o r e :
LORD JUSTICE TREACY
MR JUSTICE JEREMY BAKER
|| Gjergj Cupi
||- and -
||The Government of Albania
Mr Ben Watson (instructed by Hallinan Blackburn Gittings and Nott (Solicitors)) for the Appellant
Miss Hannah Hinton (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 13 December 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Jeremy Baker:
- This is an appeal, under section 103(1) of the Extradition Act 2003, ("the 2003 Act"), against the decision of District Judge Tempia, dated 26th May 2016, to send a case to the Secretary of State for the Home Department for a decision as to whether Gjergj Cupi, ("the appellant"), should be extradited to Albania.
- The main ground of appeal, for which permission was granted by the single judge, is that, having determined that the appellant had not deliberately absented himself from his trial, the District Judge was wrong to conclude that, for the purposes of section 85(5) of the 2003 Act, she was sure that the appellant would be entitled to a re-trial upon his return to Albania. The second ground, for which permission was granted, is that, as the offence of murder took place in the context of a blood feud, the District Judge was wrong to conclude that extradition would not violate his rights under Articles 2 and 3 of the European Convention on Human Rights, ("ECHR").
- The appeal is resisted by the Government of Albania, ("the respondent").
- On 23rd February 1999 the appellant was tried and convicted in his absence by the First Instance Court of Mirdita of two offences of murder, two offences of attempted murder and one offence of possession of a firearm, and was subsequently sentenced to serve a period of 25 years' imprisonment.
- The written decision of the court records, inter alia, that,
"….it was found that the defendant Gjergj Cupi is an inhabitant in the village Kacinar, of the commune Kacinar. As the result of the feud between the family Cupi and Ndreca, which dates back in 1992, Petrit Cupi was killed. At that time, the defendant Mirash Ndreca (the victim) was sentenced to 22 years' imprisonment and he suffered punishment in the respective places until the moment when the prisons were opened in March 1997. As the defendant (the victim), Mirash Ndreca, escaped from the place where he was suffering the punishment, the defendant Gjergj Cupi came up with the criminal idea to revenge for his brother, profiting even from the unfavourable situation the state went through from January to June 1997, when all the population was armed as the ammunition depots were opened.
The defendant got the gun to commit the crime and on 27.07.1997, he committed the premeditated murder of the victim Mirash Ndreca and of the other people, at the place called 'Karburanti i vjeter', at the town of Rreshen. Consequently, the other victim, Donika Kadeli, was murdered, and the citizens Preng Perkeqi and Frrok Perkeqi were wounded. The administered evidence and the interrogation of the witnesses Dode Pertena, Ndue Cupi, Vitore Perlesi, Pashk Shyti prove completely the fact that the defendant Gjergj Cupi has committed the criminal offence of the premeditated murder, of the attempted premeditated murder and of keeping of guns without a permit. The witnesses explained that the defendant Gjergj Cupi communicated with them directly or indirectly stating that 'I revenged for the blood of my brother'. So, it is obvious that the defendant Gjergj Cupi has premeditated the murder against the citizen Mirash Ndreca and Donika Kadeli, and the attempted premeditated murder against the citizens Preng Perkeqi and Frrok Perkeqi……."
- The reason for the appellant's absence from the trial was that, subsequent to the court having issued a charge and wanted order for the appellant on 8th September 1998, the appellant left Albania on 14th September 1998 and travelled to Italy, where he stayed until November of that year. He then travelled to the UK, where he has remained ever since, having been granted asylum on the basis that his surname was "Kola", and that he was a refugee from Kosovo.
- Although the court in Albania issued a warrant for the appellant's arrest on 19th March 1999, his whereabouts at that time were unknown, and it was only after the Albanian authorities were notified by the UK authorities of his presence in this country, on 19th December 2014, that they were enabled to make an extradition request, which they did, on 28th January 2015. The request was certified by the Secretary of State for the Home Department on 6th February 2015, and the appellant was arrested on 28th April 2015.
- In the meantime, according to the appellant, he first came to know that he was wanted in respect of these murders in 2004, as a result of an item on Albanian television concerning his brother Edmund Cupi, who was himself wanted in respect of other multiple murders committed in Albania prior to 1997. According to the appellant, his own name was mentioned in the same television item, as being wanted for the 1997 murders, which was confirmed by accessing the Interpol website. Although he contacted his brother Edmund and persuaded him to surrender to the Albanian authorities, the appellant decided not to do anything about his own situation and remained in the UK.
- Subsequently, on 19th November 2015, after the appellant's arrest by the UK authorities in respect of the extradition proceedings, his brother Edmund Cupi, who had by then been convicted of the pre-1997 murders, also claimed responsibility for the 1997 murders, and signed a statement to this effect.
- In these circumstances, the appellant denies that he is responsible for the 1997 murders.
- The statutory provisions of relevance to the first ground of appeal are contained in Parts 2 and 5 of the 2003 Act. Section 85 deals with cases where, as here, a request has been made to extradite an individual who has been convicted of a criminal offence in the country seeking extradition.
"85 Case where person has been convicted
This section has no associated Explanatory Notes
(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
In addition, under section 87, the court considering the extradition request must have regard to the individual's ECHR rights.
"87 Human rights
This section has no associated Explanatory Notes
(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."
This section has no associated Explanatory Notes
Moreover, under section 206, the onus of proving the matters set out in section 85 rests upon the state seeking the extradition, and must do so to the criminal standard.
"206 Burden and standard of proof
This section has no associated Explanatory Notes
(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.
(2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.
(3) Any enactment or rule of law applied under subsection (2) to proceedings under this Act must be applied as if—
(a) the person whose extradition is sought (or who has been extradited) were accused of an offence;
(b) the category 1 or category 2 territory concerned were the prosecution.
(4) Subsections (2) and (3) are subject to any express provision of this Act.
(5) In this section "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."
Review of authorities
- These provisions have been considered by the High Court and the Court of Appeal, both in relation to their general interpretation, and in particular in regard to the situation in Albania.
- In so far as the proper approach to section 85(5) is concerned in Da An Chen v Government of Romania  EWHC 1752 (Admin), Mitting J with whom Maurice Kay LJ agreed, stated,
"8. Section 85(5) requires the judge to decide whether a convicted person who has not deliberately absented himself from his trial would be entitled to a retrial et cetera in which he would have the rights specified in section 85(8). 'Entitled' as a matter of ordinary language must mean 'has the right under law'. It is the law of the requesting state which either confers or does not confer that right. It is a right which must be conferred, not merely the possibility of asking the court to exercise a discretion. Free of authority, I would hold that it is neither necessary nor right to examine what a requesting state does in practice. Its law will either provide clearly for the relevant entitlement or it will not."
- This approach was adopted by Irwin J, as he then was, in Bohm v Romanian Judicial Authority  EWHC 267 (Admin), who stated,
"5. That retrial is defined so as to include expressly the rights conferred under Article 6(3)(c) and (d) of the European Convention on Human Rights. If the answer to that third question, if the third question arises, is 'no' or 'perhaps' or 'in certain circumstances', then that is not enough, the statutory test is not met…………"
- Over the years, there have been a series of extradition cases which have had to consider the question as to whether those convicted in their absence by the Albanian courts are entitled to a re-trial for the purposes of section 85(5) of the 2003 Act. This has required the court to consider evidence relating to the relevant provisions of Albanian law, and written undertakings provided by the Albanian authorities.
- In Government of Albania v Bleta  1WLR 3576, Pill LJ, with whom Cox J agreed, dismissed an appeal by the Albanian Government against the refusal of the District Judge to send the case to the Secretary of State, stating that,
"26. However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the defendant would be entitled to the required retrial or (on appeal) review amounting to a retrial in Albania. I do not doubt the good faith in which the 'guarantee' was given but I see considerable force in the submissions of Mr Pearse Wheatley. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the defendant would receive in Albania the retrial, or review amounting to retrial, which the 2003 Act requires is extradition is to be ordered. I do not find signatures of the European Convention on Human Rights, or the UN Covenants, in themselves amount to sufficient assurance in the circumstances."
A similar conclusion was reached by Richards LJ, with whom Aikens J, as he then was, agreed, in Mucelli V Government of Albania  EWHC 2632 (Admin).
- In Bogdani v Albanian Government  EWHC 2065 (Admin), Pill LJ, with whom Rafferty J, as she then was, agreed, considered that, in the light of a further written explanation and guarantee emanating from the Albanian Ministry of Justice, the District Judge had been entitled to conclude that the appellant would be entitled to a retrial upon his extradition to Albania; albeit this was not a view which was adopted by Sullivan LJ in R (oao Bulla) v Secretary of State for the Home Department  ECHR 3506 (Admin).
- However, when three conjoined cases were heard by the Divisional Court, in R (oao Mucelli) v Secretary of State for the Home Department, Hoxhaj v The Government of Albania, and Gjoka v The Government of Albania  EWHC 95 (Admin), the opportunity was taken to carry out an extensive review, not only of the Albanian Constitution and Criminal Procedure Code, but also of previous decisions of its courts, where individuals in similar circumstances had been extradited to Albania. Cranston J, with whom Toulson LJ, as he then was, agreed, concluded that, in those cases in which the District Judge had concluded that she was sure that the appellants would be entitled to a retrial on return to Albania, she had been entitled to do so. He explained his reasoning between paragraphs 51 – 55 of the judgment.
"51. In my view the building blocks for evaluating Albanian law and practice are firstly, that Albania is a contracting state of the European Convention on Human Rights and therefore subject to the jurisdiction of the European Court of Human Rights. The Convention has been explicitly adopted by article 17 of the Albanian Constitution and under Article 122 takes precedence over domestic law. Albania is also a signatory to the Second Additional Protocol to the European Convention on Extradition which provides, as we have seen, for a guarantee of a re-trial in Article 3. There is also the enactment of Article 51.4 of Law No 10 193 of 3 December 2009. All these are a necessary, but not a sufficient, condition for a conclusion as to whether there is a practical and effective right of retrial in Albania.
52. Next, there is the jurisprudence. The ES case is the first of the trilogy of Albanian decisions pertinent to the issue before us. It is clear that that case turned in the Constitutional Court on Article 147 CCP; there is no mention of Article 450 CCP. It established that a person tried in absentia had a right to have his case re-opened, even if he had been represented at trial by a family appointed lawyer. The case then went to the Supreme Court. Professor Kokona makes the point that there is a lack of clarity in the Supreme Court in ES because of the combination of considerations of procedural principle and the factual merits of the case. In other words, as I understand it, the Supreme Court considered the merits of ES's case and that was at least an element in the court's decision to refuse his claim. Professor Kokona also explains that there was no evidence in ES of a Ministerial guarantee of a retrial. So despite that distinctly off beam answer the Albanian Ministry of Justice gave in its 22 December 2011 reply to the Secretary of State's questions about ES, it seems to me that whatever happened in ES is of no relevance to the issues before the court.
53. Mece is a crucial decision. There was a Ministerial guarantee there given to the Spanish court that Mece would have a retrial. On his return to Albania Mece applied to the Supreme Court for a retrial under Article 450 CCP. The Supreme Court in its 17 September 2010 decision held that Mece should obtain a retrial. The Ministry of Justice has explained that Mece changed Albanian law, that it is binding on lower courts and that Mr Mucelli falls exactly within the ruling. Professor Kokona accepts Mece as a positive step, although she points to the conflicting use of Article 147 CCP in ES and Article 450 CCP in Mece. She accepts, however, that Bogdani followed Mece. Mr Blaxland QC contends that there is no evidence about whether Mece has been retried. Even if it is not too late in the day to be advancing that point, the fact is that we do know what happened in Bogdani. To my mind that is determinative.
54. Bogdani followed his extradition from this country consequent on the decision of this court:  EWHC 2065. Applying Mece, the case was sent to the Court of Appeal in Gjirokastër, and we have Judge Qirjazi's report about how the case is proceeding. Professor Kokona majors on the procedural hurdles and delays in the case, but these are explained by the Ministry of Justice. The crucial point is that the Supreme Court has on at least two occasions held that there is a right of retrial and we have chapter and verse on what happened in Bogdani's case. There were delays but they have been explained. Mr Mucelli will need to act quickly on return, and he will need a lawyer to make his Supreme Court application. Despite the absence of legal aid in Albania for the purpose, there is no evidence before us that Mr Mucelli will not be able to make a timely application or obtain legal assistance.
55. In my view, the law and practice in Albania is now such that there is no real risk that Mr Mucelli will suffer a flagrant denial of justice on his return to Albania. He is entitled to a retrial of the merits of the case against him. As for Messrs Hoxhaj and Gjoka, I cannot see that the District Judge erred in her conclusion that she was sure that they would be entitled to a retrial or (on appeal) a review amounting to a retrial on their return to Albania. I am fortified in these conclusions because of the history of Albanian extradition attempts. The Albanian authorities must be acutely conscious of the fact that these present cases will be observed carefully when these three persons are extradited. There is also the scrutiny of Albanian extraditions in the European Court of Human Rights, an ongoing scrutiny because, as Professor Kokona explains, the Sulejmanni case is still before that court."
- Since then, the Divisional Court has had to consider two further appeals in which Mucelli & others was sought to be distinguished, on the basis that, following their return to Albania, those individuals whose cases were considered in Mucelli & others had not received a retrial.
- By the time that the first of these appeals was heard, Zeqaj v Government of Albania  EWHC 261 (Admin), it was apparent that whilst Mr Mucelli's case had been sent back for retrial by the Court of Appel in Tirana, and Mr Hoxha's case was awaiting a decision by the Supreme Court in Albania, Mr Gjoka had had his application for a retrial refused. However, the reason why Mr Gjoka's application for a retrial had been refused was that, once back in Albania, he had failed to prove that he had not been on notice of the previous criminal proceedings, and was therefore not entitled to a retrial.
- The significance of the evidence concerning Mr Gjoka was considered by Gloster J, as she then was, with whom Gross LJ agreed,
"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."
The court proceeded to consider the evidence provided by the Government of Albania, both in relation to its interpretation of its laws, and in relation to those individuals whose cases had been considered in Mucelli & others, and stated, in relation to the latter,
"16. 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 judgement panel. Mrs. Kokana'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 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 not 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.
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  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."
- In the final case of Bardoshi & another v The Government of Albania  EWHC 2756 (Admin) the court comprised Laws LJ and Cranston J, both of whom contributed to the judgment. It is clear that the court had before it a letter dated 30th July 2012 setting out the position of the Albanian Ministry of Justice in relation to the appellant's right to a retrial on his return to Albania, in terms that it, "guarantees .... the exercise and observation of the right of re-trial" of the appellant. Firstly, it explained that under Articles 116 and 120 of the Albanian constitution and Article 10 of the Albanian criminal procedure code, international ratified agreements form part of domestic law, and prevail over other domestic laws. In this regard Article 6 of the ECHR enjoys a privileged status by reason of its citation in the constitution. Secondly, under Article 147.2 of the criminal procedure code, a defendant convicted in absentia can, upon his return to Albania, and if he proves that he has not been notified of the original proceedings, request that his appeal be deemed in time. Thirdly, that such an appeal will be a retrial. Fourthly, it set out two decisions of the Albanian Constitutional Court concerning the appellant's right to a retrial: Decision No 812 dated 17th September 2010, FM [Mece] which emphasised the obligation to guarantee a person being extradited the right of retrial deriving from Albania's ratification of the European Extradition Convention, and; Decision No 30 dated 17th June 2010 which upheld the legitimacy of a trial of a person in his absence provided he had been informed of it and had knowingly waived his right to participate.
- In the light of this letter, Laws LJ concluded,
"58. Consequently, in respect of the claim that the appellant would not receive a retrial we conclude that there is no evidential basis to depart from the decisions of this court in Mucelli and Zeqaj. In this case Albania has given an explicit guarantee that the appellant will enjoy a right of retrial in its letter dated 30 July 2012. There is no basis for the appellant to assert that he would not receive a retrial. This court is not concerned primarily with doctrinal niceties about what may or may not be the position in Albanian law but with whether the right to a retrial or on appeal a review is a real and effective right. Nothing we have heard persuades us that this appellant will not be able to exercise the right the Albanian Ministry of Justice has guaranteed."
- In the written submissions on behalf of the appellant it is pointed out that, since Mucelli & others, one of the appellants, namely Mr Gjoka, has not received a retrial upon his return to Albania, and that the same assurance to provide Mr Gjoka with a retrial is relied upon by the Albanian authorities in the present appeal. It is submitted that in neither of the two most recent decisions, Zeqaj and Bardoshi, did the court have before it either the written assurance which had been provided in Gjoka, nor the decision of the Constitutional Court. Moreover, that the court in Zeqaj was wrong to conclude that section 85(5) of the 2013 Act and/or Article 6 ECHR would be satisfied, where the Albanian court could deprive him of a retrial on the basis of a subsequent determination that he had known of the original criminal proceedings and deliberately absented himself from them. It is pointed out that both the written assurance and decision of the Constitutional Court in Mr Gjoka's case are now available, and it is submitted that the Constitutional Court's determination that he had waived his right to attend those proceedings was flawed. In these circumstances it is submitted that the District Judge was not entitled to conclude that she could be sure that upon his return to Albania, the appellant would be entitled to a retrial.
- In his oral submissions, Mr Watson, contended that Mucelli & others was a watershed decision, in that it represented the first occasion upon which the respondent had provided a ministerial guarantee that, because of the binding nature of Mece in relation to the interpretation of Article 450 of the Criminal Procedure Code, the appellants in that case would be entitled to a retrial. Moreover, that the guarantee was absolute in nature, and it was on this basis that the court reached its decision to uphold the extradition decisions in that case. Mr Watson submitted that the cases dealt with by this court prior to Mucelli & others had been based upon Article 147, and did not provide for an absolute guarantee, and that in the cases dealt with after Mucelli & others, the court had misunderstood the position, and therefore underestimated significance of the Albanian court not to grant a retrial to Mr Gjoka.
- On behalf of the respondent it is submitted that, as there has been no material alteration in Albanian law since the decision in Mucelli & others, this court should adopt the reasoning in that case, and dismiss the appeal on the basis that the District Judge was entitled to conclude that the appellant would be entitled to a retrial on his return to Albania. It is submitted that the Constitutional Court's determination in Mr Gjoka's case was one which they were entitled to make, and that bearing in mind what was said in Zeqaj, this does not adversely affect the appellant's right to a retrial in this case.
- In her oral submissions, Miss Hinton pointed out that it was not suggested by the respondent that the appellant had had knowledge of the original criminal proceedings in Albania, and deliberately absented himself from them. She submitted that the guarantee which had been provided by the respondent to those involved in Mucelli & others, Zeqaj and Bardoshi, was to the same effect as that provided to the appellant in the present case, which was not an absolute one, but, if the issue was subsequently raised, subject to the Albanian court not being satisfied that the appellant had been aware of the original proceedings, and had deliberately absented himself from them. Moreover, that as explained in Zeqaj and accepted in Bardoshi, this was a sufficient entitlement to a retrial, and sufficed for the purposes of section 85(5) of the 2003 Act and Article 6 ECHR.
Decision of the District Judge
- In her decision, the District Judge noted that the respondent had not sought to submit that the appellant was a fugitive from justice, and that in the absence of any evidence that he was, she concluded that he had not deliberately absented himself from the original criminal proceedings. She noted that in so far as Mr Gjoka was concerned, following his extradition to Albania, he had not been afforded a retrial, but that this was on the basis that the Constitutional Court had held, on the facts of his case, that he had been aware of the criminal proceedings against him. The District Judge referred to the case of Zeqaj, and noted that the court had rejected the submission, made in that case, that what had happened to Mr Gjoka on is return to Albania rendered the retrial provisions either unclear or discretionary. In those circumstances she stated that,
"62. I am satisfied the assurance provides a practical and effective right of a retrial consonant with article 6 and, on the evidence before me if extradited, Mr Cupi will have a retrial that is article 6 compliant."
- As I have already observed, in Mucelli & others, this court took the opportunity to make an extensive review of the Albanian Constitution and its Criminal Procedure Code. Therefore, whatever the position was prior to that decision, this court determined that both the law and practice in Albania was compliant with the Article 6 rights of those who were extradited to Albania, having previously been convicted in their absence.
- In so far as the evidential basis upon which that decision was reached, for my own part, I do not consider that, either expressly or by implication, it can be said to have been based upon the respondent having provided those whose return it sought with an absolute guarantee that, whatever the state of their knowledge of the original criminal proceedings, they would be entitled to a retrial. Not only does this not arise from the extracts from the respondent's documentation included within Cranston J's judgment, but there is nothing in the judgment itself which would be sufficient to imply that this was the basis of the court's decision.
- Instead the court took into account the binding nature of the decision of the Albanian Supreme Court in Mece, that the effect of the ministerial assurance which had been provided to Mr Mece, was that Article 450 of the Criminal Procedure Code would be interpreted, so as to expand the instances in which an individual would be entitled to a retrial, to include those who had been provided with such an assurance. This comprised a crucial alteration in the retrial rights of those extradited to Albania on the basis of a Ministerial assurance, in that the wording of Article 450 clearly does not encompass such individuals, and that it was only as a result of Mece that Article 450 was thereafter to be interpreted to include such persons.
- However, it is apparent that Article 450 is not the only part of the Albanian Criminal Procedure Code which is of potential relevance to such individuals, in that Article 147 sets out the circumstances and time limit in which an appeal may be made, and in particular Article 147.2 and 147.3 which provide,
"147.2 If the decision was rendered in his absence, the defendant may request the reinstatement of the time-limit to appeal when he proves that he has not been notified of the decision.
147.3 The request to reinstate the time-limit is submitted within ten days from the disappearance of the fact which constituted the mischance or any force majeure, whereas in cases provided for in the paragraph 2 from the day when the defendant has received effective notice thereof. The reinstatement of the time-limit is not permitted more than once for each party for each stage of the proceedings."
Although the application of Article 147.2, which relates to the defendant's knowledge of the original criminal proceedings, was not required to be considered in detail in Mucelli & others, nevertheless the court clearly had it in mind, as it was set out in full when the court undertook its review of the Albanian Constitution and legislation. It is this Article which enables the Albanian courts to qualify an individual's entitlement to a retrial, not as a matter of discretion, but only in the event that they are not satisfied that the individual had not been notified of the original criminal proceedings. In these circumstances, I do not consider that there is any question of the court in the subsequent cases of Zeqaj and Bardoshi having misunderstood the position. On the contrary, unlike the court in the earlier case of Mucelli & others, and as a result of what had happened upon Mr Gjoka's return to Albania, the court in the subsequent cases was obliged to consider both of these aspects of the Albanian legislation.
- It is not without significance that the court which considered one of the subsequent cases, which it is submitted had misunderstood the position in Mucelli & others, namely Bardoshi, comprised not only Laws LJ, but Cranston J who had given the lead judgment in Mucelli & others. The judgment in Bardoshi, to which they both contributed, not only made no reference to any absolute guarantee having been provided by the respondent in the earlier case, but it is clear from their acceptance of what had been said in Zeqaj, that it was implicit that this had not been the basis of the court's understanding of Mucelli & others. On the contrary, having noted that in Zeqaj the court had taken the view that the Albanian Constitutional Court's decision not to provide Mr Gjoka with a retrial did not have the effect of depriving him of his Convention rights, Laws LJ observed that both that decision and Mucelli & others had been noted by the Supreme Court without comment in Kapri  UKSC 48.
- In so far as the criticism which is made of both Zeqaj and Bardoshi is concerned, and in particular the court's conclusion in the former case, that the restriction of an individual's entitlement to a retrial does not necessarily prevent compliance with his Article 6 rights, those decisions are supported by analogous cases relating to other countries.
- In relation to the situation in Italy, where a retrial is excluded if the judge can, on the evidence, demonstrate that the defendant knew of the proceedings and voluntarily renounced his right to appear, it was held in Nastase v Office of the State Prosecutor, Trento, Italy  EWHC 3671 (Admin), that he would still be entitled to a retrial for the purposes section 20(5) of the 2003 Act, which is in similar terms to section 85(5). As Rafferty LJ, sitting with Kenneth Parker J, pointed out,
"45. The existence of procedural steps does not remove the entitlement to a retrial. Rather, the Italian authorities must be permitted to regulate their own proceedings by imposition of their own rules. Section 20 may create entitlements, but procedural rules set parameters within which such rights are exercisable. In my view the evidence demonstrates that s.20(5) is satisfied by the provisions recited in the material provided to this court and to the District Judge. I am not persuaded that Nastase would be excluded from those protections. I conclude that the District Judge was correct to answer the question set out in section 20(5) of the 2003 Act in the affirmative."
- This decision was followed in relation to Romania, in BP v Maramures, Romania  EWHC 3417 (Admin), where Cranston J, with whom Laws LJ agreed, concluded,
"To my mind the appellant has an entitlement in this case to a retrial in Romania. Article 466 provides that. There is no discretion in the Romanian court to deny that right. Admittedly the Romanian court could decide that the appellant had appointed Mr Octavian to represent her, through her mother or otherwise, and therefore does not qualify for a retrial under Article 466. But that is a 'procedural step', as it was described in Nastase. There Rafferty LJ held that, although the Italian court could theoretically refuse a retrial where it is satisfied that a requested person knew of the original proceedings and where is was satisfied that a requested person knew of the original proceedings and voluntarily absented himself, that was a procedural step which did not detract from the unconditional nature of the legal right………..."
- In these circumstances, I do not consider that any valid criticism can be made of either of the more recent cases relating to Albania, namely Zeqaj or Bardoshi, and that despite the ability of an Albanian court to decline to retry an extradited individual, on the basis that he knew of the original proceedings and deliberately absented himself from them, this does not amount to a deprivation of his Article 6 rights. It is not a matter of discretion, and he still retains an entitlement or "right under law" to a retrial.
- Unlike the court in the two earlier cases of Zeqaj and Bardoshi, this court now has a copy of not only of the assurance provided in Gjoka, but also a copy of the decision of the Constitutional Court. In so far as the former is concerned, it is apparent that it is in broadly similar terms to assurances provided in other cases, and in any event was considered in detail by the court in Mucelli & others. In common with the other assurances, and indeed the assurance in the appellant's case, I do not consider that it provided for an absolute guarantee that Mr Gjoka was entitled to a retrial, but is limited to circumstances where he was unaware of the original criminal trial, and had not deliberately avoided attending it, or has not applied for a retrial in time upon his return to Albania.
- In relation to the decision of the Constitutional Court, not only does it appear that there is a significant degree of summarisation of the evidence, but bearing in mind the inevitable difficulties with translation, I do not consider that the criticism which the appellant seeks to make of its basis is well founded. The court clearly had in mind the appropriate criteria upon which to reach their decision, namely whether the appellant had knowledge of the original criminal proceedings, and whether he deliberately decided not to attend. Furthermore, as Laws LJ pointed out in Bardoshi, under Article 147.2 of the Albanian Criminal Procedure Code, the burden of proof rests upon the individual to establish that he has not received due notice of the original proceedings, before being entitled to a retrial. In these circumstances, it seems to me that, save upon the clearest of evidence, this court would be slow to reach the conclusion that the Constitutional Court in Albania did not have sufficient evidence upon which to reach their conclusions in relation to these matters.
- In the light of these matters, it seems to me that what happened to Mr Gjoka upon his return to Albania, does not have the effect contended for by the appellant, in that he was neither entitled under Article 6, nor was he provided with, an absolute guarantee that he would receive a retrial in the event that the Albanian court decided that he had unequivocally waived his right to attend the original criminal proceedings. Moreover, once having returned to Albania, the Constitutional Court decided that this is what had occurred, thus disentitling him from having a retrial of the original proceedings.
- In these circumstances, I am satisfied that the position of the appellant is not materially different from the position of the appellants in the cases of Zeqaj and Bardoshi. As a result of the combination of Albanian Constitutional Law and the Albanian Criminal Procedure Code, in particular Articles 147 and 450, as interpreted by Decision No 812 dated 17th September 2010, FM [Mece], and Decision No 30 dated 17th June 2010, the appellant does, upon his return to Albania, have an effective right of retrial in relation to the matters for which extradition has been sought by the respondent.
- It is suggested on behalf of the appellant that there is some material which is available to the effect that, notwithstanding the assurance given to the court in the appellant's case, the Albanian authorities may consider him to have deliberately absented himself from the original criminal trial. This being gleaned from a report from the prosecutor's office dated 16th July 2015 which stated,
"……. Gjergj Zef Cupi had committed the crimes for which he had been declared guilty and convicted with 25 years' imprisonment, had escaped in unknown direction, avoiding on purpose the investigation, arbitration at all its levels, so that he not serve the sentence with imprisonment for the crimes committed by him. In these circumstances, 'de facto', he had been fully aware that he would be investigated, tried and convicted with imprisonment for the crimes committed."
- It seems to me that not only does this statement suggest that the appellant had disappeared at an early stage of the investigation, and certainly prior to his being notified of his trial, but the fact that the prosecutor may believe that the appellant absented himself from the original criminal trial, is not same thing as having sufficient evidence to establish it; a matter which the respondent has not claimed that it has available to it. In any event, it is apparent from the authorities to which I have just referred, that if the respondent was able to obtain such evidence and sought to deploy in the Albanian court, this would not have the effect of depriving the appellant of his Article 6 rights.
- At the hearing before the District Judge, the appellant relied upon evidence provided by Antonia Young, an anthropologist specialising on the Balkan region. She gave evidence concerning the existence of blood feuds in Albania, and that it is the eldest son who is usually the target of familial revenge. Moreover, that despite the passing of legislation seeking to combat the practice, fatal revenge still takes place.
- The criticism of the District Judge is limited to her finding, in the light of Mrs Young's evidence, that the blood feud in the present case is not active. It is accepted on behalf of the appellant that there was other evidence upon which the District Judge relied for her determination that extradition would not violate the appellant's article 2 and article 3 rights, and therefore the appellant seeks an order for redetermination of this issue under section 104(1)(b) of the 2003 Act.
- On behalf of the appellant it is accepted that during the course of cross-examination Mrs Young did appear to concede that the blood feud in this case was not active. However, it is pointed out that in re-examination Mrs Young reverted to her position in examination in chief, that the blood feud was still active, which reflected what she had said in her original report.
- The assessment of Mrs Young's evidence was a matter for the District Judge, and she was entitled to take the view that Mrs Young's concession in cross-examination was not simply a mistake on her part, but reflected the reality of the evidence which she provided to the court. In this regard, it is clear, from the summary which the District Judge provided of her evidence, that it was based on generalities, rather than specific to the existence of any feud relating to the appellant's family. She noted that the appellant had been in Albania for a period of time, between the killings in 1997 and his travel to Italy in the following year, without there being any evidence of violence or the threat of violence towards him. Moreover, since his brother Edmond's apparent confession to the 1997 murders, there was no evidence that he has been subjected to any violence or threats of violence. Indeed, throughout the whole period, since the 1997 murders, there is no evidence that any member of the appellant's family has been subjected to violence or the threat of violence relating to the alleged blood feud. Nor was there any evidence to the effect that this has only been avoided by the family living a closed life, away from society.
- In the light of this evidence, I am satisfied that, even if some confusion had arisen in Mrs Young's mind during the course of cross-examination, the evidence before the District Judge amply enabled her to reach the finding which she did, namely that there was insufficient evidence before her that any blood feud remained active in this case. Moreover, that in the light of this and other evidence, from the UN as to the lessening occurrence of revenge crimes, and the respondent as to the lack of any evidence that convicted murderers had been attacked whilst in prison, the District Judge was entitled to accept that the written assurance which the respondent had provided dated 20th January 2016, that whilst in prison the appellant would be afforded any necessary protection, would be effective, and that the appellant's extradition would not violate his rights under Articles 2 or 3 of the ECHR.
- In these circumstances, as this was the only criticism made under the second ground of appeal, and bearing in mind my conclusion in relation to the first ground, this appeal falls to be dismissed.
Lord Justice Treacy:
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