09 OCT 2014
Sadushi v The Government of Albania  EWHC 2756 (Admin); (2014) PLLR 103
Queen’s Bench Division, Administrative Court, Laws LJ
7 August 2014
Considering an appellant’s extradition to Albania, the court was satisfied that the appellant would receive a retrial based on Albanian law and the representations of the Albanian Ministry of Justice. The court also found that judicial corruption in Albania did not rise to a level that would have created a real risk of a flagrant breach of the appellant’s right to a fair trial.
(1) The appellant, Bardoshi, an Albanian national, appealed against a decision by District Judge Grant to send his case to the SSHD to decide whether he should be extradited to his native Albania. The SSHD ordered his extradition on 28 April 2013. The named claimant, Sadushi, died before the hearing of this appeal and his case was not considered.
(2) The appellant had been convicted of premeditated murder and possession of firearms in Albania in 2000 and had been sentenced to 18 years in prison. The crime took place in 1997.
(3) Extradition between the United Kingdom and Albania is governed by Part 2 of the 2003 Act and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. The Order designates Albania, for the purposes of ss.71(4), 73(5), 84(7) and 86(7) of the Act, as a territory which does not have to furnish evidence of a prima facie case.
(4) The appellant entered the UK illegally. He was arrested following a request by Albania and remanded in custody. His case was heard in the Magistrates Court on 21 February 2013. The documentary formalities were in order, and the appellant raised claims against his extradition under the ECHR: Article 2 (danger of death because of what was said to be the Albanian tradition or practice of blood feud); Article 3 (prison conditions); Article 6 (judicial corruption); and Article 8 (the appellant and his partner have a young son aged 19 months at the time of the hearing in the magistrates court). The question of a retrial was raised under section 85 of the Extradition Act, and there was also an argument concerning the passage of time since the crime and/or the Albanian proceedings. The District Judge rejected all of these submissions.
(5) The court considered that there were two central issues of the appeal:
(1) judicial corruption in Albania; and
(2) whether, if returned, the appellant would clearly be entitled to a re-trial.
(6) HELD: The court dismissed the appeal on both grounds.
(7) On the issue of corruption, the court found that the ‘test is whether there exists a real risk that the requested person would suffer a flagrant breach of the right to a fair trial,’ citing Othman v UK. This test is ‘stringent,’ going ‘beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the contracting state itself.’ Council of Europe countries ‘should readily be assumed capable of protecting an accused against an unjust trial.’
(8) The High Court of Justiciary Appeal Court had examined the issue of corruption within the Albanian judiciary in Kapri v Lord Advocate  HCJAC 33. While there was evidence of unfairness, there was ‘no cogent or compelling evidence, that there are substantial grounds for believing that the level of corruption in the Albanian judicial system is at the "systemic" level such that it falls into that "extreme" category whereby the removal of anyone to that country would necessarily result in a violation of a Convention right.’
(9) The court noted that the Kapri decision was not binding as it was in a separate jurisdiction, but that it was ‘highly persuasive,’ as the relevant law applied to the whole of the United Kingdom. The court found no basis for departing from Kapri, as it did not find error in its application of the law, and found that it should follow the factual findings of the earlier court ‘unless they are demonstrably wrong or substantially undermined by evidence not before the court.’ The court declined to find that cases on extradition should be read across in the same manner as country guidance asylum cases, but that in this case, the standard quoted above was met.
(10) The court found that there was no basis on which to conclude that Kapri was demonstrably wrong, and was not undermined by other evidence. The court considered one new piece of evidence from the Group of States Against Corruption, GRECO, which found that although the perception of corruption within the Albanian judiciary remains high, there were continuing efforts to ameliorate it. If anything, this evidence supported the conclusions in Kapri, and the court dismissed the appeal as it related to judicial corruption.
(11) Extradition is barred for individuals who have been tried and convicted in absentia and with no right of retrial. Section 85(5) of the Extradition Act 2003 requires the court to decide whether the person would be entitled to a retrial or, on appeal, a review amounting to a retrial. The appellant argues that he was unaware of his trial at the time, and was living in Italy at the time of the commission of the offences. He contends that he is not assured of a right of retrial on his return.
(12) The court noted that earlier courts had considered the question of retrial on return to Albania, including two in which the uncertainties around retrials led the court to hold that extradition should not take place.
(13) The Albanian Ministry of Justice produced a letter in this case guaranteeing the observation of the right of retrial for the appellant, and noted the appellant’s right to retrial under the European Convention on Extradition’s Second Additional Protocol, the ECHR, and Albanian law.
(14) The appellant introduced evidence from an individual who is now a lawyer in the Supreme Court of Albania, and was offered as an expert. The expert reports argued that despite the statements of the Albanian government, the appellant may not receive the right of the retrial, as it is discretionary to the courts and cannot be compelled by the Ministry of Justice. The expert offered a second report in this appeal after his initial report had been found not to offer any cogent evidence to revisit the issue of retrial in Albania as it had been decided in earlier cases. The court looked disfavourably on the second report, as there had been no substantial change in law or practice to justify it.
(15) The court rejected the expert’s conclusion and accepted the Albanian Ministry of Justice’s statement that case law would dictate that the appellant receive a retrial, and the courts would follow that case law. The court also rejected the expert’s submission that a new case changed the status of individuals who had known about the outcome of a trial under Albanian law. The court further rejected the submission that because the appellant’s co-defendant had brought an appeal, the appellant would be unable to seek a retrial; the court also found this stance would violate ECHR Article 6, which holds a privileged status in Albanian law.
(16) All other points raised were dismissed summarily, as the appellant admitted these were unlikely to prevail on their own.
The appeal was dismissed.
 – Right to a fair trial
- – Effect of precedent in other jurisdictions
 – Application of Kapri case
 – Application of Kapri case; country guidance
 - Application of Kapri case factual findings
 – New evidence on judicial corruption
 – New reports by experts in appeals
 – Rejection of expert evidence
 – Rejection of expert evidence
- – Rejection of expert evidence
 – Article 6 ECHR
- - Conclusion