Bogdani v Albanian Government

For the purposes of section 85(5) of the Extradition Act 2003, a person convicted in absence must have a legal entitlement to a retrial or review amounting to a retrial, carrying the minimum rights in section 85(8). The requesting state’s law must provide that entitlement with sufficient clarity. The court may consider fresh evidence on appeal where justice requires the best available material, particularly in extradition cases, although unexplained delay and attempts to keep evidence back may affect admissibility and weight. Clear explanations of foreign law, supported by relevant case law and assurances, may establish the required protection.

The Albanian Government sought the appellant’s extradition to serve a sentence imposed after his conviction in absentia. The District Judge found that, under Albanian law, the appellant would be entitled to a retrial or a review amounting to a retrial, with the rights required by section 85(8) of the Extradition Act 2003. The Secretary of State subsequently ordered extradition under section 93(4).

The appellant appealed under section 85(5), arguing that Albanian law, particularly Article 147 of the Albanian Code of Criminal Procedure, did not provide a sufficiently clear entitlement. The Administrative Court also considered fresh evidence concerning the operation of that provision and the effect of a possible further appeal in Albania.

1. Appeal dismissed. The District Judge was entitled to find that the appellant would have a legal entitlement to a retrial or review amounting to a retrial, satisfying section 85(5) and the minimum safeguards in section 85(8) of the Extradition Act 2003.

2. The relevant law must be sufficiently clear. The question is whether the law of the requesting state confers the required right, rather than merely providing a possibility of asking a court to exercise a discretion. The court must protect individual liberty, but must also approach extradition cases with due regard to international comity and the need to construe foreign legal material on the best available evidence.

3. Fresh evidence was admitted. The earlier appellate hearing had expressly sought further material so that the issue could be resolved on the best material available. The approach in Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) and The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin) supported admission where necessary to do justice, although the court should scrutinise unexplained delay.

4. On the evidence, Article 147 provided that effective notice occurred when the returning defendant signed the record of the conviction. The ten-day period then began, and Article 148 enabled repetition of procedural steps in which the defendant had been entitled to participate. The late assertion that a further appeal might prevent reliance on Article 147 was unsupported by any adequate explanation and did not justify a different construction.

5. The later explanations and Albanian case law materially clarified the earlier assurances. The concerns identified in The Government of the Republic of Albania v Bleta and another [2005] EWHC 475 (Admin) and Mucelli v The Government of the Republic of Albania and another [2007] EWHC 2632 (Admin) were therefore overcome on the evidence in this case. The appellant was to receive assessment of his legally aided costs, with no order as to other costs.

• District Judge: Found under section 85(5) of the Extradition Act 2003 that the appellant would be entitled to a retrial or review amounting to a retrial.
• Secretary of State: Ordered extradition under section 93(4) of the Extradition Act 2003.
• High Court (Administrative Court): Dismissed the appeal and upheld the District Judge’s conclusion.