Bulla, R (on the application of) v Secretary of State for the Home Department

Under section 85(8) of the Extradition Act 2003, extradition cannot proceed where the court is unable to be sure that a person convicted in absentia will have a right to a retrial on return. The assurance must apply to the particular individual and operate as a matter of right. General reliance on membership of the European Convention on Human Rights does not provide that guarantee. Where the evidence reveals unresolved qualifications, including the effect of appeals conducted in the person’s absence, the statutory requirement is not met.

The claimant appealed under section 103(1) of the Extradition Act 2003 against District Judge Evans’s decision of 26 October 2009 to send his case to the Secretary of State under section 87(3). On 3 December 2009 the Secretary of State ordered extradition to Albania.

The claimant had been convicted in absentia in Albania and argued that he would not have a right to a retrial on return. Further expert and Albanian Constitutional Court evidence was admitted. The central issue was whether the available material enabled the court to be sure that this particular claimant would receive a retrial as of right.

1. Appeal allowed. The court was required by section 85(8) of the Extradition Act 2003 to be satisfied that the minimum requirements for a fair trial were met because the claimant would be entitled to a retrial if returned to Albania.
2. The earlier decision in Armand Bogdani v Albanian Government [2008] EWHC 2065 (Admin) had concluded, on further material then available, that the previously identified uncertainties concerning retrial rights had been resolved. The fresh evidence in the present case showed that the position was more nuanced than had previously been assumed. It was not possible to determine with confidence whether representation by a court-appointed lawyer, or appeals pursued in the claimant’s absence through the Albanian courts, would deprive him of a retrial as of right.
3. The Albanian Government’s response did not unequivocally state that the claimant would receive a retrial. It acknowledged that applications for reinstatement of the time limit and review could be accepted in some cases and refused in others. The court therefore could not be sure that the claimant fell within the former category.
4. The court accordingly reverted to the approach in Government of Albania v Bleta [2005] EWHC 475 (Admin): there were too many unresolved matters to establish the statutory requirement.
5. Albania’s status as a party to the European Convention on Human Rights, and the asserted status of the Convention in Albanian law, did not itself guarantee a retrial for this claimant. The extradition decision could not stand.

• District Judge: On 26 October 2009 District Judge Evans sent the claimant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State: On 3 December 2009 the Secretary of State ordered the claimant’s extradition to Albania.
• High Court (Administrative Court): The appeal under section 103(1) was allowed because the court could not be sure that the claimant would have a right to a retrial in Albania.