Mucelli, R (on the application of) v The Government of Albania

For extradition after an in-absentia conviction, a diplomatic assurance is not enough by itself. The requesting state must provide a practical and effective right to a retrial or review amounting to a retrial, with the relevant Article 6 safeguards. The court must assess the requesting state’s law and practice, principally through expert evidence, and must be sure that the right exists where Extradition Act 2003, section 85(5), applies. Treaty obligations and statutory provisions may be necessary building blocks but are not conclusive. Evidence that the requesting state’s highest court has established the right, together with evidence that the procedure operates in practice, may remove a real risk of a flagrant denial of justice.

Three Albanian extradition cases were before the Divisional Court. Mucelli sought judicial review of the Secretary of State’s decision to maintain an extradition order after receiving further evidence about Albania’s retrial procedure. Hoxhaj and Gjoka brought statutory appeals under the Extradition Act 2003 against District Judge Tubbs’s decisions sending their cases to the Secretary of State. Each had been convicted in absentia and had not deliberately absented himself.

The central issue was whether, on surrender, each person would have a practical and effective right to a retrial, or on appeal a review amounting to a retrial, compliant with Article 6 of the European Convention on Human Rights.

Outcome. The claim for judicial review and both statutory appeals were dismissed.

1. In Mucelli’s judicial review, the Secretary of State had to reconsider the extradition order if a material change or supervening event made extradition incompatible with Convention rights. The relevant question was whether there were substantial grounds for believing that return would create a real risk of a flagrant denial of justice. The court applied the approach in McKinnon v Government of USA [2007] EWHC 762 (Admin) and R v Special Adjudicator (Ullah) [2004] UKHL 26.
2. For Hoxhaj and Gjoka, section 85 of the Extradition Act 2003 required the court to determine whether each person was absent from trial, whether he deliberately absented himself, and, if not, whether he would be entitled under Albanian law to a retrial or an appellate review amounting to a retrial with the relevant Article 6(3) rights. The court had to be sure that the right existed; a merely possible or conditional entitlement would not suffice. The reasoning in Bohm v Romanian Judicial Authority [2011] EWHC 2671 was applied.
3. The assessment of Albanian law and practice had to be based principally on expert evidence. The court should resist interpreting foreign constitutional and statutory materials without the necessary legal context.
4. The Albanian Constitution, the Second Additional Protocol to the European Convention on Extradition, and article 51.4 of Law No 10 193 were necessary building blocks but did not, by themselves, establish a practical and effective right. The Constitutional Court’s decision in Spahaj (ES) was not relevant because it involved no ministerial guarantee. The Supreme Court’s decision in Mece was crucial, and the subsequent decision in Bogdani showed that the retrial procedure operated in practice. Procedural delay did not establish a real risk where it had been explained.
5. The court was therefore satisfied that Mucelli would be entitled to a retrial and that Hoxhaj and Gjoka would be entitled to a retrial or review amounting to a retrial. There was no real risk of a flagrant denial of justice.

1. High Court (Administrative Court), Divisional Court. The court dismissed Mucelli’s judicial review claim and the statutory appeals brought by Hoxhaj and Gjoka.
2. District Judge. District Judge Tubbs sent the Hoxhaj and Gjoka cases to the Secretary of State after finding that they would be entitled to a retrial or review amounting to a retrial on return to Albania.
3. Earlier proceedings concerning Mucelli. An earlier statutory appeal was dismissed as out of time by the High Court in [2007] EWHC 2632, and that decision was upheld by the House of Lords in [2009] UKHL 2.