Zeqaj v Government of Albania

For the purposes of Extradition Act 2003, section 85(5), an entitlement to a retrial need not be automatic in the sense of arising without procedural steps. A person may be entitled to a retrial where the requesting state’s law requires an application, compliance with a time limit, or proof of a relevant factual condition. The question is whether the procedures provide a practical and effective right of retrial, consistent with Article 6 of the Convention. A guarantee that identifies the applicable procedures may satisfy that requirement. The existence of procedural requirements does not, without more, make the right discretionary or ineffective.

The appellant appealed under section 103 of the Extradition Act 2003 against a District Judge’s decision to send the extradition matter to the Secretary of State for consideration. Albania sought his extradition to serve a 23-year sentence imposed in his absence for murder and firearms offences.

The District Judge found that the appellant had not deliberately absented himself from trial and that he would be entitled to a retrial in Albania. The appeal challenged the sufficiency of the evidence supporting that conclusion. The central issue was whether the Albanian guarantees and procedures gave the appellant an entitlement to a retrial within section 85(5), despite the need to follow procedural steps.

1. Appeal dismissed. The court admitted and considered further evidence without setting or departing from any precedent governing the receipt of further evidence on appeal.
2. Under section 85(5) of the Extradition Act 2003, once a person convicted in absence is found not to have deliberately absented himself, the court must consider whether he would be entitled to a retrial or, on appeal, a review amounting to a retrial. That inquiry proceeds on the hypothesis of the factual finding made by the extradition judge. It does not require the court to decide that the requesting state would be bound to grant an automatic retrial if it reached a different factual conclusion.
3. Following Mucelli, the Albanian Ministry of Justice guarantees and supporting material established a practical and effective right of retrial. The appellant had to apply within 10 days to reinstate the relevant time limit, after which the evidence indicated that he would receive a rehearing with representation and the ability to examine witnesses.
4. The court rejected the argument that the right was ineffective because it was described as not automatic. Procedural requirements, including demonstrating that the person had not voluntarily absented himself and filing an application within the stipulated period, do not remove an entitlement for section 85(5) purposes. The court relied on and applied the reasoning in Nastase at paragraph 45.
5. The evidence concerning the later proceedings of persons involved in Mucelli, and the limited material concerning other Albanian cases, did not establish a real risk of a flagrant denial of justice or demonstrate that the retrial procedures were purely discretionary.
6. Extradition would therefore not be incompatible with the appellant’s Convention rights under section 87 of the Extradition Act 2003. The District Judge’s decision was upheld.

• Westminster Magistrates’ Court: District Judge Wickham decided on 12 March 2012 that the matter should be sent to the Secretary of State for consideration and held that the appellant would be entitled to a retrial in Albania.
• High Court (Administrative Court): The appeal under section 103 of the Extradition Act 2003 was dismissed. The court held that extradition was not incompatible with the appellant’s Convention rights.