Cupi v The Government of Albania

For section 85(5) of the Extradition Act 2003, an effective legal entitlement to a retrial may remain subject to procedural steps, including proof that the requested person was unaware of the original proceedings. A requesting state need not provide an absolute guarantee of retrial in every circumstance. The entitlement is assessed on the hypothesis that the person did not deliberately absent himself from trial. A court may determine that a right is effective even though the requesting state’s court can refuse a retrial after finding that the person knew of the proceedings and voluntarily waived attendance. Extradition is compatible with Articles 2, 3 and 6 of the ECHR where the evidence does not establish a continuing blood-feud risk or a denial of effective retrial rights.

The appellant appealed under section 103(1) of the Extradition Act 2003 against District Judge Tempia’s decision to send the extradition case to the Secretary of State. He had been convicted in absentia in Albania of murder, attempted murder and firearm offences. The District Judge found that he had not deliberately absented himself from trial, but was satisfied that he would be entitled to an Article 6-compliant retrial on return.

The appellant challenged that conclusion under section 85(5), relying particularly on the subsequent treatment of Mr Gjoka after extradition. He also argued that extradition would violate Articles 2 and 3 ECHR because the offences arose from a blood feud. The central issues were whether the Albanian retrial arrangements provided an effective legal entitlement and whether the evidence established a continuing risk from the alleged feud.

1. The appeal was dismissed. The District Judge was entitled to conclude under section 85(5) of the Extradition Act 2003 that the appellant would have an effective right to a retrial on return to Albania.
2. The court followed the reasoning in R (oao Mucelli) v Secretary of State for the Home Department, Hoxhaj v The Government of Albania, and Gjoka v The Government of Albania [2012] EWHC 95 (Admin). That decision had examined Albanian constitutional and procedural law and concluded that the retrial arrangements complied with Article 6. It was not based on an absolute guarantee that every extradited person would receive a retrial regardless of knowledge of the original proceedings.
3. Articles 147 and 450 of the Albanian Criminal Procedure Code, read with the decisions in Mece, were material. Article 450 had been interpreted to expand retrial rights for persons extradited on a ministerial assurance. Article 147 permitted the Albanian courts to require proof that the person had not been notified of the original proceedings. That was a procedural qualification, not an exercise of discretion depriving the person of a legal right.
4. The court approved the reasoning in Zeqaj v Government of Albania [2013] EWHC 261 (Admin) and Bardoshi & another v The Government of Albania [2014] EWHC 2756 (Admin). The fact that Mr Gjoka had been refused a retrial did not establish that the Albanian system lacked an effective right. The Albanian Constitutional Court was entitled to determine that he had known of the proceedings and deliberately waived attendance.
5. The analogous reasoning in Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin) and BP v Maramures, Romania [2015] EWHC 3417 (Admin) supported the conclusion that procedural steps do not remove a statutory entitlement to retrial.
6. On Articles 2 and 3 ECHR, the District Judge was entitled to find insufficient evidence that the blood feud remained active. The evidence supported the effectiveness of Albania’s assurance that the appellant would receive necessary protection in prison.

High Court (Administrative Court): The Divisional Court dismissed the appeal against the District Judge’s decision dated 26 May 2016 to send the case to the Secretary of State for the Home Department.