Barci v The Government of Albania

In an extradition appeal concerning a conviction in absentia, the question under section 85 of the Extradition Act 2003 is whether the requested person has the specified statutory rights to a retrial. Those rights are the rights set out in section 85(8); wider complaints about the fairness or integrity of the foreign justice system ordinarily fall for consideration under section 87 and the Convention-rights test. Passage of time alone does not establish oppression or injustice, particularly where the offences are exceptionally serious and no specific disadvantage at retrial is shown. General evidence of judicial corruption, blood feud or prison conditions will not suffice without a real and evidenced risk to the individual.

This was an appeal under section 103 of the Extradition Act 2003 against a decision of District Judge Zani at Westminster Magistrates’ Court. The judge had sent the appellant’s case to the Secretary of State under section 87(3), after rejecting challenges based on passage of time, retrial rights, Convention rights and the appellant’s health.

Albania sought extradition so that the appellant could serve a 25-year sentence imposed in absentia for two murders and possession of a firearm. Permission was granted on passage of time and retrial, while renewed permission was sought on Convention and health grounds. The central issues were whether the appellant had an effective right to a retrial, whether fresh evidence concerning judicial corruption should be admitted, and whether extradition was barred or oppressive.

1. The appeal was dismissed. The renewed applications for permission to appeal were refused.
2. Section 85 of the Extradition Act 2003 establishes a sequence. Where a person was convicted in absence and did not deliberately absent himself, the judge must decide whether he would be entitled to a retrial. If that question is answered affirmatively, the judge proceeds under section 86. Section 85(8) prevents an affirmative decision unless the proposed proceedings include the rights specified there: representation and legal assistance, and the ability to examine witnesses and secure witnesses on the person’s behalf.
3. The statutory question under section 85(5) is distinct from the Convention-rights question under section 87. The fair-trial rights relevant to section 85 are those specified in section 85(8). A challenge based on judicial corruption could not be imported into section 85 in order to avoid the more stringent section 87 test under Article 6.
4. There was no adequate basis to revisit the conclusion in Bardoshi & Sadushi v Albania [2014] EWHC (Admin), or the related authorities, that a person convicted in absentia in Albania has a real and effective right to a retrial. The material concerning one Albanian expert and the trial judges did not establish corruption affecting the proposed retrial. The additional report also failed the admissibility requirements in section 104(4): it could have been obtained with reasonable diligence and would not have led to a different result.
5. Passage of time alone does not make extradition oppressive or create injustice. The seriousness of the offences increases the public interest in extradition and raises the threshold for establishing oppression. No particular disadvantage at retrial was shown.
6. The District Judge was entitled to reject the Article 2 and Article 3 challenges. The evidence concerning blood feud and prison conditions was general, while the Albanian authorities gave assurances of protection and Convention-compliant treatment. It fell well short of establishing a real risk of torture or inhuman or degrading treatment.

• High Court (Administrative Court) — The Divisional Court dismissed the appeal under section 103 of the Extradition Act 2003 and refused the renewed applications for permission to appeal.
• Westminster Magistrates’ Court — District Judge Zani sent the appellant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State — An order for extradition was made on 15 August 2016.