GEZIM TROKA v GOVERNMENT OF ALBANIA

An appeal will be reopened only where the demanding threshold in rule 50.27 of the Criminal Procedure Rules is satisfied. Finality is particularly important in extradition proceedings, and reopening is not a means of taking a second bite at an issue previously determined, even where fresh expert evidence is produced.

Where extradition depends on the operation of a foreign limitation period, the English court should not adjudicate disputed questions of the requesting state’s law. Such questions are for the requesting state’s courts unless the evidence is exceptionally clear, unequivocal and, in the relevant circumstances, establishes the necessary conclusion. That approach applies to Part 2 extradition cases as well as European arrest warrant cases.

The appellant sought to reopen an extradition appeal concerning a six-year Albanian sentence for serious offending. The original judge had rejected a limitation argument, finding that execution of the sentence began when the appellant was arrested and detained in the United Kingdom. The appeal proceeded on other grounds and was partly successful.

The appellant later relied on a fresh expert report asserting that the sentence had become time-barred under Albanian law, notwithstanding arrest, detention and commencement of execution. He applied to reopen the appeal under rule 50.27 of the Criminal Procedure Rules and alternatively sought an extension of time under section 108 of the Extradition Act 2003. The central issues were whether the statutory reopening criteria were met and whether the English court should determine the disputed operation of Albanian limitation law.

1. Application to reopen dismissed. The court held that rule 50.27 imposed high substantive thresholds. Reopening had to be necessary to avoid real injustice and appropriate because the circumstances were exceptional. The absence of an alternative effective remedy was accepted, but that factor could not overcome failure to satisfy the other requirements.
2. The application was, in substance, a second attempt to litigate a limitation issue already considered by the original judge. The judge had addressed both the limitation start-date and whether the further information established that execution began on the appellant’s arrest. Fresh evidence did not remove the importance of finality in extradition litigation: USA v Bowen [2015] EWHC 1783 (Admin), at paragraphs 4 and 9.
3. The court applied the principle in Battistini v Italy [2009] EWHC 3536 (Admin), as applied in Bendik v Slovakia [2010] EWHC 1821 (Admin) and Mohammed v France [2013] EWHC 1768 (Admin). The English court should not become embroiled in disputed questions about the operation of a requesting state’s limitation period. Such matters were for the requesting state’s courts, save in the rarest and clearest cases, requiring unequivocal evidence and, in the relevant context, clear evidence of bad faith.
4. That reticence was not confined to Part 1 European arrest warrant cases. The principle derived in Battistini v Italy from Gomes v Trinidad and Tobago [2009] UKHL 21 concerned the extradition process and international co-operation more generally. It therefore applied equally, or with at least equal force, to this Part 2 case involving Albania.
5. The fresh expert evidence was not unequivocal. It generated a dispute with the requesting state’s maintained position and appeared to produce the implausible consequence that sentences exceeding ten years could not be served in full. The rule 50.27 criteria were therefore not met. The alternative application for an extension of time under section 108 of the Extradition Act 2003 was also dismissed.

1. High Court (Administrative Court): Permission to appeal was granted by Holman J on a dual-criminality ground. Laing J later allowed the appeal in part on that ground, leading to a subsequent part-discharge. An application to reopen on specialty issues was refused by Laing J.
2. High Court (Administrative Court), present decision: The application to reopen the appeal was dismissed. The alternative application for an extension of time under section 108 of the Extradition Act 2003 was also dismissed.