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Does Albanian law guarantee a retrial to someone convicted in his absence, but not properly notified, in accordance with ECHR, art 6? That is the narrow question in issue in Kapri v The Lord Advocate, but the case has wider potential ramifications for many countries with whom the UK maintain extradition relations.
Criminal proceedings in absence in civil law systems are commonplace, often because of the operation of limitation periods. Historically, the UK has been content to extradite persons following convictions in absentia, but if the defendant cannot be said to have deliberately absented himself from the foreign trial (as per Sejdovic v Italy (App No. 56581/00) 1 March 2006) then the UK will demand a guarantee of a full retrial following extradition (see the Extradition Act 2003, ss 20 & 85). Within the EU, this issue has been addressed at Framework Decision level (see 2009/299/JHA).
The concept of contumacious convictions being embedded within many civil law jurisdictions, it is often difficult, however, to identify the foreign law that guarantees such a retrial. And when it is possible to identify the legal provision, there are almost always difficult questions to answer. For example,
- When is a defendant notified for the purposes of commencing the (often very short) time limits for initiating an application for a retrial? On arrest in the UK pursuant to an extradition request or on surrender? The position was previously governed by the Second Additional Protocol of the European Convention on Extradition, but the EAW Framework Decision contains no corresponding provision.
- Does the court in the requesting State have a discretion as to whether to grant the retrial? UK law demands that the retrial be available as of unfettered right. If there is a discretion, is it a discretion in the way understood in the UK, or the mere exercise of judgment on a matter of fact (ie, as decision as to whether the defendant did or did not have notice of the trial)?
- What form will the re-trial take? Will it guarantee the rehearing of all of the evidence, or a mere reading out of testimony previously given? Will it comply with ECHR, art 6?
All of these issues arise with regularity in extradition proceedings. Italy and Albania have proved particularly problematic over recent years. Whilst the issue is essentially one of fact, to be determined by expert evidence in every case, the UK courts have begun to treat general country-specific issues as settled by prior case law.
So, for example, after a series of cases, the Italian system is now considered to fall on the correct side of the line between on the one hand an exercise of what one might term pure discretion when considering an application for a retrial and the application of the law to the facts in accordance with a criminal code on the other: Daniele v The Governor of HM Prison Wandsworth [2006] EWHC 3587 (Admin); Gradica v Public Prosecutor’s Office Attached to the Court of Turin [2009] EWHC Admin 2846, Ahmetaj v Prosecutor General Attached to Court of Appeal Genoa [2010] EWHC 3924 (Admin) Rexha v Officer of the Prosecutor, Court of Rome [2012] EWHC 3397); Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin).
Albania’s has been a rockier road. In Government of Albania v Bleta [2005] 1 WLR 3576, the High Court held that the right to a retrial in Albanian law was conditional rather than guaranteed. The same reservations were expressed by the High Court in Mucelli (No. 1) v Government of Albania [2008] 1 WLR 2437. But in Bogdani v Government of Albania [2008] EWHC 2065 (Admin), the Albanian system was given a clean bill of health. Following his extradition, however, Bogdani was initially refused a retrial and, in R (Bulla) v Secretary of State for the Home Department [2010] EWHC 3506 (Admin), the position reverted to the approach of Bleta and Mucelli. Bogdani was eventually able to persuade the Albanian Supreme Court to grant him a retrial, not because Albanian law required it, but because the Albanian government had promised the UK that it would happen (and that guarantee needed to be given effect to). So, the position reverted once again in favour of extradition to Albania in Mucelli (No.2), Hoxhaj & Gjoka v Government of Albania [2012] EWHC 95 (Admin).
It was against that background that the High Court of Justiciary in Scotland came to determine Mr. Kapri’s extradition to Albania. Perhaps surprisingly, the Court determined that Albanian law was adequate to guarantee a retrial. The decision that Albanian law may be safely trusted, of itself, to guarantee Mr. Kapri a retrial seems difficult to justify in light of the English Court’s consideration of the issue (of which, only Mucelli (No. 1) was referred to by the Scottish Court).
What seems likely is that the Lord Advocate (on behalf of the Albanian government) will be forced to fall back onto the “Bogdani” enforcement-of-diplomatic-guarantees route. That, in turn, will open up constitutional issues of significant interest. How can a State lawfully guarantee a retrial where its own law does not do so? How can an extradited person be in a better position than a domestic defendant subject to the same laws? Unfortunately, these are constitutional issues primarily for the Albanian state to resolve. What remains for the Supreme Court is what to make of a diplomatic guarantee that has no sufficiently firm foundation in the domestic law of the State in question. The approach of the Strasbourg Court to such assurances in the extradition context has historically been one of distain. The Strasbourg Court has maintained a consistent line of authority to the effect that diplomatic assurances are not, of themselves sufficient, and do not absolve the extraditing court of the obligation to examine whether provide sufficient guarantee in practice. Whether the Supreme Court will maintain a similar line remains to be seen.
