Fatjon Kapri V. Her Majesty's Advocate (for The Republic Of Albania)
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Dorrian,Lord Bracadale |
| Neutral Citation | [2014] HCJAC 33 |
| Court | High Court of Justiciary |
| Date | 25 April 2014 |
| Docket Number | XC255/11 |
| Published date | 25 April 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lady Dorrian Lord Bracadale | [2014] HCJAC 33 XC255/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL UNDER THE EXTRADITION ACT 2003 by FATJON KAPRI Appellant; against HER MAJESTY'S ADVOCATE (for the Republic of Albania) Respondent: _____________ |
Appellant: J Scott, QC (sol adv), C Dempsey, solicitor advocate; Capital Defence Lawyers
Respondent: Dean of Faculty (Wolffe QC), Hawkes; the Crown Agent
25 April 2014
Procedural History
[1] This is an application by the respondent for the extradition of the appellant to his native Albania, which is a category 2 territory under the Extradition Act 2003. The case has a prolonged history and has already been the subject of two decisions of this court ([2012] HCJAC 17 and [2012] HCJAC 84) and one from the United Kingdom Supreme Court (2013 SCCR 430). Details of its history can be found in the relative Opinions. In summary, on 23 December 2002, the appellant was convicted in his absence at the Judicial District Court of Elbasan, Albania, of the murder of another Albanian in London on 7 April 2001. At that time, the appellant's whereabouts were unknown. In May 2010 he was traced to Glasgow, where he was living under a false Macedonian identity.
[2] The appellant was arrested on 24 June 2010. An extradition hearing proceeded over 3 days at Edinburgh Sheriff Court in December 2010. These proceedings had, first, involved a preliminary issue about whether the extradition documents were in proper form. Secondly, there was a contention that, notwithstanding the appellant being a fugitive from justice from the time of the alleged murder until his arrest, the delay since the conviction meant that his extradition would be unjust and oppressive. Thirdly, the appellant maintained that he would not be afforded a retrial in the event of his extradition, as required by section 85(5) of the 2003 Act. Alternatively, any retrial would be unfair because the appellant would not be able to choose his own lawyer or be permitted to examine witnesses, as required by section 85(8).
[3] The sheriff rejected all of these arguments. He followed the line of authority which states that Council of Europe countries (ie including Albania) are presumed to be compliant with the European Convention on Human Rights and capable of protecting accused persons from unfair trial (Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [6] citing Symeou v Greece [2009] 1 WLR 2384 and Gomes v Trinidad and Tobago [2009] 1 WLR 1038, Lord Brown at para 35). Accordingly, on 20 January 2011, having reached the view that there was no basis for the contention that Albania would not afford the appellant a Convention compliant trial upon his return, the sheriff determined that there were no bars to his extradition. He remitted the case to the Scottish Ministers for consideration under section 87(3) of the 2003 Act.
[4] On 15 March 2011, the Scottish Ministers ordered the appellant's extradition. The appellant appealed to this court. His Note of Appeal, which was lodged on 18 March 2011, contained seven grounds (3(i)-(vii)). Grounds 3(i), (ii) and (iii) related directly to what had been argued before the sheriff. Ground 3(iv) was that the sheriff had erred in concluding that the appellant would be entitled to a retrial and that the Convention guarantees would be afforded at any such retrial. Ground 3(v) was simply that the sheriff had erred in determining that the appellant's extradition was Convention, notably Articles 5 and 6, compliant. Ground 3(vi) contained a contention that there was a real risk of a breach of Article 3 (inhuman or degrading treatment) because of the "turbulent and corrupt political system in Albania". Ground 3(vii) was that the appellant's extradition amounted to an "abuse of process".
[5] It is worth pausing at this early stage to notice that, in terms of section 113 of the 2003 Act and as prescribed by the Act of Adjournal (Criminal Procedure Rules) 1996 (rule 34.4.(6)), the High Court requires to begin to hear an extradition appeal of this type within 76 days of the lodging of the Note of Appeal. That would have been by the end of May 2011, almost three years ago. However, the appeal was allowed to meander gently through a series of procedural hearings, at which there were several general discussions about what was to happen in the appeal, without any substantive decisions actually being made. Eventually, on 14 July 2011, the appellant intimated that he was not going to argue grounds 3(i), (ii) or (iii). On 13 September 2011, the appellant said that he was not going to argue ground 3(vi) either. This left grounds 3(iv),(v) and (vii). At the September diet, the court noted that:
"The article 6 ground [presumably 3(v)] was to be argued and fleshed out on the basis that the Albanian authorities and the legal system was fundamentally corrupt and that both prosecutors and judges were known to have taken bribes. This was something which was not argued before the sheriff."
This was the first mention that there might be an argument based upon a contention that the Albanian legal system was corrupt. It came well over a year after the arrest, months after the lodging of the Note of Appeal and long after the appeal ought to have been determined.
[6] On 12 October 2011, although it is not minuted in quite this way, the court allowed the Note of Appeal to be amended in terms of a Minute of Amendment. This extraordinary document deleted grounds 3(v) and (vii). This would have left only the retrial point, were it not for the Minute's substitution of a new ground (v) which, whilst retaining the basic point about the non-compliance of the appellant's extradition, formally alleged for the first time that the Albanian judicial system was "systemically corrupt". Reference was made in the new ground to selected passages from a number of International Governmental and Non-Governmental Organisation (NGO) reports. Although not all of these ultimately featured in the appeal, they included papers from the European Union Commission on Albania's Application for Membership (2010); the Institute for Development Research and Alternatives (IDRA)'s Corruption in Albania, Perception and Experience, Survey 2009, Summary of findings; the Bertelsmann Transformation Index 2010: Albania Country Report; and Transparency International's reports on measures to combat corruption in Albania. These documents refer to the existence of corruption generally and to elements affecting the judiciary. The ground of appeal alleges that corruption within the judiciary is a problem and that it would constitute a "flagrant denial of justice" were the appellant to be extradited. The ground ends by a "reference" being made to reports from Dr Merila Bogdani and Ms Miranda Vickers, which had been lodged. A further report by an Albania lawyer, namely Periand Teta, on the prospect of re-trial was also produced.
[7] It was readily accepted, as it was bound to be, that the ground of appeal and the reports, in so far as they alleged judicial corruption, had not featured at first instance. Nevertheless, on 12 October 2011, the court fixed a one day hearing to determine "the preliminary issue of the admissibility of new evidence which arises from the amended Note of Appeal". It was this issue that featured in the Opinion of 2 February 2012, which described the Bogdani and Vickers reports as follows:
"[28] ... Each presents a general picture of aspects of Albanian political and legal structures. Corruption and organized crime are said to be endemic. The judicial system is said to be weak with instances of judges becoming targets for defamation and assassination being mentioned. There is said to be an absence of the rule of law, the absence of an effective police force and a functioning judiciary system. However at other parts of the same reports descriptions and assessments of the functioning of the judiciary as undertaken by International Bodies are referred to."
There was mention of it being normal in Albania for criminals to pay judges in order to escape conviction. However, the Opinion continued:
"[30] None of these examples impact on the circumstances in which the present appellant would find himself if returned to face trial in Albania. ...[T]he material contained in both of the reports in question is of a wholly general nature and contains nothing to suggest that any of the concerns identified would be of application to the appellant's case."
The court concluded that the content of the reports was irrelevant to the ground of appeal and "ought not to be admitted for this reason".
[8] Without deciding the matter, the court commented that the reports were prepared by persons who were based in the United Kingdom and were neither legally qualified nor had any experience of working in the Albanian legal system. The reports drew on second hand material and the court was "not entirely" satisfied that this evidence would be competent.
[9] The court's decision effectively cut away the support for the new ground (v). The appeal proceeded on ground (iv), on the basis of the content of the Teta report (or rather a substituted report by Ms Elira Kokona, an expert in Albanian law), which was not objected to, and the evidence which had already been led before the sheriff. On 2 May 2012, a 3 day hearing commenced. In its Opinion of 1 June 2012, the court stated that it was satisfied that the appellant, if extradited, would have an effective right to appeal against his conviction, which would be a review amounting to a retrial in terms of section 85(8) of the 2003 Act. The appellant's appeal was dismissed. Leave to appeal to the United Kingdom Supreme Court was granted.
[10] The ground of appeal, which had been based upon criticisms of the court's finding that the appellant would obtain a review amounting to a retrial, was not pursued as a discrete...
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