Gezim Troka v Government of Albania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 16 December 2021 |
| Neutral Citation | [2021] EWHC 3424 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2022/2019 |
[2021] EWHC 3424 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/2022/2019
Martin Henley (instructed by AM International Solicitors) for the Appellant
Daniel Sternberg (instructed by CPS) for the Respondent
Hearing date: 16/12/21
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.
Introduction
This is an application to reopen an appeal in an extradition case. The Appellant is aged 47 and is wanted for extradition to Albania. That is in conjunction with index offending which involved the “exploitation for prostitution” of a young woman with what the Albanian courts recognised as “aggravating” circumstances. That offending took place over a period between 1994 and 2000. It took place in Greece and Italy. At one point the Appellant was convicted and served a prison sentence in Italy in mid-1995 in relation to some of his conduct, but the index offending described in this case continued in the ensuing years. The matters culminated in Albania in a conviction and a 6 year custodial sentence.
The date of the first instance decision in Albania involving the conviction and sentence was 7 October 2008. The date of an appeal court in Albania dismissing an appeal was 30 September 2009. Those dates became significant in this case because of a 10-year limitation period about whose start-date there was, at one time, a dispute. It came to be accepted that the start-date was the appeal dismissal date (30 September 2009).
The index offending is the subject of an Extradition Request issued on 20 April 2018 and certified by the Secretary of State on 30 April 2018.
Mode of hearing
The mode of hearing today was by a fully remote hearing using Microsoft Teams. This case was to have been an in-person hearing at the Royal Courts of Justice. I acceded to a request which explained cogent COVID-related reasons concerning one of the individuals concerned with this case. The request justified taking the step of eliminating the risk from travelling to, or being present in, a court room, in the present circumstances relating to the pandemic and the guidance about conduct in light of it. Both Counsel were satisfied, as am I, that the remote mode of hearing involved no prejudice to the interests of their clients. The open justice principle was secured in the following ways. The case and its start time were published on the Court's cause list. There was an error in the cause list, published yesterday afternoon, which described this case as being an in-person hearing. It was possible to correct that error online this morning and the case appeared in the cause list, online, as a remote hearing. There was reference in the cause list to an email address, albeit that it refers to “members of the media” wishing to attend. It did not prove possible in this case to have the usual email address of my clerk published alongside my hearing on the cause list. We took some additional steps in the circumstances. We fixed a poster on the door of the court room in case anyone attended for this hearing. The poster alerted them to the fact that the hearing was happening by Teams and gave my clerk's direct dial phone number so that they could contact her to let her know that they had wished to observe. Had that happened, I would have dealt with it and made sure that any individual wishing to observe this hearing was able to do so by accessing the Teams link, even if that meant a delay. We also took steps to ensure that the regular law reporter attendees were informed this morning that this was a remote hearing and not in-person, in case any of them wished to attend. The hearing has been recorded and this judgment will be released in the public domain. I am satisfied that insofar as there has been any impairment of open justice (and I do not believe there has been any impairment), it is justified by the circumstances, and that appropriate counterbalances have been actioned.
Limitation period and start-date(s)
The limitation period that is at the heart of the legal arguments advanced in the application to reopen is “Article 68” of the Albanian statute of limitations. It provides: “the sentence shall not be executed if from the day it became final have elapsed … 10 years for sentences containing between 5 to 15 years imprisonment”. The important question that arises is at what point the sentence comes to be “executed”. As I have explained, it came to be common ground that the date on which the sentence in this case “became final” was 30 September 2009 and not 7 October 2008.
The procedural history
This case has a lengthy and complicated procedural history which I need do no more than summarise. The Appellant was arrested on 2 August 2018 and has been on remand in relation to these extradition matters ever since that date. That means the period of remand is, up to the present time, some 3 years 4 months. The Appellant had an oral hearing on 18 March 2019 before DJ Tempia (“the Judge”), who gave a judgment on 22 March 2019. That judgment addressed a limitation period point being raised by the Appellant, by reference to the passage of time, as a bar to extradition. The argument was that it was unjust to extradite having regard to the passage of time. That was because the service of the sentence was now time-barred. The reason why it was time-barred, it was argued, was because the start-date was the 7 October 2008 date, and so the 10-year limitation period had expired on 7 October 2018. The Respondent contested those arguments. One point that was made by it was that the wrong start-date was being used. The Judge agreed, finding that the correct start-date was 30 September 2019. Another point being made by the Respondent was that, on the basis of further information which had been supplied on 20 February 2019, the sentence had begun to be “executed” upon the Appellant's arrest on 2 August 2018. The consequence of that second argument was that it did not matter who was right about the start-date, because – on either start-date – the “execution” of sentence had begun before any expiry of the limitation period. The Judge set this all out very clearly, summarising the further information about the “execution” of the sentence starting from the day of detention in the UK, and making a finding as follows: “I also accept … that [the Appellant] is already serving that sentence, as per the further information which states that the sentence starts from the day he is detained in the UK in respect of his extradition”. The Judge went on to say that that information also explained that the entire period of incarceration would be calculated towards the serving of sentence in Albania, and that the Appellant's team had not adduced any evidence to support their assertion that he was no longer liable to serve the sentence.
Against that backcloth, the “limitation period” point was originally raised in grounds of appeal to this Court which accompanied the Appellant's Notice on 22 May 2019. As at that stage, if the earlier start-date (7.10.08) argument were being maintained then the Appellant would have been saying that he could not now face any sentence. If the later start-date (30.9.09) were being accepted then the points being made would have related to the date on the horizon, of 30 September 2019, and the limited period of time until its arrival. Either way, it would have been open to the Appellant to contest the further information on which the Judge had relied, and the finding made in reliance on it, and to rely on the limited period left to be served from the 6-year sentence. In any event, as Mr Henley rightly recognises, the application for permission to appeal was then refused on the papers on 10 September 2019 when the 30 September 2019 date was looming large; and it then came before Holman J at an oral hearing on 15 October 2019, when that date had passed. The limitation period point was never raised. It had been dropped in Perfected Grounds of Appeal which had been put forward on 7 June 2019. Mr Henley's characterisation is that there was an “ambiguity” in the further information (20.2.19) and that he was in “error” in not advancing the limitation point when he took the case on, immediately prior to the Perfected Grounds of Appeal. It is honourable of him to adopt that characterisation, which advances the interests of his client on this application. But I cannot accept that characterisation. The Judge had made a clear finding, based on clear further information, which engaged with the question of “execution”. It did so under a topic which related to the limitation period. What the further information (20.2.19) said was this: “We would like to call attention of the British authorities [to] the fact that the execution of the sentence starts from the day of [the Appellant's] detention in the United Kingdom in view of his extradition”. That was within a topic addressing the claim on “reaching the statute of limitations for the execution of [the Appellant's] sentence”.
What happened was that Holman J granted permission to appeal to this Court on the only ground then being raised. It was one which had not been raised by the previous lawyers before the Judge. That was a “dual criminality” point, which succeeded in part before Laing J, whose judgment on 16 January 2020 was followed through to...
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