Gjergj Cupi v The Government of Albania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker,Lord Justice Treacy |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3288 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2016 |
| Docket Number | Case No: CO/3762/2016 |
[2016] EWHC 3288 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Mr Justice Jeremy Baker
Case No: CO/3762/2016
Mr Ben Watson (instructed by Hallinan Blackburn Gittings and Nott (Solicitors)) for the Appellant
Miss Hannah Hinton (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 13 December 2016
Judgment Approved by the court for handing down (subject to editorial corrections)
This is an appeal, under section 103(1) of the Extradition Act 2003, ("the 2003 Act"), against the decision of District Judge Tempia, dated 26 th May 2016, to send a case to the Secretary of State for the Home Department for a decision as to whether Gjergj Cupi, ("the appellant"), should be extradited to Albania.
The main ground of appeal, for which permission was granted by the single judge, is that, having determined that the appellant had not deliberately absented himself from his trial, the District Judge was wrong to conclude that, for the purposes of section 85(5) of the 2003 Act, she was sure that the appellant would be entitled to a re-trial upon his return to Albania. The second ground, for which permission was granted, is that, as the offence of murder took place in the context of a blood feud, the District Judge was wrong to conclude that extradition would not violate his rights under Articles 2 and 3 of the European Convention on Human Rights, ("ECHR").
The appeal is resisted by the Government of Albania, ("the respondent").
Factual background
On 23 rd February 1999 the appellant was tried and convicted in his absence by the First Instance Court of Mirdita of two offences of murder, two offences of attempted murder and one offence of possession of a firearm, and was subsequently sentenced to serve a period of 25 years' imprisonment.
The written decision of the court records, inter alia, that,
"….it was found that the defendant Gjergj Cupi is an inhabitant in the village Kacinar, of the commune Kacinar. As the result of the feud between the family Cupi and Ndreca, which dates back in 1992, Petrit Cupi was killed. At that time, the defendant Mirash Ndreca (the victim) was sentenced to 22 years' imprisonment and he suffered punishment in the respective places until the moment when the prisons were opened in March 1997. As the defendant (the victim), Mirash Ndreca, escaped from the place where he was suffering the punishment, the defendant Gjergj Cupi came up with the criminal idea to revenge for his brother, profiting even from the unfavourable situation the state went through from January to June 1997, when all the population was armed as the ammunition depots were opened.
The defendant got the gun to commit the crime and on 27.07.1997, he committed the premeditated murder of the victim Mirash Ndreca and of the other people, at the place called 'Karburanti i vjeter', at the town of Rreshen. Consequently, the other victim, Donika Kadeli, was murdered, and the citizens Preng Perkeqi and Frrok Perkeqi were wounded. The administered evidence and the interrogation of the witnesses Dode Pertena, Ndue Cupi, Vitore Perlesi, Pashk Shyti prove completely the fact that the defendant Gjergj Cupi has committed the criminal offence of the premeditated murder, of the attempted premeditated murder and of keeping of guns without a permit. The witnesses explained that the defendant Gjergj Cupi communicated with them directly or indirectly stating that 'I revenged for the blood of my brother'. So, it is obvious that the defendant Gjergj Cupi has premeditated the murder against the citizen Mirash Ndreca and Donika Kadeli, and the attempted premeditated murder against the citizens Preng Perkeqi and Frrok Perkeqi……."
The reason for the appellant's absence from the trial was that, subsequent to the court having issued a charge and wanted order for the appellant on 8 th September 1998, the appellant left Albania on 14 th September 1998 and travelled to Italy, where he stayed until November of that year. He then travelled to the UK, where he has remained ever since, having been granted asylum on the basis that his surname was "Kola", and that he was a refugee from Kosovo.
Although the court in Albania issued a warrant for the appellant's arrest on 19 th March 1999, his whereabouts at that time were unknown, and it was only after the Albanian authorities were notified by the UK authorities of his presence in this country, on 19 th December 2014, that they were enabled to make an extradition request, which they did, on 28 th January 2015. The request was certified by the Secretary of State for the Home Department on 6 th February 2015, and the appellant was arrested on 28 th April 2015.
In the meantime, according to the appellant, he first came to know that he was wanted in respect of these murders in 2004, as a result of an item on Albanian television concerning his brother Edmund Cupi, who was himself wanted in respect of other multiple murders committed in Albania prior to 1997. According to the appellant, his own name was mentioned in the same television item, as being wanted for the 1997 murders, which was confirmed by accessing the Interpol website. Although he contacted his brother Edmund and persuaded him to surrender to the Albanian authorities, the appellant decided not to do anything about his own situation and remained in the UK.
Subsequently, on 19 th November 2015, after the appellant's arrest by the UK authorities in respect of the extradition proceedings, his brother Edmund Cupi, who had by then been convicted of the pre-1997 murders, also claimed responsibility for the 1997 murders, and signed a statement to this effect.
In these circumstances, the appellant denies that he is responsible for the 1997 murders.
Ground 1
Statutory framework
The statutory provisions of relevance to the first ground of appeal are contained in Parts 2 and 5 of the 2003 Act. Section 85 deals with cases where, as here, a request has been made to extradite an individual who has been convicted of a criminal offence in the country seeking extradition.
"85 Case where person has been convicted
This section has no associated Explanatory Notes
(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 87.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 87.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 86.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
In addition, under section 87, the court considering the extradition request must have regard to the individual's ECHR rights.
"87 Human rights
(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
Moreover, under section 206, the onus of proving the matters set out in section 85 rests upon the state seeking the extradition, and must do so to the criminal standard.
"206 Burden and standard of proof
(1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.
(2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.
(3) Any enactment or rule of law applied under subsection (2) to proceedings under this Act must be applied as if—
(a) the person whose extradition is sought (or who has been extradited) were accused of an offence;
(b) the category 1 or category 2 territory concerned were the prosecution.
(4) Subsections (2) and (3) are subject to any express provision of this Act.
(5) In this section "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."
Review of authorities
These provisions have been considered by the High Court and the Court of Appeal, both in relation to their general interpretation, and in particular in regard to the situation in Albania.
In so far as the proper approach to section 85(5) is concerned in Da An Chen v Government of Romania [2006] EWHC 1752 (Admin), Mitting J with whom Maurice Kay LJ agreed,...
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