Fatjon Kaptri V. The Lord Advocate Representing The Government Of The Republic Of Albania
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Wheatley,Lord Justice General |
| Judgment Date | 25 April 2014 |
| Neutral Citation | [2012] HCJAC 84 |
| Published date | 30 April 2013 |
| Docket Number | XC255/11 |
| Court | High Court of Justiciary |
| Date | 11 June 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Menzies Lord Wheatley | [2012] HCJAC 84 Appeal No: XC255/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by FATJON KAPRI Appellant; against THE LORD ADVOCATE, representing The Government of the Republic of Albania Respondent: _______ |
Appellant: Richards, Q.C., Pike; J P Mowbery, Glasgow
Respondent: W J Wolffe, Q.C., Hawkes; Crown Agent
1 June 2012
[1] The appellant is an Albanian national. In 2001 another Albanian national was killed in London. A charge of his murder was brought against the appellant who was, in the Court of Elbasan, Albania (a District Court), convicted of that murder in his absence, but after the hearing of evidence, on 23 December 2002. He was sentenced to twenty two years' imprisonment. He was represented in those proceedings by a court-appointed lawyer. That determination became final on 3 January 2003, no appeal having been taken within the prescribed time limit. It is not disputed that that court had jurisdiction to try him and to convict him in his absence (Colozza v Italy (1985) 7 EHRR 516; Sejdovic v Italy (2006) App. No. 56581/00 at para 82).
[2] The appellant was ultimately traced to Scotland where he was arrested, initially under a provisional arrest warrant under section 73(3) and (4) of the Extradition Act 2003 ("the Act") on 25 June 2010, and thereafter held under a full extradition request. The full extradition hearing took place at Edinburgh Sheriff Court before Sheriff K M Maciver on 16 December 2010 and following days. Various issues were raised before the sheriff, the majority of which are no longer live. Among the questions decided by him was whether, on being returned to Albania, the appellant would be entitled to a retrial or (on appeal) to a review amounting to a retrial (section 85(5) and (8) of the Act) and whether his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (section 87(1)). Both these questions the sheriff on 20 January 2011 answered in the affirmative. He accordingly, in terms of sections 87(3) and 141(1) of the Act, sent the case to the Scottish Ministers for their decision whether the appellant was to be extradited.
[3] The Scottish Ministers decided under section 93(2) that they were not prohibited from ordering the appellant's extradition. He thereafter appealed to this court under section 103(1) of the Act (erroneously marked as an appeal under section 26(1)). Various grounds of appeal were stated in the Note of Appeal, some of which were subsequently withdrawn. On 2 February 2012, after sundry procedure, this court held that certain evidence was admissible and other evidence inadmissible for the purposes of the appeal. That ruling, in effect, excluded ground of appeal 3(v). The only subsisting ground of appeal was accordingly ground 3(iv) which reads:
"The sheriff erred in concluding that the appellant would be entitled to a retrial in terms of section 85(5) of the Act.
Separatim. The sheriff erred in concluding that the rights specified in section 85(8) of the Act would be made available to the appellant."
[4] Section 85 of the Act is in the following terms:
"...
(5) ... [the judge] must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
...
(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."
[5] This issue was decided by the sheriff essentially upon the documentation provided as part of the extradition request. In terms of the decision of this court on 2 February 2012 expert evidence bearing on this aspect of the appeal was allowed to be admitted. The expert initially envisaged as a witness became unavailable but evidence along the same lines was adduced, by video link, from Ms Elira Kokona, whose credentials as an expert in Albanian law were not disputed. She was the only witness adduced.
[6] Section 104 of the Act provides:
"(1) On an appeal under section 103 the High Court may -
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if ... the conditions in subsection (4) are satisfied.
...
(4) The conditions are that -
(a) ... evidence is available that was not available at the extradition hearing;
(b) the ... evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge."
[7] For the purposes of this appeal Mr Wolffe for the respondent accepted that Ms Kokona's evidence was evidence which "is available that was not available at the extradition hearing" within the meaning of section 104(4)(a).
[8] The issue which arises under section 85(5) and (8) is a matter of Albanian law. That, in this court, is an issue of fact, upon which the court must proceed on the expert testimony which it accepts (The Queen (On the application of Mucelli) [2012] EWHC 95 Admin, per Cranston J at para 50). Much of the constitutional and legislative background is not in dispute. Translations into English of the relative sources were before the court.
[9] The Republic of Albania is governed by a Constitution which was promulgated in 1998. Article 4 of that Constitution provides:
"1. The law constitutes the basis and the boundaries of the activity of the state.
2. The Constitution is the highest law in the Republic of Albania.
3. The provisions of the Constitution are directly applicable, except when the Constitution provides otherwise."
Article 5 provides:
"The Republic of Albania applies international law that is binding upon it."
Article 15.1 provides:
"The fundamental human rights and freedoms are indivisible, inalienable, and inviolable and stand at the base of the entire juridical order."
Article 17.2 provides:
"[Limitations of the rights and freedoms provided for in the Constitution] may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights."
Article 30 provides:
"Everyone is deemed innocent so long as his guilt is not proven by final judicial decision."
Article 31 provides:
"In a criminal proceeding, everyone has the right:
(a) to be notified immediately and in detail of the charges against him, of his rights, and to have the possibility created to notify his family or relatives;
(b) to have sufficient time and facilities to prepare his defence;
(c) to have the assistance of a translator without charge, when he does not speak or understand the Albanian language;
(ç) to be defended by himself or with the assistance of a legal defender chosen by him; to communicate freely and privately with him, as well as to be provided free defence when he does not have sufficient means;
(d) to question witnesses who are present and to seek the appearance of witnesses, experts and other persons who can clarify the facts."
Article 33(1) provides:
"Everyone has the right to be heard before being sentenced." [Miss Kokona explained that that last word included "convicted".]
Article 116.1 provides:
"Normative acts that are effective in the entire territory of the Republic of Albania are:
(a) the Constitution;
(b) ratified international agreements;
(c) the laws;
...". [Miss Kokona confirmed that the European Convention on Human Rights was an international agreement ratified by the Republic of Albania.]
Article 117.3 provides:
"International agreements that are ratified by law are promulgated and published accord to the procedures contemplated for laws ...".
Article 122.1 provides:
"Any ratified international agreement constitutes part of the internal legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law..."
[10] Criminal procedure in Albania is subject to the Criminal Procedure Code of the Republic of Albania. There are three tiers of criminal courts: criminal courts of first instance [District Courts], Appellate Courts and the Supreme Court (Article 12). The first two tiers have territorial jurisdictions; the Supreme Court has jurisdiction throughout Albania. The Appellate Courts, like the District Courts, are courts of both fact and law. Appeal to, or review by, the Supreme Court is available only on an issue of law. The Supreme Court has a jurisdiction to review final determinations. Article 450 provides:
"The review may be requested:
(a) when the facts of the grounds of the sentence do not comply with those of another final sentence;
(b) when the sentence is relied upon a civil court decision which after has been revoked;
(c) when after the sentence new evidence have appeared or have been found out which solely or along with those ones evaluated prove that the sentenced is not guilty;
(ç) when it is proved that the conviction is rendered as a result of the falsification of the acts of the trial or of another fact provided by law as a criminal offence."
As discussed below, that article has been the subject of judicial interpretation.
[11] Albania also has a Constitutional Court, with the jurisdiction provided by Article 131 of the...
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