R Vullnet Mucelli (Claimantand) The Secretary of State for the Home Department (Defendant) Fair Trials International (Intervener)

Hearing dates: 18–19 January 2011

INTRODUCTION

These three cases all concern the extradition of persons to Albania where they have been convicted by the Albanian courts in their absence. Vullnet Mucelli's case is a judicial review claim against the decision of the Secretary of State for the Home Department ("the Secretary of State") to extradite him. The cases of Lulzim Hoxhaj and Marush Gjoka are statutory appeals against the decisions of the District Judge to send their cases to the Secretary of State. Those different routes by which the cases have come to this court have legal ramifications, as is explained below. However, the issue in broad terms in all these cases is whether, if these applicants are extradited, they will be entitled to reopen their convictions and obtain a retrial or review on appeal. This is not the first time the issue has been before the courts in Albanian extradition cases.

BACKGROUND

Mucelli's judicial review

The background to this case is contained in District Judge Evan's decision of 4 June 2007 and in a judgment of this court of Richards LJ (with whom Aikens J agreed) at [2007] EWHC 2632; [2008] WLR 2437. In summary, on 13 June 1997 Adriatik Zotaj was killed in Tirana, the capital of Albania. He had lived with Mr Mucelli's aunt. A few days prior to the killing, Zotaj and Mr Mucelli had argued over some gold coins. On the day of the killing, Mr Mucelli arrived at the victim's block of flats with a large sports bag. He spoke to a number of people on his arrival. He then went inside and some time later shots were heard. One of those present saw Mr Mucelli walking down the stairs placing a sub-machine gun in his bag. Present at the scene was Mr Mucelli's wife. Criminal proceedings were commenced the same day. Eventually Mr Mucelli was tried in his absence. He was represented by a lawyer at the trial. He was found guilty of murder and sentenced to 25 years' imprisonment. He was also found guilty of the illegal possession of military weapons and sentenced to one year's imprisonment. His wife was also tried in her absence but acquitted. In October 1998 the Albanian sentence was declared final.

Meanwhile Mr Mucelli had arrived in the United Kingdom with his wife under a false identity and on Greek papers. Some eight years later he was arrested in London pursuant to a provisional warrant for the purpose of extradition proceedings. On 28 February 2007 the Albanian Ministry of Justice issued a formal request for his extradition. In the course of that request it said this:

"[T]he Ministry of Justice guarantees in advance on behalf of the Albanian state and in conformity with the article 504(2) of the Albanian Code of Criminal Procedure: 1. The enforcement of the right for retrial of the subject upon request, in accordance with the Albanian Constitution and pursuant to the articles 147, 148, 449, 450, 453 of the Code of Criminal Procedure of the Republic of Albania…": see [2007] EWHC 2632; [2008] 1 WLR 2437, [25].

There was a further letter, dated 10 May 2007, confirming that Mr Mucelli could exercise "the right of retrial" within ten days from the moment he was handed over to the Albanian authorities. The request was certified by the Secretary of State the following month. In June 2007 District Judge Evans heard evidence from Mr Mucelli and concluded, inter alia,

"I do not believe or accept the defendant's evidence. Within it there are inconsistencies …The reality is that he has been living a lie for the whole of his time in this country. His Certificate of Naturalisation shows a variant on the false given name, Viez instead of Veiz. His place and country of birth is shown as Decon, Federal Republic of Yugoslavia. He has a criminal record in this country which shows four aliases in addition to the assumed name of Veiz Halili and one false date of birth in addition to the one provided to the immigration authorities."

The judge sent the request to the Secretary of State, who ordered Mr Mucelli's return to Albania in July 2007.

In November 2007 this court (Richards LJ, Aikens J) dismissed Mr Mucelli's statutory appeal against the District Judge's decision on the ground that it was out of time: [2007] EWHC 2632; [2008] 1 WLR 2437. I return to that judgment below. In mid January 2008 Collins J and Ouseley J refused Mr Mucelli's application for habeas corpus. In early 2009 the House of Lords dismissed an appeal against this court's decision in the statutory appeal: [2009] UKHL 2; [2009] 1 WLR 276. On 25 June 2009 it refused permission for leave to appeal against the decision in the application for habeas corpus.

Mr Mucelli's representatives then wrote to the Secretary of State informing him that they had received a witness statement from Mrs Bogdani, dated 12 June 2009. As is explained later in this judgment Mr Bogdani had been convicted in Albania in absentia, come to this country and been extradited back to Albania. In it Mrs Bogdani complained that her husband had not received a retrial on his return. The Secretary of State made enquiries on the basis that her extra-statutory jurisdiction under the European Convention on Human Rights ("ECHR") may be engaged. There were responses from the Albanian authorities. In light of these, the Secretary of State upheld the existing order for the Mr Mucelli's extradition on the basis that his return would not be incompatible with his ECHR rights. Mr Mucelli issued his claim for judicial review against that decision in March 2010. Blake J refused permission but Sullivan LJ granted it on a renewed application, adjourning the matter so the Secretary of State could obtain evidence in response to Mr Mucelli's evidence.

In early February 2011 Arben Brace, director of the department of jurisdictional foreign relations in the Albanian Ministry of Justice wrote to the Secretary of State ("the Brace letter"). This followed the decision in R (on the application of Bulla) v Secretary of State for the Home Department[2010] EWHC 3506, considered below. The letter repeated the assurance given in Mr Mucelli's case of a right of retrial on return. Under the side-heading, "The practical operation of the procedures", the letter stated that if Mr Mucelli wished to exercise his right to a retrial he must apply on return to the Supreme Court which,

"will confirm that Mr Mucelli is entitled to a retrial by virtue of the guarantee given by the Albanian Ministry of Justice. The Supreme Court will therefore repeal the decisions of the first instance court and the appeal court, and send the case back to the first instance court for a re-trial".

Following the Brace letter the matter was delayed during 2011 as the parties obtained further evidence of the legal position in Albania. I return to this evidence below.

Hoxhaj's appeal

Mr. Hoxhaj was accused of offences arising from an incident on 22 March 1997, when he was a private guard at an oil refinery in Albania. There was an argument, and the victim was killed with a submachine automatic weapon. The proceedings in Albania were somewhat protracted. A decision of the First Instance Court of Fier on 28 August 1998 was overturned by the Appeal Court of Vlora and a retrial ordered. On 28 January 1999, the District Court of Fier convicted Mr Hoxhaj of weapons offences. On 6 July 1999, the Appeal Court of Vlora partly upheld that decision. Subsequently, the Albanian Supreme Court overturned both the decision of the District Court and of the Appeal Court. The case was remitted to the District Court of Fier. On 5 July 2003, it found Mr Hoxhaj guilty of murder, attempted murder, and the weapons offences. An aggregate sentence of 23 years' imprisonment was imposed. The Appeal Court of Vlora upheld that decision in September that year. On 20 July 2004, the Supreme Court upheld the decision of the Appeal Court. Mr Hoxhaj was represented by a lawyer appointed ex officio. In 1999 Mr Hoxhaj came to the United Kingdom under a false identity and claimed asylum as a Kosovan.

There was a letter from the Albanian authorities to the United Kingdom authorities dated 27 January 2011 transmitting "information and guarantees" about Mr Hoxhaj. On 17 February 2011, Mr Hoxhaj was arrested pursuant to a provisional arrest warrant. At an initial hearing the court ordered that Albania should submit its full extradition request within the week. That was done. There was an Albanian document entitled "supplemental guarantees granted by the Albanian State" dated 22 February 2011. It read that:

"pursuant to article 3 of the Second Additional Protocol of "European Convention on Extradition" and article 504/2 of...