Saliman Barci v The Government of Albania
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr Justice Sweeney |
| Judgment Date | 28 February 2017 |
| Neutral Citation | [2017] EWHC 369 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO: 4356/2016 |
| Date | 28 February 2017 |
[2017] EWHC 369 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
In the matter of an appeal under section 103 of the Extradition Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Mr Justice Sweeney
Case No: CO: 4356/2016
Mr. Ben Cooper (instructed by Howells LLP) for the Appellant
Mr. Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 21 February 2017
This is an appeal under section 103 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Zani, at Westminster Magistrates' Court to send the appellant's case to the Secretary of State pursuant to section 87(3) of the 2003 Act, for her to decide whether to extradite him to Albania.
The appellant, Saliman Barci who is now 41 years old, has lived in this country under a false identity for 14 years. The Government of Albania seeks his extradition to serve a sentence of 25 years' imprisonment, for two offences of murder and possession of a firearm, committed on 18 July 1997.
The proceedings are governed by part 2 of the 2003 Act, the Extradition Act 2003 (Commencement and Savings) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. Albania is also designated for the purposes of sections 71(4), 73(5), 84(7) and 86(7) of the 2003 Act by para 3 of SI 3334 of 200A certificate certifying the request under section 70 of the 2003 Act was issued on behalf of the Secretary of State on 17 July 2015 and has been made in the approved way.
The appellant was arrested under section 74 of the 2003 Act on a provisional request, in the cells at Westminster Magistrates' Court on 17 June 2015. He was arrested under the name of Samir Bashsa, but did not dispute that he is the person named in the extradition request. He appeared at an initial hearing at Westminster Magistrates' Court on the same day. He raised no preliminary issues. As he was subject to domestic criminal proceedings, his case was adjourned under section 76A of the 2003 Act. By 3 August 2015 his domestic criminal proceedings (for possession of class 'A' drugs) had come to an end and he confirmed that he did not consent to extradition. The extradition hearing was opened on that date.
The substantive extradition hearing took place on 3 and 4 May 2016 before District Judge Zani. The Court heard evidence from the appellant, and expert evidence from Ms. Antonia Young and Dr. Zhilla. Further material was provided to the court on the appellant's behalf, after the hearing.
In a reserved judgment, handed down on 1 July 2016, District Judge Zani concluded there were no bars to extradition; and sent the appellant's case to the Secretary of State for her decision on whether to order extradition. On 15 August 2016 the Secretary of State ordered the appellant's extradition, and he remains remanded in custody.
The appellant's application for permission to appeal was lodged on 25 August 2016 and served on the CPS acting for the respondent on that day. The respondent's notice and submissions opposing the grant of permission, filed within the relevant time limits, were not put before Holman J when he considered the question of permission on 5 December 2016. This is unfortunate, as the judge noted that the respondent had not helped itself by failing to file or serve summary grounds of opposition.
As it was, Holman J granted permission to appeal limited to two grounds:
i) Whether the District Judge was correct to conclude that the Appellant's extradition was not barred by the passage of time under section 82 of the 2003 Act;
ii) Whether the District Judge was correct to conclude that the Appellant was entitled to a retrial under section 85 of the 2003 Act.
Permission to appeal was refused on two further grounds, in respect of which the application for permission is renewed before us:
i) That extradition is incompatible with the appellant's rights under Articles 2, 3, 6 and 8 of the ECHR under section 87 of the 2003 Act: (Articles 2, 3 and 8 due to a risk to him from a blood feud in Albania; Article 3 because of prison conditions in Albania, and Article 6 because of systemic judicial corruption in Albania);
ii) Extradition is unjust or oppressive by reason of the appellant's physical and mental condition under section 91 of the 2003 Act.
Holman J refused permission on those grounds, rightly in my judgment. As he put it succinctly: "…the District Judge dealt adequately and fairly [with the matters raised] in the light of the evidence. The appellant is alleged to have committed very serious offences (two murders) and provided he can receive a fair retrial, none of the claimed human rights arguments under Article 8 or based on rather non-specific ill health should stand in the way of it. Articles 2 and 3 are of course of the utmost gravity, but the District Judge dealt with them entirely appropriately."
The facts and the background to the request are set out in the Extradition Request, in particular, in the Prosecution Office's Report on the Appellant of 27 June 2015. The murders of which the Appellant was convicted occurred in Burrel in Albania on 18 July 1997. The victims were Perparim Ibrahimi and Artur Gjikola. Both men were shot dead late that night. They had left Ibrahimi's apartment at around 11pm that evening with the Appellant, who told them "tonight we'll gain 60 Million Leks" The next day, the two victims were found close to the entrance of a stadium. Police recovered three cartridges from the scene: a technical ballistic experts report of 29 July 1998 said that the cartridges were 7.62mm bullets, model 54, fired out of a model 1954 weapon, calibre 7.62 mm. The cause of death was confirmed by forensic evidence.
According to the appellant, his nephew was murdered by the Ibrahimi family in retaliation four months later; and he then felt compelled to flee from Albania, in fear of his life because he was blamed for the murders.
The investigation into the murders of Ibrahimi and Gjikola was re-opened on 11 March 2009 as a result of evidence received by the police that the appellant had admitted to the murders. He had sent a message, via two intermediaries, to the brother of one of the victims, seeking 'reconciliation' as he had killed the victims, and an Ibrahimi family member had then killed his nephew. An accusation was then filed against the appellant for the offences of murder and the illegal possession of weapons.
On 29 March 2009 the Judicial District Court in Mat issued an order for the appellant's arrest. On 20 May 2009 he was declared an escapee by that court. On 8 September 2009 two lawyers were appointed to represent the appellant under a special proxy signed by his sister. On 24 November 2009 he was convicted in his absence by the District Court in Mat of the two offences of murder and of illegal possession of weapons, and sentenced to 25 years' imprisonment. On 17 September 2010, the Court of Appeal of Tirana quashed the decision of 24 November 2009, and remitted the case to the District Court for a retrial. On 18 February 2013, the Supreme Court in Tirana revoked the decision of 17 September 2010, and remitted the case to the Appeal Court for reconsideration. On 6 December 2013, the Appeal Court rejected a complaint submitted by the appellant's lawyer.. On 9 January 2014 the appellant's lawyer submitted an appeal to the Supreme Court. On 19 May 2014, the Judicial District Court in Mat rejected an application by the appellant's lawyer (appointed under a proxy dated 13 February 2014) to appeal against the decision of 24 November 2009, as the appeal to Supreme Court was still extant. On 1 April 2015, the Supreme Court admitted the appellant's lawyer's complaint.
On 17 July 2015, the Albanian authorities requested the appellant's extradition. On 28 October 2015, the Penal College of the Supreme Court heard the appellant's case and overturned the decision of the Court of Appeal of Tirana's decision of 6 December 2013, as based on a mistaken application of the law. The appellant submitted a power of attorney in that hearing before the Supreme Court. The case was remitted for trial before the Court of Appeal of Tirana.
Three sets of further information from the respondent were before District Judge Zani. The first is dated 29 January 2016, and signed by the Deputy Minister of Justice of Albania. The second, is provided under cover of two letters from the Minister and General Prosecutor's Office. The third is dated 24 February 2016. It is not necessary for the purposes of this appeal to set their content out in any detail, or in the precise translation.
It states amongst other things, that the appellant was tried in absentia, and the Albanian state guarantees the exercise and respect of his right to retrial. Article 6 of the European Convention on Human Rights (the Convention) is a part of Albanian law. Albanian law recognises trial in absentia with the compulsory participation of defence counsel either appointed by the defendant or appointed ex-officio. Trial in absentia is not a breach of Article 6. The Convention enjoys privileged status in Albanian law; and is explicitly recognised by the Constitution, which prohibits disproportionate restrictions of human rights.
Parts of the Criminal Procedure Code of Albania are also set out, and explained. Article 147.2 which applies when a decision is rendered in absentia and provides that the defendant may claim reinstatement in the time limit to file a complaint, when he proves he has not been informed of the decision. Article 410, which confirms that a defence lawyer can only lodge an appeal if he has a power of attorney to do so; that ex officio lawyers or lawyers chosen by relatives...
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