Bogdani v Albanian Government, Court of Appeal - Administrative Court, July 25, 2008, [2008] EWHC 2065 (Admin)

Resolution Date:July 25, 2008
Issuing Organization:Administrative Court
Actores:Bogdani v Albanian Government
 
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SMITH BERNAL WORDWAVE

CO/3326/2008

Neutral Citation Number: [2008] EWHC 2065 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2

Friday, 25th July 2008

B E F O R E:

LORD JUSTICE PILL

MRS JUSTICE RAFFERTY

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ARMAND BOGDANI

Appellant

-v-

ALBANIAN GOVERNMENT

Respondent

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Mr N Yeo (instructed by Messrs Halliwells) appeared on behalf of the Appellant

Mr J Jones (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent

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J U D G M E N T1. LORD JUSTICE PILL: The Albanian Government seeks the extradition of Mr Armand Bogdani, at present in the United Kingdom. At a hearing on 8th February 2008 District Judge Nicholas Evans stated that under section 87(3) of the Extradition Act 2003 he would send the case to the Secretary of State for his decision as to whether Mr Bogdani is to be extradited.

  1. On 21st April 2008 the Secretary of State, under section 93(4) of the Act, ordered the extradition of Mr Bogdani ("the appellant") to Albania, being a territory designated for the purposes of Part 2 of the Act, for the offences contained within the request from Albania dated 30th July 2007.

  2. The appellant appeals against the finding of the District Judge under section 85(5) of the Act, that the appellant on return would be entitled to a retrial, or on appeal to a review amounting to a retrial.

  3. Section 85 provides:

    (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.

  4. The District Judge described the circumstances in the opening paragraphs of his judgment:

    1. The government seeks the extradition of the defendant for the purposes of executing a sentence of imprisonment imposed upon him. He has been convicted of a drug trafficking offence. In July 2002 he conspired to export a large quantity of cannabis from Albania to Greece. A tractor unit with an attached refrigerated trailer was stopped by Customs Officers in Albania, when en route to Greece, and they found within the trailer 1720 kilos of cannabis. The defendant's rôle had been to purchase the trailer using forged documents, and to oversee and/or assist in the loading of the drugs and the welding of the false compartment. On any view he was one of the 'main players' in the conspiracy. The final sentence approved by the Gjirokastro Court of Appeal in October 2005 was 13 years' imprisonment.

    2. The defendant left Albania shortly after the commission of the offence. He was tried, convicted and sentenced in his absence. It is accepted he did not deliberately absent himself from the trial.

  5. The District Judge made a later finding consistent with that at paragraph 10:

    There is no suggestion that the defendant waived his right to attend his trial ...

  6. The judge considered the provisions of Albanian law and concluded at paragraph 15:

    When these provisions are looked at in the way I have outlined in paragraph 10 above there is not such a lack of clarity or too many loose ends to prevent this court from concluding that Mr Bogdani, if his extradition were ordered, would be entitled to a retrial or (on appeal) to a review amounting to a retrial, with the minimum rights specified in section 85(8).

  7. The appeal came for hearing before this court, Latham LJ presiding, on 10th June 2008. There was, it is clear from what Mr Yeo (who appears today, as he did then, for the appellant) has told us, some preliminary discussion. The court then decided that the case should be adjourned. Latham LJ stated at paragraph 2, having heard arguments that the Albanian Government had had enough opportunity to satisfy the requirements of section 85 as to retrial:

    2. We are sympathetic to the arguments of Mr Yeo, but it seems to us that this is an area which really should now be resolved as best the courts of this country can on the best material which can be produced to deal with this issue. It will then, we would hope, mean that any further applications in relation to such situations by Albania can be dealt with on the basis of an established principle of law.

    3. Accordingly, what we propose to do is to adjourn the case today for the Albanian Government to have 28 days in which to produce such material ...

    Consequential orders were made.

  8. One of the points with which the court was concerned was:

    ... whether the time limit in Article 147 applies at the time of his surrender to the Albanian authorities, or is capable of being taken as starting at some other earlier date so as to preclude him from now being able to exercise his rights under Article 147.

  9. I am not prepared to hold that Latham LJ stated that on the existing material the court, which in any event had not heard argument on the material, would allow the appeal. He may well have said -- I am not doubting the impression Mr Yeo got -- in the course of argument that he saw difficulties in the Government of Albania's way. However, I am not prepared to hold that he gave any clear indication as to the view of the court as then constituted (Nelson J being with him), as to the way the case would be resolved on the existing material. Latham LJ made clear that his concern was that the issue would be resolved:

    ... on the best material which can be produced to deal with this issue.

  10. That is an approach in my view wholly consistent with that to be taken in extradition cases. In the authorities there are references to the importance of international comity, to courts not being overtechnical when considering extradition applications by foreign governments or, of course in category 1 cases, applications under the Framework Decision. I do not propose to cite any of those authorities.

  11. Mr Yeo submits, that notwithstanding, that the material produced by the government, having been given that opportunity, should not now be admitted. This point was not anticipated by submissions on 10th June. I would have expected it to have been stated that Mr Yeo, on behalf of...

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