Beshiri v The Government of the Republic of Albania

In this case the Appellant appeals against the order of DJ Grant of 6 September 2016, sending the case to the Secretary of State with a view to a decision on extradition to Albania. The Secretary of State ordered extradition on 28 October 2016. The Appellant appeals pursuant to Section 103 of the Extradition Act 2003 [“the 2003 Act”], Albania being a Category 2 territory under the 2003 Act. Permission to appeal was granted by Holman J on 2 February 2017.

Three grounds were raised before the District Judge, those being the Appellant’s rights respectively under Articles 3, 6 and 8 of the European Convention on Human Rights, which it was said should have prevented the Appellant’s extradition pursuant to Section 87 of the 2003 Act. Permission was sought to appeal on additional grounds, namely the bars arising under Section 81(a) and 81(b) of the Act. In presenting the case before us, Mr Josse QC for the Appellant did not seek to rely on Article 8. He did seek to rely on Article 3, at least to some degree on Article 6 and Section 81(b), and on Section 81(a).

Extradition is sought on the basis that on 30 October 2015 the Appellant was convicted in his absence of the criminal offence of “intimidation of a judge” contrary to Article 317 of the Albanian Criminal Code, the conviction being before the First Instance Court, Tirana. The Appellant received a sentence of six months’ imprisonment. In evidence to DJ Grant, the Appellant admitted the offending.

The Grounds advanced by the Appellant essentially boil down to two or three points. As a result of an earlier prison sentence for domestic violence, the Appellant returned to Albania on December 11 2014, to serve an additional five days imprisonment. From the airport he was taken to Police Station Number 6 in Tirana. On his account he was there mistreated and assaulted, leaving him in pain and with visible bruises to his head and face. The Appellant is a British citizen and subsequently complained about this treatment to the Foreign and Commonwealth Office [“FCO”]. He also says he was a voluble complainer about corruption in the Albanian judicial system. He submits that those complaints represent the expression of “political opinions” within Section 81 of the 2003 Act and that his extradition should be barred by reason of such extraneous circumstances. He fears that, just as he was assaulted in the past in police custody, he would be likely to be assaulted again, particularly as a man who has raised a complaint about such assaults and as a “whistle blower” in relation to Albanian judicial corruption. He submits that those matters represent bars to extradition under Section 81(b) and/or Section 87 of the 2003 Act.

The Appellant was unrepresented at the hearing below. He has an excellent command of English and did not require a translator. There is no full record or transcript of his evidence to DJ Grant. While recognising that the magistrates’ courts are not courts of record, a full record would have been helpful in this case. By agreement, a short note of his position taken by Mr Sternberg, counsel for the Government of Albania before us and below, was admitted. It reads:

“[Mr Beshiri] attends unrepresented and says he is content to proceed with the hearing. The issue he wishes to raise is that he was beaten and threatened by police officers in Albania and [h]as argued with the minister of Police in Albania and his safety would be in danger if he is extradited. In addition, he says that judges and courts in Albania are corrupt and solicit bribes. He produces various documents in English and Albanian to show that he made complaints of mistreatment…”

In my judgment, there can never have been any doubt about the substance of the case the Appellant wished to advance.

The key passages from DJ Grant’s judgment can be summarised, or quoted as follows. Having dealt with formal matters (about which no point is taken), DJ Grant turned to the evidence before him, indicating that he had read a full opening note from the requesting judicial authority and that he “heard briefly in evidence from the requested person and from his ex-partner, Ms Horner”. He prepared the written judgment on the day of the hearing. He noted that:

“Today the sole issues raised were Articles 3 and 6; that the requested person fears ill treatment at the hands of police officers in Albania and that he is unable to receive a fair trial because of judicial corruption in Albania.

The facts relating to the conviction are helpfully summarised in the “Facts & Proceedings in Albania” section in the Opening Note which I adopt. The requested person was convicted and sentenced to six months imprisonment for an offence of “intimidation of the judge”. The decision became final on 11 November 2015 and on 12 November a decision was made to enforce the decision. The Albanian Ministry of Justice submitted the extradition request on 4 May 2016.”

The judge noted that no argument was advanced about the Appellant’s right to a retrial if returned to Albania, his initial trial being in his absence. There could thus be no argument under Section 85 of the 2003 Act.

DJ Grant went on as follows:

“In oral evidence the requested person stated that he experienced problems with his ex-partner who still lives in Albania. He said in evidence that he argued with his ex-partner who took his young daughter to hotels where she was “sleeping around”. He admitted that he threatened her and said that he would kill her if she put his daughter’s life in danger. He told a very confusing tale involving corrupt police officers, threats made to him, violence meted out to him by police officers, demands made to make payments to judges, the production of forged documents and a document that was produced to him which bore his forged signature.

The requested person produced documents in English and Albanian. I was only able to read the documents written in English. The gist of those documents appeared to confirm that he had made numerous complaints about his previous treatment in Albania. Because he is a British citizen he had complained to the Foreign and Commonwealth Office and one of the two documents written in English was a letter dated 23 August 2016 written by that office to him confirming the version of events he had informed them about. I was not able to read or understand the documents written in Albanian but I was given to understand that they related to the same events as the Foreign and Commonwealth Office letter.

With regard to the allegations which led to the conviction that gave rise to the request, the requested person frankly admitted that he had made the threats in question to the prosecutor. He said he was “in stress”, that he had lost weight whilst in custody and he had problems with his liver. He said that if the court sends him to Albania, “they would rape me and would beat me up under the noses of the Embassy.” Although he had uttered the threats in question he should not be sent back because of the treatment he would receive if he was returned to Albania.

The requested person said that, “they would rip me apart if I went there. I had loads of conflicts with the Minister. He said I will make sure you will beg me to kill you. He said he would make me bleed slowly”. I understood from Mr Beshiri that he was referring to the minister in Albania who is responsible for the police and that he has incurred his displeasure as a direct result of the complaints he has made about previous bad treatment.”

Having noted the evidence of Ms Horner to the effect that when the Appellant returned from Albania in December 2014 he had “lost weight, was not sleeping and appeared very stressed”, DJ Grant went on to record in summary the arguments advanced by each side and his conclusions as follows:

“In summary the requested person said that his life would be in danger if he was returned to Albania. He said he was released from prison in Albania in December 2014. His return ticket to the United Kingdom was on 3 January 2015 but he arranged to come back earlier because he feared ill treatment.

In summary Mr Sternberg argued that this case falls far short of the test in Ullah. The requested person’s evidence is uncorroborated and the evidence of his ex-partner is based on the account he gave her. The letters written in English simply repeat the account that he provided to the Foreign and Commonwealth Office.

The requested person made reference to the fact that his friend is an Albanian member of parliament who is a friend of the Minister with responsibility for the police. I concluded that the requested person, who presented himself as both intelligent and articulate, would be able to fully express his concerns to the court in Albania in the event that he successfully applies for a retrial.

As to the allegation of judicial corruption there is no believable evidence before me of bribes having been paid to judges in Albania. The High Court in Bardoshi considered and rejected the contention that systemic corruption within the Albanian judicial system created a bar to extradition under Article 6.”

After noting briefly the Appellant’s current circumstances in England, DJ Grant recorded that there was no Article 8 argument and no such case to be advanced, and therefore concluded that the Appellants extradition was “fully compatible with his Convention rights”.

I begin with an important procedural point, which may have implications beyond this case. The Appellant obtained representation after the conclusion of proceedings below. His representatives submitted quite a considerable volume of additional material, intending that it should be considered in the appeal before us. They did so without any reference to the basis for admission of such material. Indeed, early in his oral submission Mr Josse QC for the Appellant indicated that the “Fenyvesi Test” did not (or perhaps should not) apply in such a case as this, where the Appellant had been unrepresented below. The Appellant’s written submissions prepared in advance of the appeal contained no reference to the relevant statutory provisions, or to the very well known case of Szombathely City Court and Others v Fenyvesi and Others [2009] EWHC 231 (Admin), [2009] 4 All ER 234 [“Fenyvesi”].

It is incumbent on parties and their representatives to keep in mind that the Court’s powers in an extradition appeal have a statutory basis. In relation to a Part 2 extradition, the Court’s powers on appeal are laid down in Sections 103 and 104 of the 2003 Act. In order for the Court to exercise its powers on appeal under Section 103, the Court may only allow such an appeal if the conditions in sub-sections 104(3) or (4) are satisfied. Section 104(3) is directed to a case where the issues and evidence below and on appeal are identical. Where it is said that fresh issues or further evidence arise, the Court’s powers are founded on the satisfaction of the conditions under Section 104(4), which sub-section reads:

“Section 104(4)

The conditions are that—

(a)

an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b)

the issue or 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.”

For present purposes the provisions in relation to Part 2 of the 2003 Act are identical to those in Sections 26 and 27 of the Act, bearing on extradition to Category 1 territories and the authorities dealing with Section 27 have equal force as to the interpretation of Section 104.

In Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin): [2006] 4 All ER 808, at paragraph three of the Court’s judgment, Latham LJ stated:

“It should be remembered that Section 27(4) of the Act, dealing with new evidence, refers to evidence at the appeal "that was not available at the extradition hearing". The word "available" makes it plain that, whilst I would not consider that the requirements of Ladd v Marshall[1954] 1WLR 1489, had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant "keeping his powder dry" he must expect the Court to view any application to rely on such evidence with some scepticism.”

The same question was considered in Fenyvesi. In that case, the appeal was by the requesting State under Section 29(4)(a) of the 2003 Act but the provisions are once again identical. The Hungarian judicial authority sought to introduce fresh evidence on the appeal. In giving the judgment of the Divisional Court, Sir Anthony May PQBD stated:

“32.

In our judgment, evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The Appellants did not do this in the present appeal.

33.

The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski[2007] EWHC 933 (Admin) at para 9, s 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.

…

35.

Even for Defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the Defendant's discharge. In short, the fresh evidence must be decisive.”

Mr Josse and Mr Keith rely on the remarks of Blake J in Weszka v Regional Court in Poznan, Poland [2017] EWHC 168 (Admin). That case too concerned an unrepresented defendant in an extradition case. The Appellant relies in particular on the following passages from the judgment of Blake J, containing excerpts from the Equal Treatment Bench Book addressing the problem of litigants in person:

“21.

Further, it seems to me that the DJ's handling of a litigant in person did not conform with best practice as currently recommended to judges in the Equal Treatment Bench Book November 2013 edition. The following paragraphs may be relevant:

“19.

The aim is to ensure that litigants in person understand what is going on and what is expected of them at all stages of the proceedings – before, during and after any attendances at a hearing.

20.

This means ensuring that:

i)

The process is (or has been) explained to them in a manner that they can understand;

ii)

They have access to appropriate information (e.g. the rules, practice directions and guidelines – whether from publications or websites);

iii)

They are informed about what is expected of them in ample time for them to comply;

iv)

Wherever possible they are given sufficient time according to their own needs.

…

40.

Judges are often told; 'All you have to do is to ring Mr X and he will confirm what I am saying.' When it is explained that this is not possible, litigants in person may become aggrieved and fail to understand that it is for them to prove their case.  

i)

They should be informed at an early stage that they must prove what they say by witness evidence so may need to approach witnesses in advance and ask them to come to court.

ii)

The need for expert evidence should also be explained and the fact that no party can call an expert witness unless permission has been given to the court, generally in advance.

41.

When there is an application to adjourn, bear in mind that litigants in person may genuinely not have realised just how important the attendance of such witnesses is. If the application is refused a clear explanation should be given.

…

44.

The judge is a facilitator of justice and may need to assist the litigants in person in ways that are not appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

a)

Attempting to elicit the extent of the understanding of that party at the outset and giving explanations in everyday language;

b)

Making clear in advance the difference between justice and a just trial on the evidence (i.e. that the case will be decided on the basis of the evidence presented and the truthfulness and accuracy of the witnesses called).

…

The judge's role

48.

It can be hard to strike a balance in assisting a litigant in person in an adversarial system. A litigant in person may easily get the impression that the judge does not pay sufficient attention to them or their case, especially if the other side is represented and the judge asks the advocate on the other side to summarise the issues between the parties.

a)

Explain the judge's role during the hearing.

b)

If you are doing something which might be perceived to be unfair or controversial in the mind of the litigant in person, explain precisely what you are doing and why.

c)

Adopt to the extent necessary an inquisitorial role to enable the litigant in person fully to present their case but not in such a way as to appear to give the litigant in person an undue advantage)”.”

Essentially, the Appellant’s submission was that in circumstances such as this, a District Judge in an extradition hearing has an obligation to adopt an inquisitorial role. As an example Mr Josse submitted that, once he had understood the broad nature of this Appellant’s case, DJ Grant should himself have had reference to the 2016 Report of the Council of Europe Committee for the Prevention of Torture [“CPT”] as being relevant to the suggestion here of ill-treatment by police officers in Albania. Mr Josse submitted that the CPT reports would be “meat and drink” to District Judges conducting extradition hearings. Although his submission was that the CPT report was the most central such document, it seemed clear that his submission as to the inquisitorial role of magistrates might well extend beyond this report. Given that DJ Grant did not conduct such an exercise in this extradition hearing, Mr Josse appeared to be submitting that the test for admission of further material should be disapplied for the purposes of this appeal. I return to that secondary submission below.

I would reject the submission as to the role of the District Judge in an extradition hearing, which in my view takes the remarks of Blake J in Weszka far beyond what was intended, or can be justified. Of course it is correct that a court dealing with an unrepresented litigant will seek to ensure that the individual understands the proceedings, and will have access to “appropriate Rules, Practice Directions and Guidelines”. A judge in an extradition hearing will avoid falling into the trap of treating the advocate for a represented party as the single source of reliable information, giving the impression of one-sidedness (see paragraph 48 of the Equal Treatment Bench Book). It is also correct that a District Judge will “adopt to the extent necessary an inquisitorial role” so as to ensure that the unrepresented litigant explains and presents a “clear case” (see paragraph 48(c) of the Equal Treatment Bench Book). But in my judgment it is not the obligation of a District Judge to invoke and introduce extraneous material to support that case. At most, it may be appropriate for the District Judge to enquire of counsel for the Requesting State whether there is relevant material bearing on a particular point raised by the unrepresented Defendant, invoking the duty to the court of the advocate to act fairly. It is impossible to be prescriptive without reference to the particular circumstances which arise, in a given case but in my judgment the submissions on behalf of this Appellant clearly go too far.

There is no obligation on a District Judge to canvass the horizon of potentially relevant publicly available material, based on his or her experience from other extradition cases and, by the introduction of such material, to build a case for a defendant. To engage in such an exercise would be to draw the judge into the arena. Moreover, where would the process stop? If the CPT reports, why not other documentation from the Foreign and Commonwealth Office, the State Department, or one or more of the major NGOs? What of the right of reply from the Requesting State, responding to a case elicited by the judge? A little reflection will show that the Appellant’s propositions here clearly reach too far.

Mr Josse’s secondary submission, based on the failure of DJ Grant to take such an approach, is that the filters set out in statute, and refined to some degree by the judgments in Miklis and Fenyvesi, are to be set aside. Here too, in my judgment, the submission goes too far. As was recognised in Miklis and in Fenyvesi, where the Appellant’s Convention rights are engaged the Court owes its own duty to protect those rights. If on an appeal there is an application to introduce material which is said to be central to the protection of those rights then, particularly with the agreement of the Requesting State or Judicial Authority, the Court may consider such material de bene esse and, if the material can properly be brought within the relevant statutory test, may rely on such material in reaching a conclusion to allow an appeal.

However, the statutory test must be kept in mind. There has been no submission in this case that the statutory basis upon which an appeal may be allowed is incompatible with the Convention. Nor is there any authority to that effect. Thus the Court cannot allow an appeal in an extradition case save in conformity with the statute.

In short, the fact that a defendant was unrepresented below, and did not seek to introduce material which might well have been brought forward had he or she been represented, cannot be used as a basis for setting aside the limitations on the introduction of fresh evidence into an appeal, so that a Court must accept widespread fresh evidence in the case which could perfectly well have been introduced below.

Following argument on this point, we agreed in this case to consider de bene esse a “proof” of the Appellant dated 8 December 2016, the fact that he gave an interview to a journalist on television in which he aired his complaints about the Albanian judiciary, a letter from the FCO dated 23 August 2016 to the Appellant, the 2016 CPT report on Albanian custody conditions published on 3 March 2016, and the response to that report by the Albanian Government.

At the request of the Respondent we also admitted further information from the requesting Government. Questions were submitted to Albania in December 2016. The principal volume of further information was provided under cover of a letter of 24 October 2017, with some further material under cover of a further letter of 24 November 2017. These questions and the further information they produced post-date the hearing below. Both sides wished to introduce that material into the appeal. As indicated below, we declined to accept further aftercoming information (see paragraph 76).

It is on that basis that we turn to the substance of the appeal itself.

As I have already indicated, the Appellant’s complaints are threefold. The first is that, as a “whistleblower” concerning judicial corruption in Albania and as a man who has complained of his individual mistreatment by the Albanian police, he is in fact being sought for extradition for extraneous reasons and can thus establish a bar under Section 81 of the 2003 Act.

There are a number of links in that chain. Was the Appellant mistreated? Has he made public complaints about that mistreatment and if so how, to whom and in what terms? Has he been a “whistleblower”? And then, what evidence is there to suggest that the extradition request is founded on these matters rather than on his admitted offending?

The Second Ground derives from Article 3 of the Convention as a bar pursuant to Section 87. Here too there are interlocking questions of fact. Was the Appellant mistreated in the past? Has he been a “whistleblower”? If yes to either or both of those questions, does the evidence establish a risk to the required level that he will undergo inhuman and degrading treatment in the future if extradited?

Finally, there is the question of Article 6 of the question and Section 87 of the 2003 Act. Given that it is agreed, since the Appellant was tried in his absence and therefore has a right to a retrial under the Albanian system of criminal justice, will the factors identified mean that there is a risk of a breach of Article 6 in the retrial?

Reading together the detailed further information provided by the Respondent and the proof of evidence from the Appellant, it is possible to establish the detailed sequence of events, identifying differences where they occur. The further information from the Respondent consists of a covering letter from the Ministry of Justice of Albania and accompanying documents, including decisions of the Tirana Judicial District Court, memoranda from and between the Albanian Ministry of Justice, General Prosecutors Office; the Ministry of Internal Affairs; the Prosecutor’s Office at the First Instance Court of Tirana; the Police Directorate of Tirana; the Directorate of General Inspection of the Ministry of Internal Affairs; the Ministry of Justice, General Directorate of Prisons and the Municipality of Tirana. There is a considerable volume of documents, which the Court has in translated form. I will analyse the chronology and the key points in the ensuing paragraphs.

It is accepted that the Appellant was arrested for domestic violence against his wife (and apparently his sister) in October 2012. On 10 October, there was a decision to initiate prosecution against him. On 4 February 2013, the Albanian Court determined that the Appellant, who had been granted bail on condition of residence within his house, had fled to England. On 7 March 2013, court records show that an attorney was appointed to represent him, on the instruction of his mother, for a trial in his absence. On 16 April 2013, there was a decision to proceed in his absence and the trial took place on 29 May 2013. The copy court file demonstrates that on 29 May 2013 he was tried in his absence, convicted of offences of domestic violence and sentenced to 16 months’ imprisonment. The conviction was upheld on appeal on 4 December 2013.

On 15 May 2014, the Appellant was granted an amnesty with the effect (according to records) that the sentence would be reduced to five days’ imprisonment. Although there is no direct corroboration of this from the Appellant’s proof, this is consistent with his later entry that on his return to Albania he was expecting a five day prison sentence.

According to the account of the prosecuting lawyer, Oltiana Çifliku, set down in the court record for decision number 3727 dated 30 October 2015, it was on 18 July 2014 that the Appellant began sending abusive or threatening messages to her. In a civil law system such as that in Albania, prosecutorial roles and decisions are carried out by judicial officials such as Ms Çifliku. Messages continued from the Appellant to a total of nine separate communications between 18 and 21 July. The court record shows one message sent late on the evening of 21 July which, in translation, reads as follows:

“Oltiana Çifliku I finished what I had to do, now listen good what I am saying if ever I have to catch you in the street no hospital can undertake your recovery. This is for sure because I will put you in a wheelchair and I can easily get you because I know where your house in Durres is and I also know where your boyfriend lives so I am ok with you and for that four-eyed who estimated my daughter for 5000 euros I will make her a pleasant gift to her and her family and inshallah they work the border belt to find my tracks because if I enter Albania poor you and the good look judge.”

On 23 July 2014, the court record demonstrates that Ms Çifliku made a “criminal denouncement” in relation to these messages.

On 11 December 2014, the Appellant returned to Albania intending to serve the five day “remainder” (as he put it) of his sentence. He was arrested at the airport and taken to Police Station Number 6 in Tirana. Records show that he arrived at 16:50hrs and was placed in custody. The Albanian authorities have disclosed records of the escort between the airport and the police station. There are also records which detail the arrest and custody transfer and indicate that the Appellant’s sister was notified of his arrest.

The Appellant’s account is that he was taken to the police station and placed in a “freezing cold cell without windows, beds or covers”. In the cell was “an old man” who he says was having a heart attack. The Appellant tried to rescue him but “he wasn’t replying and was foaming from his mouth”. He summoned officers who did not help but stood there laughing, although they eventually took the old man to hospital. The Appellant asked to move from that cell because he was so cold, and was told to shut up. He was denied blankets or any other covers. He began to shout and complain. He then said this:

“An argument erupted between me and three or four policemen through the door. One policeman opened the door and slapped me very hard across the face, whilst another punched me in the head, in my temple and I fell back and hit the wall. I saw stars and lights and for three minutes I was physically unable to move.”

The Appellant says that after about twenty minutes he “regained the ability to function and speak” and asked for medical help. Despite one policeman reassuring him, no-one came. He spent the night in the cell after this assault without a blanket. After a change of shift at 6am, he asked again to go to hospital but no-one came. On a later visit to the toilet, one of the guards who hit the Appellant, he said, apologised to him but he did not respond.

Later that day (12 December 2014) the Appellant states that he saw a senior police officer, named Osman Barrel, who shouted at the guards and told them to call an ambulance. Late in the evening the Appellant fainted and he was “dragged into a police van” and told that they were taking him to hospital. In fact they did not, but took him to the police directorate in Tirana. They placed him in a police canteen to warm him up. A doctor attended, named Osman Hoxha. There was another row as officers shouted at the Appellant to get him to give his finger prints.

After this, the Appellant describes a conversation with the doctor, who gave him a document to sign which stated that the Appellant “claims to have been physically assaulted by the police”, rather than stating –

“I had actually been assaulted by the police. I said I would only sign if he took a photo of my face, he said this is not possible. Two police officers came to me saying “please sign the form, don’t cause us trouble”. So I refused to sign and he said I would not go to hospital”.

He was then taken to a cell, not a hospital, where he found the old man he had seen earlier who had had heart problems.

Within the documents produced by Albania, a number deal with 12 December 2014. A “book of medical examinations” includes a numbered entry of an examination at Police Station Number 6 by a doctor, who records in relation to the Appellant “contusio capitis (without problems, without bony lesions)”. The record also records that the Appellant was supplied with Ibuprofen. A further document headed “Republic of Albania Ministry of Internal Affairs: State Police Directorate” and with the sub-heading “Medical File” records an examination on 12 December 2014 at Police Station Number 6. The relevant text reads:

“Morbid anamnesis: the patient refers that he is punched in the head and (illegible) he complains of headache. Objective examination: the patient currently complains of headache and other (illegible). He generally does not have any major health issue. Diagnosis: contusio capitis.”

Other translated documents appended to the medical file include entries headed “security unit” reading:

“A meeting was conducted with this convict and it follows that he does not have any problems and conflicts with the convicts of our institution.”

An entry headed “Social Care Unit” contains the following:

“The convict was contacted by the reception commission coming from the district police directorate of Tirana. During the preliminary interview he does not refer any mental health problems. The psycho-emotional situation is calm and normal. He has no signs of violence in the body.”

That document being signed off by the “Head of Social Care Unit, Daniella (illegible) signature.

A further entry in the same translated file is headed “Health Service Unit” and the body of the entry reads:

“Currently without any psycho-somatic complaints. He appears objectively normal. Without any signs of violence in the body. Clinically healthy.”

That entry is signed “Head of Health Unit (illegible) Uçi signature”.

Pausing to consider the evidence thus far, unless there is widespread forgery by a range of officials producing the Albanian documentation, the inference is clear that the Appellant complained of assault at the time when he himself states that he was assaulted and that the complaint was made to a doctor, who saw him promptly. Given the content of the entries at the point of transfer away from Police Station Number 6, there was no evident appearance of assault at the time of transfer.

In his proof of evidence, the Appellant’s account is that on 16 December he was told that his five days of imprisonment was a miscalculation and that he was liable to serve a further ten days’ imprisonment. This is a rather different account from that set down in a letter from the British Foreign and Commonwealth office dated 23 August 2016. The relevant passage in the letter recording his account, which was sent to the Appellant himself at his home address in Coventry, reads as follows:

“You also told us that, on the evening of 12 December 2014 an unknown person visited you in your cell and informed you that, according to the records, you had ten days to serve and not five. You said that you knew that this was not true but your sister had signed papers which were given to her by a police officer and which stated that you had ten days left to serve. You told us that she had done this on your behalf, without reading the paperwork and without your knowledge. This meant your sister had in effect agreed and confirmed on your behalf that you had ten days remaining to serve in prison. You told us that you were then taken to Vaqarr Prison where you saw a doctor and were prescribed and received medication.”

In his proof, the Appellant stated that “on the fifth day” (which would be 16 December) he was waiting to leave the cell at the Directorate of Police and was expecting to leave the cell on that day. He goes on:

“At 11am Dr Hoxha with the officers came in and said ‘no he still has bruises on him and a black eye’ and they left. I was told that they can’t give me the letters of release and that I needed to go to Vaqarr. Three policemen then put me in a van and took me to Vaqarr. Whilst I was waiting for the letter of release, I was approached by a person who said ‘I am a lawyer for the prison, you will not be released today, but will have to remain in prison for another ten days due to a miscalculation. My sister was also there having come from Italy and I told her to go to the British Embassy to tell them that I have been beaten up by the police.”

It follows that on his account in his proof he was not informed of the extended period of imprisonment until 16 December, the day of his transfer to Vaqarr Prison. It further follows that the doctor was complicit in a further detention designed to conceal the assault, and the additional days detention were not a miscalculation of which he was informed on 12 December.

A covering letter in the documentation shows that on 17 December the prosecutor’s office sent an “order for enforcement of criminal judgment” at the Vaqarr prison. The Appellant was released on 26 December 2014. On 28 December he returned to Britain.

On 2 January 2015, the Appellant contacted the British Embassy in Tirana to inform them of his experiences while in prison. According to the Appellant’s proof, he had travelled back to Britain on 28 December rather than his booked date of 3 January, because he was fearful that the authorities would “fabricate further documents that would incarcerate me further”.

Once he returned to Britain he states that the police “paid my elderly parents in Albania a visit in the early hours of the morning stating that they were looking for me”. Such visits continued “weekly”.

The Appellant’s proof mentions no further events between January and April 2015.

On 5 January 2015, the Albanian documentation records a further threatening message from the Appellant to Ms Çifliku. The court record of the decision of Judge Tereza Lani dated 30 October 2015 records the following message from the phone number linked to the Appellant:

“Sorry for disturbing you but I’d like to send a message to those at the prosecution office and don’t think that my eye doesn’t have any weight. I have forgiven you for all the papers you prepared the ones you know yourself and I have promised I will never mention it any more but those police men of Kombinat who blinded me until I breathe I won’t forgive them as well as those who allowed them to beat me for five days even them will be swept by the wave and we will push this thing to the end and the mouse-moustache who protects the police men send him this message if it is possible for you and find a beautiful story for yourself to rescue from the wave.”

According to the FCO letter of 23 August 2016, it was on 9 January 2015 that the FCO raised the Appellant’s complaints with the Albanian Ministry of Foreign Affairs. Since it is the Appellant’s case that it was this complaint which stimulated the request for his extradition, it is helpful to look in detail at the evidence available. The FCO letter reads in its relevant parts:

“The Deputy Head of Mission and a consular official raised your mistreatment allegations in a meeting with the Director of Consular Directorate at the Albanian Ministry of Foreign Affairs, on 9 January 2015. They handed over a letter outlining the allegations that you had reported and asked for an impartial investigation to be conducted. They also asked that the embassy be updated on the outcome of their investigation.”

The record of the decision of the Tirana District Court on the relevant point reads as follows:

“The prosecution office of Tirana Judicial District based on the criminal denouncement of date 23.07.2014 of the citizen Oltiana Çifliku and the closed legal provisions, registered on date 09.01.2105 in charge of defendant Alban Beshiri the criminal prosecution number 160 for the commission of the criminal offence “intimidation of the judge” envisaged by article 317 of criminal code. Concretely, the person in the capacity of the damaged one in this prosecution is citizen Oltiana Çifliku, (currently in the position of prosecutor in the prosecution office of Durres Judicial District who for the period 2012 to 2013 was in the position of prosecutor in the prosecution office in Tirana Judicial District.”

In order for the consular complaint to have been the stimulus for the launch of the criminal prosecution, the fact that it had been made on 9 January to the Ministry of Foreign Affairs would have had to be communicated on the same day to the relevant prosecutorial office, the prosecution issued in bad faith, and the true precipitating factor of the prosecution concealed from the court record. That is in effect the Appellant’s case.

Included in the further papers produced by Albania is a document entitled “Notary Statement”. This is signed by a Notary Public Mr Jaupi, and by the Appellant, and records a statement made in person before the Notary on 16 February 2015 in the “Notary Chamber of Durres, Albania”. The central parts of the statement read as follows:

“Alban Beshiri, son of Ibrahim (father’s name), born on 06.04.1982, born in Tirana and domiciled at the address 6 WREN STREET COVENTRY ENGLAND CV2 4FT, England, identified by the British passport 466288374, of legal age, with full legal capacity to act, who asked me to draw up the present notary statement as follows.

Under my legal responsibility, upon free and absolute will, I hereby declare as below:

‘On 11.12.2014 I was detained in Rinas in view of a non-served sentence because I had still 5 days of imprisonment to serve. Based on this criminal judgment, I was detained to supplement the non-served remaining punishment of five days of imprisonment. In fact, the police detained me for a period of 15 days, from 11.12.2014 to 26.12.2014.

The police officers of the Police Station no. 6, where I have stayed for around 24 hours, exercised physical and psychological violence against me until I fainted and lost sight.

After 24 hours I was transferred to the District Police Directorate of Tirana, where I have also stayed for a period of four other days. Although I asked medical aid, it was refused and it was not administered. Further, they sent me to the prison of Vaqarr, where I have stayed until 26.12.2014.

Due to hitting and maltreatment against me at the Police Station no. 6, I have lost the sight of left eye [emphasis added] and for this purpose I am being medicated at a hospital in England, where I live.

I have informed about everything the State Police, Minister and British Embassy in Tirana’.”

It follows that the Appellant must have returned to Albania by that date.

According to the Appellant’s proof, he had a friend who was acquainted with a Mr Saimir Tahiri, whom he describes as the Albanian “Minister of International Affairs”. At the time of the Appellant’s release from custody in December 2014, the Appellant asked his friend if he would make contact with Mr Tahiri so as to “get some justice for the abuse and torture I endured”. The response through the Appellant’s friend was that Mr Tahiri had refused to get involved.

However, on 23 February 2015, the Appellant sent a long letter to Mr Tahiri which was sealed in Tirana on 27 February 2015. This is a letter of complaint about his treatment. The Appellant’s representatives have described this letter as “intemperate”. The letter contains an account of the Appellant’s complaints, and is direct evidence of the way he has expressed himself. It is also relevant to the suggestion that, from December 2014, the Appellant had been in fear of the Albanian authorities, in the way he claims. I append the whole of the text as an Annex to the judgment.

The letter is incorporated into the documentation provided by Albania under the heading of Ministry of Internal Affairs, Directorate of General Inspection. It appears to have been submitted by the Directorate “for assessment” to the “service of internal affairs and complaints” on 20 April 2015. The covering text reads:

“Please find attached the letter sent by Mr. Alban Beshiri, with domicile address at 6 Wren Street Coventry CV 24 FT, England, addressed to the Minister of Internal Affairs, Mr. Saimir Tahiri.

“The citizen is detained by virtue of a criminal judgment to supplement 5 remaining days and is detained for a period of 15 days. Further, he complains that he was maltreated by police officers of the Police Station no. 6, losing the sight of left eye [emphasis added] and for that purpose he was medicated at the hospital in England, where he is and lives”.

We kindly request to examine the complaint of citizen based on the letter, to verify issues raised and send a reply, based on legal provisions.

Thanking for your cooperation.

DIRECTOR

ILIR MARKO

Signed & sealed”

Once again, unless there is widespread forgery in the aggregation of Albanian official documents, it follows that the Appellant’s complaints were at least passed on for detailed comment. At that stage the Appellant was complaining of the loss of sight in one eye.

At around this time, the Appellant’s father sadly died and on 21 April 2015 he went to Albania for the funeral. His account is that when he reached the family flat there were three men standing with their hands in their pockets who looked like policemen. One of them “pulled out a gun so that I could see”. On the same day some police officers came to the house after the electricity had been cut off, despite the fact that the Appellant’s mother, on his account, had a payment book with a full record of payments. When this was produced the visiting police officer was confused. Following this, the Appellant’s account is that he went to meet an officer from Police Station Number 6 (that is to say the police station where he had been assaulted) and told the officer that the Appellant’s belief was the British Embassy must have made a complaint about the assault. The police officer, according to the Appellant, said that he was “clearly misinformed and that no-one had made a complaint and if one had been made we would all know about it.”

At this point in his statement, without giving a specific date but in context at around the end of April, the Appellant states that he met “someone who worked in the police department”. This informant had been:

“in the office and supposedly he had heard Saimir Tahiri, the Minister for International Affairs (sic) say that he would sort things out with the Embassy, but that the others should make sure none of this came out in the media and to make sure that his family doesn’t find out.”

The Appellant then states that he was informed by this individual that:

“I should be careful as a person named Emiliano Shullazi may come after me to kill me, he said this is the person the Minister normally uses to do his dirty work. He warned me and said don’t go out late at night or in quiet places.”

According to his proof, the Appellant states that on 30 April 2015 he went to the British Embassy (presumably in Tirana) and told them that he believed he was under threat and there were “people looking for me”. He was told to get a lawyer as the Embassy was “unable to help me”. On the following day, 1 May 2015, the Appellant’s account is that he went for lunch “to a place 30km away from Tirana, on Elbasan Road” with friends. At around 1pm:

“Emiliano Shullazi turned up with about 30 others. They parked right in front of the restaurant and I saw them looking at me, the whole road was blocked off from their vehicles. I had seen Mr Shullazi before in the media so I recognised him. I know he was there to threaten me and make sure I knew who I was (sic).”

Following this, the Appellant returned to England.

Also contained in the record from the Tirana District Court is the record of the decision number 3727 dated 30 October 2015 from Judge Lani, containing the Appellant’s conviction in his absence of the offence of “intimidation of the judge” contrary to Article 317 of the Criminal Code. This is the offence in respect of which extradition is sought. The record contains a full account of the evidence and records the conviction and sentence of 6 months’ imprisonment. The Appellant was represented by an advocate at the time.

On 12 November 2015, a decision was taken to “execute the criminal decision … and enforce the sentence”.

At the same period in November 2015, according to the Appellant’s account, he arranged to speak to a reputable Albanian journalist in order to arrange an interview regarding his mistreatment. In December 2015, he gave such an interview, which is available on You Tube, and a link has been provided in the material before the court. I stress we have not looked at the interview: its relevance is solely that it exists. The Appellant does not seek to rely on the contents as evidence of the truth. It is noteworthy that he gave this interview after he says his life had been threatened.

Following upon the decision of November 2015, the extradition request was drafted on 20 April 2016 and on 4 May 2016 submitted by the Albanian authorities. It was certified as valid on 17 May 2016, following which the Appellant was arrested on 12 July 2016.

Counsel for the Respondent, Mr Sternberg, has provided the Appellant and the Court with a note of the questions asked of the Albanian authorities which stimulated the provision of the further information to which I have referred. He states that the questions were sent to the Albanian authorities in December 2016, and this is confirmed by a memorandum from the Albanian General Prosecutor’s Office: Department of Jurisdictional Foreign Relations, bearing the date 6 January 2016, but in fact dating from January 2017. This confirms that the letter of request for further information was “dated 23.12.2016”. A response from the General Prosecutor’s Office to the Ministry of Justice reads in its central part as follows:

“In reply to your letter no. 1715/17 Prot., dated 23.12.2016, thereby transmitting the request for additional information of the British justice authorities in the framework of procedure of the extradition from United Kingdom to Albania of the Albanian citizen Alban Beshiri, we send you attached the reply of the Prosecutor’s Office at the First Instance Court of Tirana no. 2391/5 Prot. A.H, dated 30.12.2016, confirming the fact that after verifications conducted at the Prosecutor’s Office of Tirana, no documentation proves to be referred by the Police related to the criminal report of the above cited subject for physical maltreatment exercised by police officers against him.

(please find attached 1 page)

Thanking for your cooperation,

PROSECUTOR GENERAL

ADRIATIK LLALLA

In absence and duly authorized

Director of the Directorate for Control of Investigation, Criminal Prosecution

Representation in Trial and Supervision of the Enforcement of Criminal Judgments

ADNAN XHOLI”

The language of the letter is somewhat tortuous, but it is clear from the context that the meaning is not that there was never a complaint of physical maltreatment, but rather that there was no police report of maltreatment.

Before considering the implications of this unavoidably lengthy recital of evidence, it is necessary consider the context which may be thought to arise from the CPT report on the Albanian justice system of 3 March 2016 and the response of the Albanian Government of even date.

The CPT report, issued on 3 March 2016, followed the visit of inspection carried out by a high-level delegation between 4 and 14 February 2014. The delegation did not visit Police Station Number 6 in Tirana, nor the Vaqarr prison. They did visit a number of comparable institutions, and took broad evidence about the Albanian system of custody in general, and alleged ill-treatment in police custody in particular. Their findings on that issue were summarized as follows:

“Police custody

The majority of the persons interviewed by the delegation indicated that they had been treated correctly whilst in police custody. Nevertheless, as in 2010, a significant number of credible allegations were received from detained persons (including juveniles) of recent physical ill-treatment by police officers, consisting mainly of slaps, punches, kicks and truncheon blows. In some cases, the ill-treatment alleged was of such severity that it could be considered as amounting to torture (e.g. extensive beating with hard objects such as a chair leg or a wooden bat). Most of the allegations concerned ill-treatment during the initial questioning by operational police officers in an attempt to obtain confessions or other information. In several cases, the persons concerned displayed physical marks consistent with the allegations made.

The report concludes that the situation has not improved since the 2010 visit – rather the opposite – and that determined action is therefore required on the part of the Albanian authorities to pursue a policy of “zero tolerance” of ill-treatment, taking into account a number of precepts set out in the report.”

The Committee recorded that no allegations were received of physical ill-treatment of prisoners in prison establishments.

The Committee emphasised that the police mistreatment problems must be addressed by the Albanian authorities, and in doing so focussed on mistreatment during the investigation of crime. They urged the Albanian authorities to pursue a policy of “zero tolerance” to such ill-treatment, looking to training and systems of detection to address the problem: see the report at paragraph 16.

In response the Albanian government replied that there had been an –

“Increase of the professional and technical level of the police personnel through the organization of specialized trainings with focus on prevention of torture, improving the treatment and respecting the rights of the detained/arrested, in the police facilities.”

This had manifested itself in “specialized training” of police officers, nationally and at a local level, in 2014 and thereafter, supported by specific documents of instruction: “Caution Notes” to officers setting standards of behaviour and treatment. There had also been “checks and inspections” by the “central police structures” which include Tirana Police Station Number 6, to reinforce these standards.

The CPT inspection came in early 2014, some ten months before the alleged ill-treatment of the Appellant. The instructions and training responding to the problem began before December 2014, but were ongoing. It must also be clear that in the view of the CPT, this was a long-standing problem. It would be naïve to assume that merely by say-so on the part of the Albanian authorities, an entrenched culture of police mistreatment during investigations would be abolished overnight. However, nor should it be assumed that the actions of the authorities have been without effect.

On 19 December 2017, following the hearing before us, the Respondent advanced some further information, in letter form, from the Respondent’s Ministry of Justice. I have considered the matter with Goss J, and we have decided against admitting this material. Firstly, the information appears to add little, save for the name of the prison where it is intended the Appellant should serve his sentence. Secondly, this information clearly could have been introduced at a very much earlier stage, and this fails to satisfy the Fenyvesi test.

The CPT material indicates that there has been a persisting problem of mistreatment of suspects by police officers in the course of active investigation of crime. As I have indicated, one must not be naïve and imagine that such a culture can necessarily be abolished at a stroke by government first, or by training programmes. At the same time, the response of the Albanian authorities to this identified problem has been much more than token acknowledgment. The degree of response indicates to me, at least on the material before us, that there has been a genuine effort to bear down on the problem, and that the problem has been given considerable prominence.

It is noteworthy that the CPT emphasised the core problem arose in the course of active investigation of crime: essentially mistreatment typically arose where detectives were seeking a confession. No such question arises here, since the Appellant admits the offending. In any event, there would scarcely be a need for confession, given the material available to support the charges. In setting the context, it is also helpful to note the absence of any identified pattern of violence in prisons. This is not a penal system, as it appears, where convicted prisoners are routinely abused.

In my view, the Appellant is very far from a reliable witness. His accounts have many inconsistencies, and exaggerations as I have already identified. The nature of his threats and the content of his “intemperate” letter (Annex 1) make clear that his thinking is confused, self-centred, ungoverned and aggressive. His account cannot be relied on where it is unsupported by other material. His attempts to portray himself as a significant whistleblower, or an opponent of the Albanian authorities of sufficient standing to attract a high level conspiracy, either to press charges for extraneous reasons, or to engage in planned mistreatment, I find quite unconvincing. What is convincing is a picture of a loud, difficult and obstreperous man, who might well be a challenging detainee.

I cannot exclude wholly that the Appellant was assaulted by police officers in Police Station Number 6, essentially because of those factors. I cannot and do not say there was probably an assault, as opposed to the effects of hysterical behaviour. I do conclude that the Appellant has grossly exaggerated his injuries and complaints. There is absolutely no basis in evidence to sustain his claim of lost sight in one eye.

The material produced by the Respondent demonstrates on the face of it a proper response to the Appellant’s complaint of assault. I do not find any inconsistencies or gaps in the evidence which would support the Appellant’s account. I recognise that analysing such material may not give a conclusive answer, since there can be no assessment of the individuals creating the relevant notes and records, and one is dealing with an unfamiliar culture. However, the records appear to be reasonably thorough and consistent. It is also clear that if the Appellant’s account was correct, then a number of those in authority, including the medical examiner, would have to be guilty of suppressing the truth to protect violent police officers. There is no basis on which that conclusion could properly be reached, particularly in the light of the Appellant’s very poor credibility.

I therefore conclude that even if there was an assault, it was very much less severe than the Appellant suggests, and that there was a reasonable response from the Albanian authorities. I reject completely the allegation that the Appellant and his family were the subject of high-level threat and persecution.

I also reject the suggestion that the prosecution and request for extradition were prompted by the communication of the Appellant’s complaints by the British Embassy on 9 January 2015. The timing does not bear that out, for the reasons set out in paragraphs 53-55 above. For the prosecution and extradition request to have been prompted by the complaint, there would have to have existed a widespread conspiracy, crossing Ministry barriers and resulting in an immediate decision to prosecute on the same day. This is very highly improbable. It is very much more probable that the decision to proceed on 9 January was a consequence of the Appellant’s further threatening message of 5 January. Extradition simply followed.

I am also quite unconvinced by the argument that the Respondent Republic commonly seeks extradition only in cases of very long sentences or very major crime, and that this request is exceptional, indicating an ulterior motive or extraneous cause. In any country, interference with the judiciary, the police or the justice system will be taken seriously. And the Albanian authorities could be forgiven for concluding that this Appellant’s behaviour was erratic, and was likely to repeat itself.

For these reasons, I would reject the suggestion that the extradition request was made for extraneous reasons. There is no bar to extradition within section 81(a). I would also reject any suggestion that he is at risk of “punishment, detention or restriction in his liberty” by reference to his views on the Albanian justice system, even if these were held to be “political opinions” within section 81. There is no bar under section 81(b) or Article 6 ECHR.

I would also reject the appeal in relation to Article 3 ECHR and section 87. It appears to me very unlikely, given the history here, including the focus on the Appellant provided by this case, that he is at risk of inhuman and degrading treatment, much less torture, if extradited. He will not undergo an investigation because he admits the offences. There is no need for him to be in police custody or the custody of any except the prison authorities, save perhaps for a transfer to prison, and his treatment will be the subject of close attention.

For those reasons, I would dismiss this appeal.

I agree.