Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2014] HCJAC 33 XC255/11   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL UNDER THE EXTRADITION ACT 2003   by   FATJON KAPRI   Appellant;   against   HER MAJESTY'S ADVOCATE (for the Republic of Albania)   Respondent: _____________

 

Appellant: J Scott, QC (sol adv), C Dempsey, solicitor advocate; Capital Defence Lawyers

Respondent: Dean of Faculty (Wolffe QC), Hawkes; the Crown Agent

 

25 April 2014

Procedural History

[1] This is an application by the respondent for the extradition of the appellant to his native Albania, which is a category 2 territory under the Extradition Act 2003. The case has a prolonged history and has already been the subject of two decisions of this court ([2012] HCJAC 17 and [2012] HCJAC 84) and one from the United Kingdom Supreme Court (2013 SCCR 430). Details of its history can be found in the relative Opinions. In summary, on 23 December 2002, the appellant was convicted in his absence at the Judicial District Court of Elbasan, Albania, of the murder of another Albanian in London on 7 April 2001. At that time, the appellant's whereabouts were unknown. In May 2010 he was traced to Glasgow, where he was living under a false Macedonian identity.

[2] The appellant was arrested on 24 June 2010. An extradition hearing proceeded over 3 days at Edinburgh Sheriff Court in December 2010. These proceedings had, first, involved a preliminary issue about whether the extradition documents were in proper form. Secondly, there was a contention that, notwithstanding the appellant being a fugitive from justice from the time of the alleged murder until his arrest, the delay since the conviction meant that his extradition would be unjust and oppressive. Thirdly, the appellant maintained that he would not be afforded a retrial in the event of his extradition, as required by section 85(5) of the 2003 Act. Alternatively, any retrial would be unfair because the appellant would not be able to choose his own lawyer or be permitted to examine witnesses, as required by section 85(8).

[3] The sheriff rejected all of these arguments. He followed the line of authority which states that Council of Europe countries (ie including Albania) are presumed to be compliant with the European Convention on Human Rights and capable of protecting accused persons from unfair trial (Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [6] citing Symeou v Greece [2009] 1 WLR 2384 and Gomes v Trinidad and Tobago [2009] 1 WLR 1038, Lord Brown at para 35). Accordingly, on 20 January 2011, having reached the view that there was no basis for the contention that Albania would not afford the appellant a Convention compliant trial upon his return, the sheriff determined that there were no bars to his extradition. He remitted the case to the Scottish Ministers for consideration under section 87(3) of the 2003 Act.

[4] On 15 March 2011, the Scottish Ministers ordered the appellant's extradition. The appellant appealed to this court. His Note of Appeal, which was lodged on 18 March 2011, contained seven grounds (3(i)-(vii)). Grounds 3(i), (ii) and (iii) related directly to what had been argued before the sheriff. Ground 3(iv) was that the sheriff had erred in concluding that the appellant would be entitled to a retrial and that the Convention guarantees would be afforded at any such retrial. Ground 3(v) was simply that the sheriff had erred in determining that the appellant's extradition was Convention, notably Articles 5 and 6, compliant. Ground 3(vi) contained a contention that there was a real risk of a breach of Article 3 (inhuman or degrading treatment) because of the "turbulent and corrupt political system in Albania". Ground 3(vii) was that the appellant's extradition amounted to an "abuse of process".

[5] It is worth pausing at this early stage to notice that, in terms of section 113 of the 2003 Act and as prescribed by the Act of Adjournal (Criminal Procedure Rules) 1996 (rule 34.4.(6)), the High Court requires to begin to hear an extradition appeal of this type within 76 days of the lodging of the Note of Appeal. That would have been by the end of May 2011, almost three years ago. However, the appeal was allowed to meander gently through a series of procedural hearings, at which there were several general discussions about what was to happen in the appeal, without any substantive decisions actually being made. Eventually, on 14 July 2011, the appellant intimated that he was not going to argue grounds 3(i), (ii) or (iii). On 13 September 2011, the appellant said that he was not going to argue ground 3(vi) either. This left grounds 3(iv),(v) and (vii). At the September diet, the court noted that:

"The article 6 ground [presumably 3(v)] was to be argued and fleshed out on the basis that the Albanian authorities and the legal system was fundamentally corrupt and that both prosecutors and judges were known to have taken bribes. This was something which was not argued before the sheriff."

 

This was the first mention that there might be an argument based upon a contention that the Albanian legal system was corrupt. It came well over a year after the arrest, months after the lodging of the Note of Appeal and long after the appeal ought to have been determined.

[6] On 12 October 2011, although it is not minuted in quite this way, the court allowed the Note of Appeal to be amended in terms of a Minute of Amendment. This extraordinary document deleted grounds 3(v) and (vii). This would have left only the retrial point, were it not for the Minute's substitution of a new ground (v) which, whilst retaining the basic point about the non-compliance of the appellant's extradition, formally alleged for the first time that the Albanian judicial system was "systemically corrupt". Reference was made in the new ground to selected passages from a number of International Governmental and Non-Governmental Organisation (NGO) reports. Although not all of these ultimately featured in the appeal, they included papers from the European Union Commission on Albania's Application for Membership (2010); the Institute for Development Research and Alternatives (IDRA)'s Corruption in Albania, Perception and Experience, Survey 2009, Summary of findings; the Bertelsmann Transformation Index 2010: Albania Country Report; and Transparency International's reports on measures to combat corruption in Albania. These documents refer to the existence of corruption generally and to elements affecting the judiciary. The ground of appeal alleges that corruption within the judiciary is a problem and that it would constitute a "flagrant denial of justice" were the appellant to be extradited. The ground ends by a "reference" being made to reports from Dr Merila Bogdani and Ms Miranda Vickers, which had been lodged. A further report by an Albania lawyer, namely Periand Teta, on the prospect of re-trial was also produced.

[7] It was readily accepted, as it was bound to be, that the ground of appeal and the reports, in so far as they alleged judicial corruption, had not featured at first instance. Nevertheless, on 12 October 2011, the court fixed a one day hearing to determine "the preliminary issue of the admissibility of new evidence which arises from the amended Note of Appeal". It was this issue that featured in the Opinion of 2 February 2012, which described the Bogdani and Vickers reports as follows:

"[28] ... Each presents a general picture of aspects of Albanian political and legal structures. Corruption and organized crime are said to be endemic. The judicial system is said to be weak with instances of judges becoming targets for defamation and assassination being mentioned. There is said to be an absence of the rule of law, the absence of an effective police force and a functioning judiciary system. However at other parts of the same reports descriptions and assessments of the functioning of the judiciary as undertaken by International Bodies are referred to."

 

There was mention of it being normal in Albania for criminals to pay judges in order to escape conviction. However, the Opinion continued:

"[30] None of these examples impact on the circumstances in which the present appellant would find himself if returned to face trial in Albania. ...[T]he material contained in both of the reports in question is of a wholly general nature and contains nothing to suggest that any of the concerns identified would be of application to the appellant's case."

 

The court concluded that the content of the reports was irrelevant to the ground of appeal and "ought not to be admitted for this reason".

[8] Without deciding the matter, the court commented that the reports were prepared by persons who were based in the United Kingdom and were neither legally qualified nor had any experience of working in the Albanian legal system. The reports drew on second hand material and the court was "not entirely" satisfied that this evidence would be competent.

[9] The court's decision effectively cut away the support for the new ground (v). The appeal proceeded on ground (iv), on the basis of the content of the Teta report (or rather a substituted report by Ms Elira Kokona, an expert in Albanian law), which was not objected to, and the evidence which had already been led before the sheriff. On 2 May 2012, a 3 day hearing commenced. In its Opinion of 1 June 2012, the court stated that it was satisfied that the appellant, if extradited, would have an effective right to appeal against his conviction, which would be a review amounting to a retrial in terms of section 85(8) of the 2003 Act. The appellant's appeal was dismissed. Leave to appeal to the United Kingdom Supreme Court was granted.

[10] The ground of appeal, which had been based upon criticisms of the court's finding that the appellant would obtain a review amounting to a retrial, was not pursued as a discrete point standing adverse decisions in England on similar grounds (R (Mucelli) v Secretary of State for the Home Department [2012] EWHC 95 (Admin), Cranston J (with whom Toulson LJ agreed) at para 55); and Zeqaj v Albania [2013] EWHC (Admin), Gloster J (with whom Gross LJ agreed) at para 16)). However, the "systemic" corruption point was maintained under reference to: (i) an IDRA report - Corruption in Albania: Report of Comparisons etc.; (ii) a Foreign & Commonwealth Office Annual Report on Human Rights (2010); and (iii) a Home Office UK Border Agency Country of Origin Information Report (2012), which quoted from the United States of America's State Department 2010 Human Rights Report on Albania. The contention was that there was enough in this material, and in the reports of Dr Bogdani and Ms Vickers, to give rise to a concern that this court had not given proper consideration to the issue of corruption when excluding the proposed new "evidence" in the two reports as irrelevant.

[11] Lord Hope expressed the opinion (para 28) that: "there is no smoke without fire, and where allegations of corruption are widespread they must be taken seriously". Whereas it was accepted that the appellant required to overcome a threshold test by demonstrating a "flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country", it was not necessary, where "systemic" judicial corruption was the complaint, "to point to particular facts or circumstances affecting the case of the particular individual" (para 32). Upon this basis, Lord Hope said that:

"33. ... the allegations that the appellant makes are sufficiently serious for it to be necessary to have a closer look at the material in order to determine how systemic or widespread the problem now is."

 

This was not a task which, it was said, the United Kingdom Supreme Court was able to undertake. The reports of Dr Bogdani and Ms Vickers were out of date and there was further evidence available. Accordingly, the view was taken that:

"the proper course, therefore, is for the case to be returned to the Appeal Court (sic) so that it can be provided with up to date information and reach a properly informed decision as to whether or not the threshold test is satisfied. Its task will be greatly eased if ... the parties exchange and agree as much information as possible with a view to reducing to a minimum the need for any oral evidence."

 

The formal order dated 10 July 2013: recalled the dismissal of the extradition appeal in the interlocutor of 1 June 2012; "set aside" the finding of 2 February 2012 that the reports prepared by Dr Bogdani and Ms Vickers "ought not to be admitted"; and remitted the case to this court.

[12] At a procedural hearing on 16 August 2013, it was reported that the appellant intended to discuss with the respondent what reports could be agreed. Meantime the diet for hearing the appeal was fixed for February 2014. The appellant was granted interim liberation but was remanded in connection with an unrelated matter on 10 December 2013. His interim liberation was recalled on 16 January 2014.

 

Evidence
[13] The evidence of Dr Bogdani and Ms Vickers was not led, nor was there any reference to the content of their reports. The appellant had elected instead to obtain guidance from a quite different source, namely Dr Fabian Zhilla, and to lodge a total of some 60 reports or documents, from a variety of sources, dealing with the situation in Albania. A solicitor acting for the appellant had visited Albania in January 2014, but no-one interviewed had been prepared to testify in support of the appellant's contentions. At the outset of the proceedings, and in light of Lord Hope's Opinion that the court was to take into account "information" to be presented to it, apparently in agreed form, the court raised with the parties the question of which code of evidence was to be applied in the case; criminal (with its prohibition on hearsay) or civil. After all, there was no agreement about any "information" or the evidential value of any of the reports and other documents lodged. This was despite there being an occasional mention by the parties during the hearing of the possibility of producing a joint minute, which would agree at least that the reports and documents were what they bore to be. Meantime, the testimony of the single witnesses called respectively by the appellant and the respondent was heard under reservation of all issues of competency or relevancy.

 

Appellant - Dr Fabian Zhilla
[14] Dr Zhilla was aged 38. He is an academic. He has a law degree from Tirana University and a doctorate in criminology from King's College, University of London. This was awarded for his 2012 thesis: "Judicial Corruption and Organised Crime: Democratic Transformation and Prospects for Justice in the Western Balkans with case study Albania". His thesis was based, in part, on some 70 interviews with all levels of judge, advocates, prosecutors, NGO staff and journalists. Since 2009, Dr Zhilla has published a number of articles in the same general subject area. He is a full time lecturer at the Canadian Institute of Technology, Tirana. This is a relatively new, private but accredited institution which specialises in Business, Administration and Engineering courses delivered in English. Dr Zhilla is also a full time lecturer at the European University of Tirana. This is a slightly older but similar institution specialising in Law, Social Sciences and Economics. He is a part time visiting lecturer at a number of other institutions. He is a qualified advocate and carries out in-house work for a local bank.

[15] In his report dated 5 February 2014, Dr Zhilla describes what he understood to be the extent of corruption in the Albanian judicial system, based upon materials which he had ingathered for his thesis and following a further 4 interviews (2 judges, 1 advocate and 1 judicial inspector) conducted between August and December 2013. In his introduction, Dr Zhilla sets out his basic contention that judicial corruption is "deeply rooted in the justice system in Albania" and has become a permanent, socially acceptable phenomenon. He summarizes the position as follows:

"There is a prevalent perception in society that the judiciary is highly corrupt and that the only way to be 'successful' in the court is either via bribe, political connections, pressure by organised crime, and ex parte influence (ie friendship or blood relationship). Someone who does not use one of the above forms of access to the court is highly exposed to an unfair trial."

 

The origins of judicial corruption stem from the communist era and the primary cause was undue influence on judges by the political elite. The judicial system was part of the state as a whole and, in the context of an inquisitorial system, the judge was viewed as akin to a prosecutor. In the post communist era, there had developed between judges and politicians a "don't touch us and we won't touch you" attitude.

[16] The decision of the United Kingdom Supreme Court in the appellant's case had received some press coverage in Albania and, on the one hand, any retrial of the appellant could potentially be influenced by either politics or the media. On the other hand, in the appellant's particular case, it was more likely that the media focus would result in the three judges, who would retry the case, being more cautious and more likely to decide it purely on its merits. Given its high profile, this was even more likely. The judges would be aware of the involvement of the chief inspector of judges of the High Council of Justice (HCJ) (infra). The HCJ would send an inspector to observe the proceedings. The judges would also be conscious of the ongoing Puka corruption proceedings (infra).

[17] Corruption in criminal cases tended to involve an accused offering the judge a bribe, if the evidence were against him. This could be to secure a lesser conviction. In murder cases, there was a tendency for the court to look at the merits and, in the absence of any political, social or friendship ties, to decide the case on those merits. Where the evidence in a case was not strong, the judge might delay the decision or make things difficult for an accused, in order to secure a bribe. Nevertheless, as Dr Zhilla noted, one of his recent judicial interviewees had stated:

"I do not think there is any risk that an accused of murder [would] be penalised harsher by the Albanian courts. Usually undue influence is made to ensure any favouritism to the offender. In other words, in criminal matters it works this way: if [paid] favoured, if not paid, ... I do not think that they will give you more than you deserve...".

 

[18] As a generality, an earlier decision in absence would not influence the verdict on a retrial, because the judges would be different. There was a specific risk in Elbasan, where there was a group of judges who favoured the former chief judge and a group who favoured the existing one. If the decision had been made by a bench consisting of the former chief judge, that might influence the new judges because of "friendship influence". The allocation of the bench would be by lot. Dr Zhilla did not know whether the former or the new chief justice had been one of the original judges.

[19] After the downfall of communism in 1991, there had been a "lustration" (purification) of the judiciary. There was thereafter a pattern of removal by successive governments of judges or prosecutors thought to be sympathetic to opposition parties. In December 2013, the Minister of Justice had left a meeting of the HCJ, which was tasked with the appointment of judges, because of what he described as a lack of transparency. Earlier in the year, the new Prime Minister, who headed a new socialist coalition, had given an interview with the BBC stressing the need to fight corruption. This had been a theme adopted by all post communist governments, but it had not been acted upon. Although the

Prime Minister had been talking about corruption generally, in September 2013 the US Ambassador had highlighted judicial corruption in particular.

[20] Judicial independence remained a problem, with some of the older judges retaining a "totalitarian mentality". Some did not speak either English or Italian and were unable to learn new methodologies, which tended to be expressed in those languages and were taught in the new School of Magistrates. The older judges tended to be more senior and they could influence their junior colleagues. The more corrupt judges were in the higher courts. Those in the lower courts were new to the system and better trained. The longer they stayed in the system, the more likely they were to become corrupt.

[21] Any trends towards the development of judicial independence had been undermined by aspects of private influence, stemming from friendship or family ties and by the use of bribes or the exchange of favours. There was a culture of friendship in Albania. It was a very important institution. In the IDRA Corruption in Albania Perception and Experience Survey 2008, some 8% of those participating in the survey had "had contact" with the courts during the year. Almost 1 in 3 of those had said that they had paid a bribe.

[22] Another aspect of corruption related to professional friendships. There were only 3 public law schools in Albania and most judges came through the Law Faculty at Tirana University. The judges and prosecutors, who now all go through the School of Magistrates, mingled socially. Some were close friends. Several of the judges interviewed admitted that undue influence exerted by such a friendship was sometimes more significant than political pressure or financial corruption. The economic or political status of the parties was a driver for bias. It was difficult for an ordinary citizen to win a case against powerful individuals or companies. The latter could afford better lawyers. In criminal cases also, the judges favoured the prosecutors and, in the context of the inquisitorial system, some judges inadvertently took on the prosecutorial role.

[23] The giving of bribes, gifts and baksheesh was widespread in Albanian courts. As distinct from a bribe, the latter would not be asked for, but would be given to the judge by the winning party. Some judges did not regard that as corrupt, although they accepted that it was legally wrong. Judges who did not accept baksheesh were described by one of the interviewed judges as being in a third category of judge (ie apart from good or bad), namely "crazy".

[24] The perception of judges in society was not improving. There were some good signs in the fight against corruption, such as the removal of immunity from prosecution for the judiciary and other public officials in 2012 and an enhanced system for the evaluation of judges. However, the evaluations were very much out of date, with only that for 2005-06 now completed. No judge had been imprisoned for corruption and the only on-going prosecution was the Puka case.

[25] The Puka case illustrated the extent of judicial corruption. In November 2013, an investigative television programme (Fiks Fare) had broadcast a story about the arrest of a Mr Ndoka and his family on charges connected with a public protest. According to Mr Ndoka, he had contacted the staff of the chief judge in Puka and secured his own release from prison and that of family members by paying over to a member of the court staff the equivalent of €30,000. It was alleged that the money was to have been divided between the judge and the prosecutor. Earlier, in 2012, in an unrelated matter, the then deputy Prime Minister had been acquitted by the High Court on corruption charges. He had, with the change of government, become the chairman of the Parliament. The acquittal had been the subject of adverse comment from Freedom House.

[26] The legal framework, within which corruption and organised crime had been allowed to operate, had improved. There was now a National Strategy for Development and Integration (2008). Several key conventions, including the UN Convention against Corruption, had been ratified. Several institutions had been strengthened, including the High Inspectorate for Declaration and Audit of Assets (HIDAA). This body examined the assets of judges and their families on a yearly basis with a view to detecting any unexplained increases in wealth. There were six Joint Investigative Units (JIUs) established, independent of the HCJ judicial inspectorate, to fight economic crime and corruption. There were "hotlines" available on websites to enable members of the public to complain about judges. The installation of digital technology to record court hearings had been rolled out across the country in order to be able to assess the quality of judges' work. Lack of proper written reasons being given for decisions remained a problem. This was indicative of corruption.

[27] Albania had the lowest ratio of judges per capita in Europe. In order to deal with backlogs, many judges used their secretaries to write "simple" court decisions, which did not require lengthy reasoning. Corrupt judges left it to the successful party's advocate to write the court's decision. Some judges, especially those in smaller courts, employed private lawyers to help them prepare cases, if their time was limited.

[28] Infrastructure, especially in Elbasan, was a problem. In relation to the evaluation of the 16 judges at the court in Elbasan, the majority (5) had scored "very good", or (6) "good" with 1 described as "acceptable" in 2011. Many proceedings, although not murder trials, were held in chambers. The level of security was non-existent. There were general problems with minute taking, typing and filing in Albania. Although it would not affect the appellant's case, because the evidence had been gathered in England, Albanian trial procedure, notably the ability to ingather evidence and to adhere to procedural deadlines, remained deficient.

[29] The Ministry of Justice (MoJ) could initiate a complaint against a judge through the HCJ. Proceedings were in accordance with the Law on the Organisation of the Judicial Power (no 9877, 2008). According to the media, and although this was not an official statistic published by the HCJ, around 67 judges had received warnings for procedural irregularities in 2011-13. Some judges had been dismissed. The MoJ had conducted around 28 inspections of first instance and appellate judges in 2011-12. It had filed 18 disciplinary complaints against 14 judges with the HCJ. The HCJ had accepted the disciplinary measures recommended by the MoJ in respect of 6 judges, but had rejected 4 others. Disciplinary measures, recommended by the MoJ, against 2 judges had been vetoed by the HCJ. Two further requests from the MoJ in November 2013 had been challenged by the HCJ on procedural grounds.

[30] Despite the reforms, judicial corruption remained a concern. The US Ambassador's remarks (supra para [19]) had been based upon the findings of Transparency International, an international NGO headquartered in Germany, to the effect that:

"the judiciary is the least trusted of Albania's public institutions. Over 80% of Albanians view their judiciary as corrupt or extremely corrupt".

 

Albania was ranked the 110th= least corrupt nation out of 177 countries on Transparency International's Corruption Perception Index 2012. One of the judges, who had been interviewed recently, described the reforms as cosmetic. Those persons who were at the top of society's pyramid remained the problem. Although the immunity of judges had been removed, organised criminals, powerful businessmen, politicians' families and the media continued to operate with informal impunity. It was not the reforms which were the problem, but their implementation.

[31] The perception that judicial corruption was endemic came not only from the public but also from those within the system, including judges and prosecutors. In July 2012, the Chairman of the Association of Albanian Prosecutors had acknowledged the existence of corrupt employees within the justice system. He had said that there were prosecutors who merely pretended to investigate. He did say that the fight had to go on. The judicial inspector, who had been interviewed recently, said that a criminal case could be obstructed by prosecutorial corruption or mistakes, even if it was very difficult for the judge to give a corrupt decision when the evidence was straightforward and clear. Corrupt judges in criminal cases could "play around" with weak cases.

[32] Judicial corruption and the lack of reform was one of the reasons for the postponement of consideration of Albania's request for EU membership in December 2013. Albania was a member of the Council of Europe and recognised the right of individual citizens to petition the European Court of Human Rights. The Convention was part of Albanian law. The National Strategy (supra at para [26]) recognised (para 3.1) that the process of Albania's membership of the EU required concerted action across government institutions. Albania had entered into a Stabilisation and Association Agreement with the EU with a view to enabling gradual integration. This Agreement had created the necessary framework for strengthening democracy, the rule of law, human and minority rights and for the creation of a free market economy. There had been considerable EU support towards improving the justice system.

[33] Albania is a member state of GRECO (Group of States against Corruption). This involved it being monitored according to EU standards in terms of 2 conventions. The First Evaluation Round (2002) concluded:

"173. Corruption appears to be a widespread phenomenon in Albania, affecting most of its institutions. Even if there are signs of improvements, corruption remains one of the most difficult challenges of the Albanian authorities. The 'classical' corruption of public officials in tax administration, customs, procurement, health or the judiciary, are some of the main areas of concern. However, allegation of corruption is sometimes used as a tool in the political struggle for power."

 

There was a strong commitment to fight the problem and the first phase, of developing legislation, had been devised but required to be implemented. A series of recommendations had been made. A Compliance Report had been produced in 2004 and had concluded (para 55) that Albania had implemented, or dealt with in a satisfactory manner, half of the GRECO recommendations. These had included training of judges and improvement of their working conditions. Judicial salaries had been increased by 40% (para 37) and the HCJ had taken steps to standardise the "career management" of judges. In an Addendum to this report, GRECO stated (para 41) that "an impressive number of anti-corruption measures" had been introduced.

[34] The Second Evaluation Round (2005) had made a further series of recommendations (pp 23-24) and this had been followed by a Compliance Report which referred (para 57) to further important achievements. An Addendum recorded that 12 out of the 14 recommendations had been implemented or dealt with satisfactorily. The Third Evaluation Round (2009) had concluded (para 59) that the legal framework complied to a large extent with the requirements of the Criminal Law Convention on Corruption (ETS 173) although certain deficiencies in the international dimension were noticed. The terms of the Albanian Code, revised in 2004, provided (section 319CC) that the active corruption of judges (ie offering a bribe) was punishable by imprisonment of between 1 and 4 years and passive corruption (ie taking the bribe) by between 3 and 10 years. Dr Zhilla asked, rhetorically, why there was a specific provision dealing with the corruption of judges. A Compliance Report (2011) had concluded that Albania had satisfactorily implemented 7 of the 12 recommendations and a Second Compliance Report (2013) recorded that it had complied with them all.

[35] Dr Zhilla was directed (as would the respondent's witness in due course) to look at certain passages from specific documents, some of which he had never seen before, and to confirm what was written and to state whether he agreed with what was said. Quantum valeat, he generally did agree. Where he did not, this is noted. The first document was the Albanian Council of Ministers' National Strategy for Development and Integration 2007-2013 (2008) (see supra at paras [26] and [32]). On the issue of justice, it was noted (p 27) that, during the period of transition (from communism to democracy):

"Even though justice was proclaimed independent from politics, political interventions have been numerous. The justice system is the least controlled and is considered as the sector with the highest level of corruption ...".

 

[36] The Corruption in Albania: Report of Comparisons between the 2005 Judges & National Surveys, by Seligson et al (2006), revealed that some 70.6% of judges and 87.1% of the public regarded corruption amongst public officials as being "quite common" and indeed closer to "somewhat widespread".

[37] A report from the Council of Europe's Commissioner for Human Rights on his Visit to Albania (2007) commented (para 3.1; 24-27) adversely on: the ineffective implementation of what were well intentioned reforms; the prevalence of complaints of political interference; the existence of widespread corruption, and public perception of corruption, in the judiciary; and the need for Albania to take more effective and efficient measures to address that corruption. There had been 160 claims to the Constitutional Court in 2006, of which 52 had concerned alleged fair trial right violations, mostly concerned with the right to a lawyer and access to justice. In 11 cases, there had been a ruling in favour of the applicants (ibid para 28).

[38] In a paper published by the Romanian Academic Society entitled Civil Society Against Corruption, Albania (2010), a commentator from the Hertie School of Governance, Berlin, had reviewed a number of opinion polls and reported upon interviews which she had conducted with officials, NGO staff and journalists. The first systematic studies of the spread of corruption in Albania had been conducted in 1997 following the collapse of certain financial pyramid schemes. These studies had found corruption to be endemic and to penetrate public life at all levels. There was reference to the findings in other papers, notably the IDRA report (supra), which had stated that public trust in the judiciary was very low and that the majority of judges had agreed that the courts were susceptible to corruption. The effectiveness of the HIDAA was criticised in the polls as being one of the most corrupt institutions. The polls had revealed that Albanians believe that customs and tax officials are among the most corrupt, followed by doctors and politicians.

[39] Transparency International's Albania: An Overview of Corruption and Anti-Corruption (2011) quoted its Corruption Perceptions Index as suggesting that corruption was "rampant" in the Albanian public sector, most notably in health. The judiciary was ranked as one of the most corrupt institutions according to its own surveys (2007) and those of IDRA (2010). Apart from political interference, bribery of judges and court staff was perceived to be widespread. Only 28% of companies believed the judiciary to be fair and impartial.

[40] The United Kingdom Home Office Border Agency's Country of Origin Information Report on Albania (2012) quoted (para 12.01) the US State Department 2010 Human Rights Report: Albania (2011) as follows:

"The constitution provides for an independent judiciary; however, political pressure, intimidation, widespread corruption, and limited resources sometimes prevented the judiciary from functioning independently and efficiently."

 

[41] In his Albania 2012 Progress Report: Communication from the Commission to the European Parliament and Council, the EU Commissioner had concluded that there had been only modest progress in completing the legal framework for judicial reform and there was a need to accelerate this. There was mention of the digital recording programme and the requirement to improve decision drafting. There was in place a Memorandum of Understanding designed to co-ordinate inspections of the judiciary, which could be initiated by both the MoJ and the HCJ. The School of Magistrates was providing good training but remained insufficiently funded. Hearings continued to be held in chambers rather than public courtrooms because of lack of infrastructure.

[42] There was reference to the Gerdec case, which had involved an explosion in 2008 killing 26 people. Five of the 29 accused had received sentences ranging between 6 and 18 years, but the remainder had been given lesser sentences or acquitted. The Constitutional Court had reversed the High Court's decision to cease proceedings against a former Defence Minister in connection with the case. This was thought to be an instance of the judiciary refusing to condemn politicians. The most recent GRECO report was noted. However, there was no track record of convictions for corruption. The report did record (p 12) that "Good progress has been made in combating corruption" as a result of the removal of judges' immunity.

[43] In the follow up European Commission Staff Working Document: Albania 2013 Progress Report, the significantly limited progress, especially in the fight against corruption in the judiciary, was commented upon. None the less, "some progress" was recorded (para 4.23). It was observed (p 40) that implementation of the anti-corruption strategy had progressed, with the completion of all the GRECO third round recommendations. The number of corruption cases investigated by the JIUs had increased in 2012 by 28%, even if "Corruption in the judiciary remains a particularly serious problem".

[44] In the EU Commission's Communication to the EU Parliament in October 2013, it was said (para 14) that in October 2012 the Commission had recommended that Albania be granted the status of candidate country, subject to the completion of key measures in the areas of judicial and public administration reform. Albania had adopted the key judicial reform measures. In the fight against corruption, it had taken initial steps and the number of convictions had increased. The Commission again recommended that Albania be granted candidate country status on the understanding that it continued to take action against organised crime and corruption.

[45] The most up to date, thorough and clear exposition of the situation was contained in the report from the Council of Europe Commissioner for Human Rights dated January 2014. The summary of major issues pertaining to the administration of justice commenced by expressing the Commissioner's concerns about the:

"reportedly high level of corruption in the judiciary which seriously impedes the proper functioning of the justice system and undermines public trust in justice and the rule of law in Albania. While welcoming the 2012 amendment of the Albanian constitution that limited the immunity of judges, the Commissioner urges the authorities to step up their efforts to ensure that all cases of corruption are effectively investigated and prosecuted. Judges' salaries also need to be commensurate with the significance of their service and responsibilities. The Commissioner is concerned at the reported lack of transparent and merit-based appointment and evaluation of judges."

 

[46] Specifically in relation to corruption in the judiciary, the Commissioner noted (para 18) with concern that a perception of high level of corruption in the justice system seriously impeded its proper functioning and undermined public trust in justice and the rule of law. He continued:

"19. Corruption prevention within the judiciary has not yet been subject to assessment by the Council of Europe's Group of States against Corruption (GRECO). This will be done in the context of GRECO's forthcoming Fourth Round Evaluation Report ...

20. In its progress report on Albania, the European Commission ... noted that corruption in the judiciary remains a particularly serious problem ...

21. The high level of corruption within the judiciary was also noted by the UN Human Rights Committee ... in its 2013 Concluding Observations on Albania. UN HRC called on the judges to combat corruption rigorously ... ."

 

Against that background, the ending of immunity was welcomed, although the long term impact of that measure had yet to be assessed.

[47] The report observes (para 25-26) that an average annual starting and final judicial salary in Albania is between €7,350 to €14,700 (1.9 times national average) as against a Council of Europe median of €32,704 to €57,909 (2.1). Recent increases of 7% for appellate judges and 20% for first instance judges had not changed the comparison significantly. The salary levels were not adequate, especially as some judges had extensive travelling expenses. Judges required to keep up certain social standards and, when compared to a €30,000 bribe, Dr Zhilla considered that these salaries would not achieve this. The evaluation of judges had improved. There were now 346 judges in Albania, 276 of whom had been subject to the 2005-06 evaluation process. 193 of these had been evaluated but none had been assessed as "incapable", although 3 were only "acceptable". Even allowing for the need for appeal processes to conclude, the Commissioner was concerned about the time taken for evaluation. The report made observations on the training of judges and prosecutors in the School of Magistrates.

[48] The conclusions again welcomed the efforts being made by Albania to reform the justice sector by adopting a comprehensive Justice Reform Strategy (2011) and accompanying action plan. However, the Commissioner remained concerned by the lack of effectiveness, so far, of the fight against corruption, notably in the judiciary.

[49] Dr Zhilla had not seen the response by Albania to the Commissioner's report. This included a statement that the MoJ had drafted an anti-corruption package to reflect the constitutional amendments on the immunity of judges. Since October 2013, the MoJ had requested the HCJ to initiate disciplinary procedures against 5 judges, 4 of the complaints having followed HCJ inspections and only 1 being the result of a MoJ inspection. In one instance (presumably the Puka case), the HCJ had suspended a judge suspected of being involved in corrupt acts. A new MoJ "Stop corruption in justice" portal had been set up and sundry complaints were being investigated by the General Prosecutor's Office and the HIDAA. Dr Zhilla said that it was difficult for him to comment upon these matters as the HCJ did not publish details of their decisions.

[50] Dr Zhilla had not seen the British Embassy's Centre for Transparency and Free Information Survey: Judicial Promotion and the Points Based System (2012). This contained a poll that said that 25% of judges either regarded the judiciary as corrupt or had no opinion. 58% said that corruption was only a perception and 18% that the judiciary were not corrupt. 30% of judges said that they had been offered payment in return for showing favouritism in judicial proceedings. In answering a question about the sources of external pressure, 5% had said these had been from Government, 5% Parliament, 4% officials in the president's office, 31% advocates, 16% local government bodies and 40% "other individuals".

[51] Finally, Dr Zhilla maintained that corruption was endemic and in all levels of court. It was still a big issue.

 

Respondent - Marsida Xhaferllari
[52] Ms Xhaferllari was aged 38. She is the head of the HCJ judicial inspectorate. She graduated in law in 1997 and qualified as a judge, having attended the School of Magistrates in 2000. She spent 8 years as a judge and was thereafter seconded to the MoJ. She spent a year there as an adviser to the Minister. After 3 years she became Director General of Justice Affairs, with responsibility within the MoJ's inspectorate for monitoring the judiciary, prosecutors, notaries and bailiffs. After 2 years in that post she became the Chief Inspector in the HCJ in January 2013.

[53] As Chief Inspector, Ms Xhaferllari's role is defined by the Law on the organisation and functioning of the High Council of Justice (no 8811, 2001). The HCJ itself has 15 members (art 3). There are 9 judges, who are elected by the National Judicial Conference, the President of Albania, the Minister of Justice, the chief judge (chairman) of the High Court and 3 members elected by the Parliament.

[54] Inspectors are generally serving judges, or lawyers (jurists) who have been judges (art 14). The functions of the inspectorate (art 16) include the examination of complaints about the conduct of judges made by members of the public and addressed to the HCJ. The HCJ authorises disciplinary proceedings against judges which are proposed by the MoJ. The inspectorate collects and processes the data necessary for the evaluation of the performance of judges in conformity with criteria laid down in regulations (art 16(1)(dh)). Evaluations assess the judge's abilities: to use judicial knowledge, to direct a judicial process, to create and administer a process; and to undergo training. In addition an evaluation will assess a judge's effectiveness, his implementation of legal knowledge and his relations with other institutions. Failure to obtain a good evaluation will prevent a judge being promoted. If he or she is categorised as "incapable", that can give grounds for dismissal. If he or she is classified as "acceptable", then he or she may be put on probation for a period (Law on the organisation of the judicial power (no 9877, 2008) art 13).

[55] There are specific regulations about the way in which complaints are dealt with. They must not be anonymous or cover matters competently dealt with by way of appeal. There is a time limit. The inspectorate has a website upon which complaints can be logged. Investigation of a complaint is usually done on paper, but may include an interview with the complainer. If it is thought that a breach of the rules may have occurred, disciplinary proceedings may take place. If criminal conduct is alleged, the papers have to be submitted to the office of the Prosecutor General. The MoJ has its own inspectorate and it too can carry out inspections. There is a specific law dealing with this matter (Law on the organisation and functioning of the Ministry of Justice (no 8678, 2001) art 6) and a Memorandum of Understanding is in place whereby, if the HCJ is proceeding with a complaint, it will give notice to the MoJ and vice versa.

[56] Albania had been helped greatly by outside agencies, including the Council of Europe, of which it was a member, and the EU. There had been several "missions" set up in Albania, specifically the Slynn Foundation which had assisted in the organisation of the Supreme Court and had also been involved with the School of Magistrates. The School was governed by law (no 9414, 2005) and was designed to provide professional, post-graduate training of both judges and prosecutors. There was a programme of continuous training for existing judges, including courses on ethics and corruption. There were three missions or mandates designed to strengthen and improve Albania's performance in relation to transparency and to assist with budgeting.

[57] When Ms Xhaferllari had taken over as Chief Inspector, there had been a problem with the efficiency of the HCJ's evaluation programme. The work was somewhat behind. When she had started in January 2013, only 33 judges had been evaluated. The first round (2005/2006) was now complete with 300 judges evaluated. The second round, involving the years 2008/2009, was progressing. The increased efficiency was not all down to Ms Xhaferllari's work, but to a team effort.

[58] Ms Xhaferllari was not aware of any division of loyalties in the Elbasan court. The physical infrastructure there was not good, but there were plans to build a new court. It was a priority to ensure that criminal trials were conducted in court rooms.

[59] There had been thematic inspections over recent years. One had concerned how domestic violence was dealt with. A second one related to the allotment of cases to particular judges. A third theme had been on conflicts of interest. For example, judges were forbidden to engage in other activities, with the exception of teaching. However, there were private universities who paid judges significant sums. This interfered with the efficiency of the court.

[60] From January to November 2013 there had been 755 complaints looked at by the Inspectorate. 385 had been clearly unfounded, but 201 were investigated further. Out of these, 129 breaches of rules had been identified. In 15 of those, the Inspectorate had recommended disciplinary action. In 39, warnings had been issued and in 75 the matter was logged on the evaluation of the judge. That type of action might be thought appropriate where there had been non-intentional delay of a process. 46 complaints were still being examined. The data on disciplinary proceedings against judges for 2012 showed that the MoJ had presented requests for disciplinary proceedings against 16 judges (15 first instance and 1 appellate) following inspections by themselves or the HCJ. These included a variety of matters including "serious violations" of time limits for the issue of judgments.

[61] The MoJ had exclusive jurisdiction to institute disciplinary proceedings. A specific procedure was followed. An inspection would be carried out and the judge would be notified of his rights. Ultimately he could request an interview and could appear at a plenary session of the HCJ. There were previously many rejections of requests for disciplinary action by the MoJ in the HCJ. The problem was that 9 out of 15 members of the HCJ were judges and they did have a feeling that one day it could be them too. Last year the HCJ had dismissed one judge.

[62] Criminal trials in Albania could be conducted by either 1 judge or 3 judges, depending on the importance of the case. If there was a prospect of a sentence of more than 7 years, then a panel of 3 was required (Law no 7905, 1995 Criminal Procedure Code art 13). There were specific provisions which required a judge to decline jurisdiction if he had a personal interest in the proceedings (art 17). A party could also ask the judge to decline to preside (art 18) and this matter would be determined by another judge, from whom there was an appeal (art 21). All criminal proceedings were recorded, either electronically or in handwriting. Some 24 courts now had digital facilities, including Elbasan.

[63] Albania was eager to remain a candidate for EU membership. Several reports had said that there was a perception of corruption in judicial proceedings, which lowered public confidence in the judiciary. Ms Xhaferllari, however, stressed the word "perception". The communication from the EU Commission to the Parliament and Council (2013) had stated that the Commission recommended that Albania should continue to have the status of a candidate country on the understanding that it continued to take action in the fight against organised crime and corruption. Ms Xhaferllari did not agree with the National Strategy's comment (p 27) that the justice system was the sector with the highest level of corruption. The problem was that the judge was the final person to speak in the process. The judiciary did not have the capacity to defend itself thereafter.

[64] Measures had been taken to address the problem of judicial corruption, including the drafting of legislation. The Justice Reform Strategy (2011) had outlined certain priorities, such as improving judges' career structures, developing infrastructure, including judges' working conditions, promoting transparency in court proceedings, publishing all decisions and improving procedural codes. The process of evaluation was linked to the promotion of judges and provided an opportunity to fight corruption. If a judge were promoted on his merits, he would be less concerned about external pressures. The School of Magistrates taught judicial ethics. The first generation of judges had attended the course in the year 2000. The School taught 10 judges a year, so now there were about 140 judges who had undertaken the course.

[65] In relation to IDRA's 2008 Survey on Corruption in Albania, Perception and Experience, there was an obligation on persons knowing about a criminal offence to report it to the prosecutor. There was a low reporting rate in relation to corruption. Corruption was difficult to investigate when it involved both parties. It was a challenge, but the Inspectorate was working hard on that, even if there was a problem with peoples' perception. All judges and public officials required to make an annual public declaration of their assets and those of their family. The HIDAA made sporadic (4% per annum) audits. As a result, 2 judges had been the subject of investigation.

[66] The Inspectorate had conducted a rapid investigation after the television programme Fiks Fare (supra at para [25]). The Prosecutor General had ordered an immediate inquiry. The judge involved was the acting head of the court and he was suspended. The prosecutor had asked for him to be remanded. This required the consent of the HCJ and this was given. However, the judge appealed and the appeal court substituted house arrest. Following the investigation, violations of procedures were discovered and disciplinary measures were recommended.

[67] In the Albanian criminal justice system some 90 to 95% of cases brought before the courts result in a conviction. This was because the evidence is gathered in advance and, if the prosecutor considers that the charge is not made out, he will dismiss the case himself. If he does have evidence of guilt, he will submit the case to the court. This was a theoretical statistic, but, if the investigative phase had resulted in the prosecutor deciding to submit the case to the court, the expectation was that the prosecution would be successful. That was not always so because the case might be badly prosecuted, well defended or the accused might be found to be innocent. The accused could request that investigations be carried out. He would be given all the documents at the end of the investigative phase. The presumption of innocence was a fundamental of the constitution and in court procedure. It was linked to subsidiary principles such as the right to be represented, to lead evidence, to be present and to appeal. An accused could choose his own lawyer personally or via his family. If he had no money, a lawyer would be assigned by the court and paid for by the state. His lawyer would be given time to prepare, to request that evidence be collected and to challenge evidence led by the prosecutor.

[68] The Commissioner for Human Rights of the Council of Europe had visited Albania in September 2013, and this had led to his report of January 2014. The long standing political polarisation was said (para 4) to have had a negative effect on all aspects of political and social life and had led to a marginalisation of issues concerning the rule of law. The Commissioner had commented (para 14) that:

"Among the issues that remain to be effectively tackled is the fight against corruption; efficiency of the judiciary, including the problem of backlogs and excessive length of proceedings; strengthening of independence and impartiality of the judiciary; and establishing an effective legal aid system that would make access to justice possible for everyone."

 

[69] The Commissioner had noticed (para 18) that, according to the 2012 Transparency International Corruption Perception Index, Albania ranked amongst the 10 most corrupt countries in Europe and that the problem of a high level of corruption in the judiciary had been a feature of the Justice Reform Strategy (2011). He had been concerned about the perception of corruption seriously impeding the proper functioning of the justice system and its undermining effect on public trust in justice and the rule of law. Albania had a problem in relation to the perception of corruption. But this was a Corruption Perception Index, not a Corruption Index. It was a pity that Albanian citizens did not trust the judiciary and it was conceivable that the perception might reflect the actual level of corruption (cf para [72] infra), but Ms Xhaferllari was unable to proffer any opinion on the actual level of corruption within the system.

[70] One difficulty was the level of writing skills. One of the purposes of the evaluation process was to improve the quality of reasoning. The appellate courts had adopted a test involving 5 elements in relation to the adequacy of judicial reasoning. The level of professionalism amongst judges was improving. The old judges were more laconic in their writing styles, even if they were straight to the point. The younger generation was more capable in this area.

[71] The Commissioner had noted (para 19) that the assessment by GRECO was not yet available, although it was now in draft form. The GRECO Fourth Round Evaluation Report would focus on the judiciary and Parliament. The UN Human Rights Committee's view, in its Concluding Observations on Albania (2013), had been cited (para 21); the Committee having called upon Albania "to combat corruption rigorously, including instituting procedures for vetting corrupt judges by an independent body and by taking appropriate sanctions against them". The Committee had thought that one of the impediments to tackling corruption was the existence of immunity for public officials, including members of the judiciary. However, this had now been removed. The long term effect of the removal had yet to be assessed (para 22). The Commissioner had stated (para 24) that the Council of Europe had completed the implementation of its project against corruption in Albania, aimed at assisting the Albanian authorities in their anti-corruption strategy. He had noted (para 29) that there had been criticisms of the evaluation process as lacking objective criteria. Ms Xhaferllari considered that the evaluation system had now improved, with an overall trend to give increased weight to an applicant's merits and other objective criteria. Nevertheless, the Commissioner remained seriously concerned (para 32) about the efficient and effective nature of the evaluation process.

[72] As was said in Transparency International's Corruptions Perception Index 2013: "Corruption is shadowy and secretive by nature". This did not only apply to the situation in Albania. It was difficult to get evidence from a party who had been adversely affected by corruption. Judicial corruption was a problem which had existed for many years. It had been a general topic of discussion during the course of successive political campaigns; not just in connection with the judiciary. The general perception did not coincide with the actual level of corruption. Perception followed publicity on recent events. Accordingly, after the Puka revelations, even Ms Xhaferllari's mother thought that every judge was corrupt. The truth was something different.

[73] Successive governments had been committed to do something about corruption. Its existence had been one of the main drivers for the reform of the judiciary. It had attracted media attention, which had focussed only on bad examples of judicial behaviour. The number of people actually experiencing corruption was much lower than the perception. People had a tendency to dramatize. If a litigant did not win a case, or it was delayed, then the tendency was for the litigant to say that the judge was corrupt and to tell all his friends about the corruption, even in the absence of any supporting evidence. The perception in Albania had been shaped by discussions at high political levels, including the speeches of the US Ambassador and the new Minister of Justice (supra para [19]). From what they had said, ordinary Albanians would think that corruption was widespread. Certain international bodies were saying there was such corruption, including the British authorities (Border Agency Country of Origin Report 2012 (supra)).

[74] Perhaps reflecting Lord Hope's observations on the inevitable existence of fire where there was smoke, Ms Xhaferllari said that, where there is rumour, there may be something, but she did not have any evidence about what it was.

[75] The National Strategy of 2008 (supra at paras [26] and [32]) had expressed the Government's view in 2006, after the 2005 elections. The new Government had wanted tangible results in the fight against organised crime and corruption, including that within the judiciary. There had been a report from the Council of Europe Human Rights Commissioner in the same year. Albania was a fast developing country. At one point it was the most isolated nation in Europe. It was now subject to international pressures and was eager to react positively to those pressures. The development of the National Strategy recognised the problem of corruption in the judiciary. The Commissioner's report (para 25) reflected this in its reference to the politicized climate in which the judiciary was operating. The Commissioner described hearing complaints about political pressure. He had been correct in describing the occurrence of delay as creating opportunities for corrupt agreements.

[76] Transparency International's Albania: overview of corruption and anti-corruption (2011) summarized the public perception of corruption as being at a very high level. It had also said (p 6) that:

"Almost three-quarters of citizens that have dealt with courts declared that the courts have treated them either 'very well' or 'well' which represents a notable improvement in comparison with previous years."

 

This view coincided with the image of the judiciary in Albania. The abolition of immunity and the other measures, which had been taken to improve the status of the judges and the court infrastructure, had altered the position. The situation had, therefore, changed; notably after the lifting of the immunity of judges in September 2012.

[77] The IDRA Corruption in Albania Perception and Experience Survey 2009 had stated (p 23) that the general public still reported that factors influencing the outcome of trials were more related to corruption than justice. This was not a surprise as the survey was of the general public and not court users. Talk of political corruption was widespread and this was the public perception. The survey had found (p 24) that "Overall, 82% of judges agree with the general statement that judges in Albania are impartial in conducting trials". "When asked whether corruption in the Albanian court system is a serious problem, only 27.3% of the judges responded affirmatively".

[78] The paper by Seligson et al: A Survey of Judges in Albania (2005) had contained a graph with the "Mean Perception of Corruption" derived from a sample of judges. This suggested that judges thought that the President, the military and religious leaders were the least corrupt amongst some 19 institutions, followed by judges and prosecutors. The 3 most corrupt were customs officials, tax officials and medical authorities. The Centre for Transparency and Free Information (the British Embassy) 2012 survey on Judicial Promotion and the Points-Based System had resulted (13^th page) in 25% of the judiciary either stating that the judiciary was corrupt or that they had no opinion. 58% had said that corruption was only a perception and only 18% had said that the judiciary was not corrupt (ie a total of 101%). This was a matter on which there had been a symposium and it had been ascertained that the judges who had responded were referring to others and not themselves. The survey had also ascertained that 30% of judges had said that they had been offered payment in return for "changing the trial judgment in favour of one party", whilst 60% said that they had had no such offers. Apparently 9 out of the 30 judges who had said that the system was not corrupt had been offered a payment. All of this demonstrated that members of the public thought that the system was corrupt and a number of the judges thought so too.

[79] Ms Xhaferllari had not herself been approached with a bribe, although there had been an occasion when she had thought something odd was going on in relation to a lawyer not appearing at a particular diet, which she thought might have been some form of test. She did not agree with Dr Zhilla that there was a culture of corruption in Albania. If there had been, there would have been no protests about it. She was not saying that corruption did not exist, only that it was not the culture. Many Albanians did not believe in engaging in corrupt behaviour and fought against it. They did not regard it as normal behaviour.

[80] The communication from the EU Commissioner to the Parliament in 2012 was correct in its reference (p 12) to "good progress being made in combating corruption within the judiciary through the adoption of constitutional amendments limiting the immunity of judges". It had also identified (p 13) the key risk factors for corruption in the judiciary, namely: poor working conditions, a lack of adequate safety arrangements, generally low remuneration and an opaque appointment system. Effective implementation of the code of ethics for judges was a challenge. "Court management remained poor due to a lack of human and financial resources. The annual budget for the judiciary has barely increased. In 2012 it amounts to €69.6 million, which represents 0.71% of the GDP." "Limited resources also contribute to the heavy workload in the courts...". The communication had said (p 15) that the JIUs "continued to be good instruments for investigating and prosecuting corruption cases".

[81] The Commissioner had said (p 15) that:

"The overall planning and implementation of anti-corruption measures in the justice system remains insufficient. There is not yet a track record of disciplinary measures against judges or sound auditing of judges' assets. Corruption in the judiciary remains a particularly serious problem as the judiciary should be one of the key institutions in the fight against corruption".

 

Ms Xhaferllari took exception to the contention that the planning and implementation was insufficient. Anti-corruption measures were in place. She did not have a view on the auditing issue, but accepted that corruption in the judiciary was a particularly serious problem.

[82] The Commission Staff Working Document: Albania 2013 Progress Report referred (p 38) to the School of Magistrates facing problems because of "scarce budgetary allocations". This was a reference to the state budget alone. The School had also received grants from international and local donors. The Document stated that the publication of court rulings was still "not fully ensured", but this was partly because of data protection difficulties. It stated that "The fight against corruption in the judiciary has made limited progress", but Ms Xhaferllari considered that there had been progress. It continued that "Concerns about corruption in the judicial system remain" and this was accepted as accurate. The Document said that:

"The code of ethics was cited in some disciplinary proceedings against judges, but its implementation remains to be fully ensured. The impact of the online procedure allowing citizens to lodge complaints against the judges and court proceedings is still to be assessed. There was no progress on improving the drafting of court decisions, in particular as far as their reasoning is concerned. Further, court decisions are generally delivered without their reasoning, which in most cases is only issued after a significant delay."

 

Ms Xhaferllari considered that there had been improvements in both reasoning and in reducing delays. There had been delays in Elbasan and elsewhere and this had resulted in the dismissal of judges. The Document had made reference to a lack of accountability in the General Prosecutor's Office. It had criticised (p 41) the lack of a track record of disciplinary proceedings against judges, but one had started.

[83] Ms Xhaferllari did not agree with Dr Zhilla's introduction to the effect that someone who did not use a corrupt method would be exposed to an unfair trial. There were many areas where justice was done without any form of interference of this nature. She did not agree that someone without political, financial or family input would be at risk of not receiving justice. She did agree that judicial corruption had been a persistent concern throughout the transition from communism to democracy, but not that the judiciary remained "vulnerable" to undue influence. She rejected Dr Zhilla's statement that, without influence, it was difficult to win a case nor was she aware that some judges did not consider baksheesh to be a form of corruption.

[84] The comments of the Prime Minister in the BBC interview (supra at para [19]) were to be expected. He had just been elected and needed to answer the people's demand that something had to be done about corruption. Similar considerations applied to the Minister of Justice's comments in December 2013 (supra). It was a political statement.

[85] There were certain technical errors in Dr Zhilla's report. There were 14 judges in Elbasan (not 16). Five had scored "very good" and 4 "good". Two were "acceptable" and 3 had not been evaluated. One had been suspended following a road traffic incident, 1 had been suspended in relation to criminal proceedings and 1 had not been a judge at the time being reviewed. Elbasan did have its problems in terms of physical infrastructure and case load. However, there was no report of secretaries writing judgments or the judges employing private lawyers to carry out work. There were verification procedures to ensure that a judge wrote his own judgments. His writing skills were evaluated according to 5 criteria: structure; grammar; addressing the issues; appellate comment; and appropriateness of language.

[86] Ms Xhaferllari did not agree with Dr Zhilla's description of the reforms as limited in effect. They had only taken place recently, but Albania was moving forward very fast. She did agree that there were five key priorities standing between Albania and successful candidature for the EU: corruption, organised crime, judiciary, administrative reform and human rights.

[87] It was accepted that a state appointed lawyer might not be of the same quality as one appointed privately. That was the same in the United Kingdom. However, the advocate selected would be competent. He would be chosen from a list approved by the local law faculty; even if some of the busier lawyers elected not to be on the list. The reference from Dr Zhilla to the three categories of judge as good, bad and crazy was not familiar to Ms Xhaferllari, but it reflected a saying from an Albanian writer in the 1930s that "now that corruption was prohibited, people could only give presents".

[88] Ultimately, Ms Xhaferllari explained that she was unable to say what the extent of corruption might be. It may affect only 1 judge, 10 or 100. She did not consider that it was endemic, although it was perceived to be. She did not know what materials a number of the international reports before the court had been based upon, but assumed it to be the legislation, interviews and other documents. They had all been clear that Albania must deal with corruption and further efforts were needed. However, her colleagues were fed up with being labelled corrupt.

 

Submissions
Appellant
[89] The principal submission for the appellant was that everything which Dr Zhilla had spoken to, or which was contained in his report, ought to be taken into account by the court. As a skilled witness it was his role to provide a basis for his opinion and this could include material outwith his personal knowledge. The approach in England had been to adopt a less restrictive approach to evidence than might be taken at a criminal trial, although it was recognised that appeals in England appear to be dealt with by the civil courts (see Plotkovski v Poland [2012] EWHC 375 (Admin), Collins J at paras 4, 6 and 7). There did not appear to have been any form of principled approach taken in England, but a degree of informality seemed permissible. It had been said that the issues could be dealt with "... on the best material which can be produced" (Bogdani v Albania [2008] Ex LR 284, Pill LJ, quoting Latham LJ, at paras 10-11 and 45). In Brown v Rwanda [2009] Ex LR 197 much had depended upon the content of a Human Rights Watch report, described as "a formidable dossier" (para 91) and upon evidence from 3 experts based on secondary sources (para 119). Although it was a requirement of the 2003 Act that proceedings were to take the form of a summary trial (s 77), there was nothing in the Act that demonstrated that parties were tied to any particular evidential rules. All that the appellant required to do, by whatever means, was to demonstrate that he would risk suffering a flagrant denial of his right to a fair trial in the event of his return to Albania (EM (Lebanon) v Secretary of State for the Home Department [2009] AC 1198, Lord Bingham at paras 34 and 35).

[90] On the question of risk, what was required was no more than a foreseeable possibility and not a probability (Cullen v North Lanarkshire Council 1998 SC 451, Lord Sutherland, delivering the Opinion of the Court, at 455; McGhee v Strathclyde Fire Brigade 2002 SLT 680, Lord Hamilton at para [11]; Kennedy v Chivas Brothers 2013 SLT 981, Lord Drummond Young, delivering the Opinion of the Court, at para [31]; Butt v Secretary of State for the Home Department 2005 SLT 865, Lord Glennie at para [9] following Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271, Sedley LJ at 477-479). The proper approach was, as Lord Glennie had said, to recognise that the appellant did not need to establish any particular facts on a balance of probabilities, but simply to demonstrate that there was a real risk. This required evaluation rather than speculation.

[91] An expert witness versed in a particular area was entitled to give evidence about the received wisdom in his or her particular field. Such evidence was not to be excluded on the basis that it was hearsay (White v HM Advocate 1986 SCCR 224, LJC (Ross) at 226; Wilson v HM Advocate 1988 SCCR 384, LJG (Emslie) at 385; Siddique v HM Advocate 2010 JC 110; and McTear v Imperial Tobacco 2005 2 SC 1, Lord Nimmo Smith at paras 5.17 and 9.8). It was legitimate to look at the subject-matter of the dispute and to bear in mind the difficulty of establishing the true facts in relation to the existence of judicial corruption. Although Ms Xhaferllari was to be regarded as a "new broom-sweeping clean", and was clearly doing what she had been appointed to do, she had been slow in her evidence to admit the existence of judicial corruption, despite the recent report from the Council of Europe Commissioner stating that it remained a problem. There was, in addition, an actual recent case of judicial corruption (Puka).

[92] No doubt there could be smoke without fire, but it would appear that corruption is a longstanding problem, persistent, pervasive and perhaps a legacy of the communist era. In the last few years serious steps had been taken, but there had been an element of "showboating" in relation to the efforts made. The evidence did not just disclose smoke. The surveys reported experiences of judges being offered bribes. This type of corruption involved two people, both of whom had an incentive to keep it a secret. Even Ms Xhaferllari felt that there had been a possible incident of it occurring in her case.

[93] Although Dr Zhilla's thesis had not been produced, there was agreement on a significant amount of the international material about the situation. Dr Zhilla had acknowledged the progress which had been made and had, in a balanced way, said that the appellant would receive a fair trial given the amount of publicity this case had had. Even the reported division between the judges in Elbasan could, according to Dr Zhilla, work in his favour. If there was a real risk of a flagrant denial of the appellant's Convention rights, that had as an inevitable consequence that the appeal must succeed. The fact that that could create a safe haven in the United Kingdom for Albanian suspects and convicts, did not matter. The heavens simply required to fall (ie ruat caelum, fiat justitia; Lord Hope, SASO Annual Conference, 19 November 2011).

[94] Particular focus should be directed towards the National Strategy (2008), which stated that the justice system was the least controlled of the public sectors, with the highest level of corruption. The Border Agency Country of Origin Information Report (2012) had stated that political pressure, intimidation, widespread corruption and limited resources sometimes prevented the judiciary from functioning independently and efficiently. Other examples of similar reports were that by the Council of Europe's Commissioner for Human Rights on his visit to Albania (2007); the report of the Civil Society Against Corruption (2010); Transparency International's Albania: Overview of Corruption and Anti-Corruption (2011); the EU Commission Communication to the European Parliament and Council (2012); and the Communication from the Commission, Albania (2013) Progress Report.

[95] Resources were clearly an issue, including remuneration of the judiciary and the absence of adequate safety arrangements. Aspects of corruption were engrained in the Albanian way of life, perhaps a legacy of this having been the only way in the communist era of achieving access to key services, such as healthcare and justice. The perceptions of corruption were important because they increased the risk of corruption. The public would think that it was necessary to offer a bribe for services and poorly paid public officials, including judges, would continue to accept such offers. The 2005 IDRA Corruption in Albania Survey was particularly remarkable. The British Embassy Survey reported similar statistics.

[96] Regardless of effort and improvement, a judicial system was either corrupt or it was not. Systems which are not corrupt may of course suffer from individual instances of corruption. These can occur without any necessary implications for the system as a whole. On the other hand, a system may suffer from endemic corruption. Albania was ranked 116^th out of 176 countries in Transparency International's Corruption Perception Index (2013). It had the worst ranking of any western European country. Its 2013 ranking was worse than that in 2012. Where a system was recognised as corrupt, this must be a relevant consideration in any question of whether an individual will receive a fair trial. Even in a corrupt system, a fair trial may be possible, but the matter required the most rigorous scrutiny. Notwithstanding long and friendly relations with such a country, any assumptions or "very strong" presumptions about whether a fair trial were possible, should be replaced with an assessment of the current reality of the particular judicial system. At the very least, any such presumptions should be more easily rebuttable, notwithstanding a country's membership of the Council of Europe and its ratification of the European Convention.

[97] A potential violation of Article 6 could form a bar to extradition in an appropriate case (R (on the application of Ullah) v Special Adjudicator [2004] 2 AC 323 citing Soering v United Kingdom (1989) 11 EHRR 439 at para 113; Einhorn v France (no 71555/01), 16 October 2001 at para 33; Othman v United Kingdom (2012) 55 EHRR 1 at paras 260-261). In Othman (supra) the court had emphasised (at para 261) that it was for the appellant to adduce evidence capable of proving that there were substantial grounds for believing that the appellant would be exposed to a real risk of being subjected to a flagrant denial of justice should he be extradited. It was inappropriate to impose any higher burden of proof on the applicant than that (para 273).

[98] There had been 111 applications to the European Court concerning Albania in 2012, of which 100 were either declared inadmissible or "struck out". There were 7 judgments, in 5 of which there was a human rights violation of the Convention. In 2013 there had been 57 applications, 48 of which were inadmissible or struck out. There were 8 judgments, 4 of which involved violations. There are 478 applications pending against Albania as at January 2014. There had been no reported cases which dealt with allegations of judicial corruption in a particular system. However, there were many similarities between states where judicial corruption existed and those which employed torture. The appellant's claims regarding judicial corruption had to receive rigorous scrutiny, even although the courts in England had extradited several individuals to Albania in recent years. Despite the problem of providing evidence about the specific impact of corruption in his case, the appellant had made efforts to demonstrate what the United Kingdom Supreme Court had described as "the true facts" (para 28). On the materials lodged he had demonstrated a real risk of a flagrant denial of justice. It then became a matter for the respondent to dispel any doubts about that. He had failed to do so.

 

Respondent
[99] The rules of criminal procedure and evidence applied to extradition proceedings (HM Advocate v Havrilova 2012 SCCR 361, Lord Clarke, delivering the Opinion of the Court, at para [13], cf R (USA) v Bow Street Magistrates Court [2007] 1 WLR 1157, Lord Phillips CJ at para 76; Goatley v HM Advocate 2008 JC 1, Lord Nimmo Smith, delivering the Opinion of the Court, at para [36]). This was clear from the provisions about evidence contained in the 2003 Act (ss 202-206, including s 205 albeit that it did not apply to Scotland). The proceedings were criminal unless there was a specific reason not so to regard them. Whatever the technical rules, however, it was possible for the court to look at reports from reputable human rights bodies, whether they were subject to an admission or presented through the perspective of an expert witness. The appellant had taken the correct approach in this regard.

[100] The correct test was set out in Othman v United Kingdom (supra), where the European Court had stated that it was established law that a fugitive could exceptionally raise an Article 6 point if he "risked suffering a flagrant denial of justice in the requesting country". That principle had been, as the court said, first set out in Soering v United Kingdom ((supra) at para 113). The term "flagrant denial of justice" has been regarded as synonymous with a trial which was manifestly contrary to the provisions of Article 6 or the principles implied therein (para 259; see also EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198, Lord Bingham at paras 34-35; Mamatkulov v Turkey (2005) 41 EHRR 25, paras 84-91). The burden of proof was on the appellant to adduce evidence that there were substantial grounds for believing that there was a real risk of a flagrant denial of justice or fair trial (Brown v Rwanda (supra), para 34), although that did not require proof on the balance of probability (Othman v United Kingdom (supra) at para 261). The risk required to be substantial and not merely fanciful, but it could be established on something less than probability. The correct approach was the same as that taken in refugee cases, where the asylum seeker required only to show a real risk that he would be persecuted in the event of a return to his home state. It was possible for a fair trial to take place even if the judiciary in a particular country was not "fully" independent and impartial (O v Governor of Holloway Prison [2010] EWHC 58 (Admin), Dyson LJ at para 99).

[101] Albania was a member of the Council of Europe and a signatory to the European Convention. It recognised the right of individual petition to the European Court. The Convention was part of Albanian Law. In those circumstances, it was presumed to be willing and able to fulfil its obligations under the Convention (Krolik v Poland [2013] 1 WLR 490, Sir John Thomas P at paras 4-7). The key word following upon the decision of the United Kingdom Supreme Court was "systemic". The issue for this court was whether the situation in Albania was such that no extradition to that state could be contemplated. The answer to that question had to be informed by the way in which the European Court had addressed analogous situations. Ordinarily, the production of material, which disclosed a general problem concerning the observance of human rights in a particular country, did not, on its own, provide a basis for refusing extradition (Dzhaksybergenov v Ukraine (no 12343/10), 11 January 2011, at para 37; Sharipov v Russia (no 1844/10), 11 October 2011). In Dzhaksybergenov (supra) the court had departed from earlier case law, which had held that the conditions in Kazakhstan were such that extradition would not be compatible with the Convention (Kaboulov v Ukraine (no 41015/04), 19 November 2009; and Baysakov v Ukraine (no 54131/08), 18 February 2010). The particular problem in Kazakhstan had related to the torture of prisoners and a UN Special Rapporteur had concluded that the use of torture had gone beyond isolated instances. There was a report before the court that the law did not provide for an independent judiciary and that prosecutors enjoyed a quasi-judicial role and could suspend court decisions. Nevertheless, the Court rejected the contention that there would be an Article 6 violation. It reasoned that the applicant's complaint was one concerning only the general human rights situation in Kazakhstan and did not refer to any individual circumstances which could substantiate his fears of suffering a flagrant denial of his right to a fair trial (para 44). In Hirsi Jamaa v Italy (2012) 55 EHRR 21 the Court had stated (para 117) that it was necessary to examine the foreseeable consequences of the removal of a refugee in light of the general situation as well as his personal circumstances. For that reason, the Court often attached importance to information in recent reports from independent international human-rights-protection associations, such as Amnesty International, or government sources (para 118).

[102] In Yefimova v Russia (no 39786/09), 19 February 2013, the court had information from Amnesty International that torture remained widespread in Kazakhstan and confessions, reportedly extracted under torture, continued to be admitted as evidence (para 168). The UN Committee against Torture (2011) had reported torture as an issue of serious concern and not simply occurring in isolated or infrequent instances (para 172). There was material which described the judiciary as remaining loyal to the regime and protected the interests of the state and its functionaries rather than those of individuals, minorities and the weaker strata of society. Notwithstanding further material suggesting that the proceedings against the accused had been politically motivated, the court still did not consider that her extradition would be incompatible with the Convention and dismissed, as manifestly ill-founded, her contention that it would be incompatible with Article 6 (paras 221-227). These cases contrasted with two others in which there was material that the particular circumstances of the accused persons exposed them to an increased risk of ill-treatment (Abdulkhakov v Russia (no 14743/11), 2 October 2012; and Dzhurayev v Russia (no 71386/10), 25 April 2013).

[103] The authorities from England were limited in number, but were consistent with the European Court cases. Thus in Brown v Rwanda (supra), extradition was refused in circumstances where a key feature was that the particular accused could not advance their defences because of fear on the part of their witnesses (cf Ahorugeze v Sweden (2012) 55 EHRR 2, paras 117-126). In XX (Ethiopia) v Secretary of State for the Home Department [2013] 2 WLR 178, it was the possibility that the trial of the accused might be seen as a political one which had led the court to take the view that a flagrant denial of justice might occur. Dudko v Russia [2010] EWHC 1125 (Admin) was concerned, albeit inconclusively, with a specific issue related to alleged corruption or abuse of process on the part of the Russian prosecutor and Othman (supra) involved a very specific issue directly relating to an individual about the prospect that evidence obtained by torture would be introduced at his trial.

[104] There were good policy reasons for the general approach taken by the European Court. If the United Kingdom were not to become a safe haven for criminals fleeing from justice, the test to be applied by the courts, when faced with a challenge based upon Article 6 grounds, had to be informed by the underlying premise that, in most cases, an accused, who is not returned to the requesting state, will not face justice at all. Article 6, in its application to such cases, was intended to represent a minimum threshold for the protection of fair trial rights and not as a benchmark by which signatory states were to be compared, the one against the other. Whilst it was the court's responsibility to protect Convention rights, there were good reasons for approaching allegations of systematic denial or nullification of Article 6 rights with care. If a case were to be made out, this would have implications for all extraditions from the United Kingdom to Albania. A negative finding about a state's ability to provide a fair trial would almost inevitably lead to a cessation of the process of extradition between the states in question, at least in one direction; though the possibility of a reciprocal breakdown must also be recognised as a real possibility. Such a state of affairs would impede, for an indeterminate period, the legitimate public interest in prosecuting those accused of crime, and imprisoning those who stand convicted, where the individual has fled from one state to the other.

[105] The Evaluation Report on the United Kingdom, carried out by GRECO under its fourth evaluation round (6 March 2013), had stated that the judiciary in the United Kingdom was ranked as the most trusted institution by the public with an "untarnished reputation of independence, impartiality and integrity of its members". It had noted measures taken to set in place what it described as "an elaborate, but clearly workable, system for the appointment and discipline of holders of judicial office". A challenge remained, however, in relation to ensuring diversity in the judiciary. The need for training on shared values and ethical standards was pertinent. The report also criticised the use of "fee paid deputy and temporary judges".

[106] The appellant was content to peril his case on the broad proposition that "systemic" corruption in Albania required the United Kingdom to refuse to extradite the appellant. He did not found upon any specific personal characteristics. The allegation of systemic corruption was not supported by the material presented. Albania was a party to GRECO and subject to evaluation by that organisation. It had applied for membership of the EU and the Commission had been regularly reporting on its progress towards membership. It had a Convention compliant code of criminal procedure. The appellant's retrial would take place before 3 professionally trained judges and he could take an objection to any particular judge hearing his case.

[107] Albania had a law regulating the organisation and management of the judiciary, which contained significant safeguards directed towards securing proper judicial behaviour. This included procedures for the appointment of judges and disciplinary measures against them. The relative immunity of judges from prosecution had been removed. Ms Xhaferllari was in a unique position to comment on the activities of both the HCJ and the MoJ, having held senior posts in both institutions. It was possible for the public to make complaints about judicial conduct to the HCJ and such complaints would be investigated accordingly and reported upon to the HCJ. Disciplinary measures could be instituted and such measures had been taken in the recent past. Where there were allegations of corruption, these would be passed on to the General Prosecutor's Office.

[108] There were three categories where it could be argued that there was a real risk of unfairness. The first was where there were family or friendship ties with the judge. The second was in relation to organised criminals, politicians or those with high socio-economic status. The third category was where there was a substantial sum of money at stake. The appellant's case did not fall into in any of these categories. The evidence of Dr Zhilla was that, in murder cases, the judges would look at the merits in any event, as they would with any high profile case or one where it was known the Chief Inspector of the Judiciary was involved. Albania had a particular interest in satisfying the international community that it did things properly in a case such as the present where there was interest from overseas.

[109] In relation to the evidence of Dr Zhilla, the test was whether there was clear cogent and compelling evidence. The court was being asked to consider a series of reports through the lens of an expert. That course was a necessary step beyond that of simply presenting written reports to the court. The court should attach little weight to Dr Zhilla's evidence. He had no personal experience of conducting criminal proceedings in Albania. He had researched the matter for his doctorate, but the court had not been furnished with that material. The court had not seen his methods of sampling, questioning and analysis. None of the judges whom he had interviewed seemed to have said that they had been involved in corruption. The court should take care when assessing his general remarks that corruption was perceived as a serious concern and was widespread. There was a need to separate a perception of corruption from its reality.

[110] There were certain structural safeguards apparent in the Albanian system, including its modern code, the trial taking place before 3 judges allocated randomly, its audio recording, the necessity for a reasoned decision, the right to seek declinature and the right to appeal on fact and law. Apart from the internal safeguards, there were external protections, such as the making of a complaint to the HCJ or the MoJ. There was now a track record of complaints. Albania's situation was improving, and judges now required to undergo training at the School of Magistrates. That training included ethical practices. Judges also required to undergo annual declarations of assets, which would be checked and audited. Their pay had been significantly increased. They underwent evaluation of their professional competence. Efforts were being made to rectify problems, such as delay and poor reasoning. As an illustration of the changes which had taken place, there had been the firm action taken in the Puka case. The judges trying the appellant would be aware of this. In these circumstances, the court should reject the contention that the situation in Albania was getting worse. In all the circumstances, it was unlikely that the trial would result in a flagrant denial of justice and the appeal should therefore be refused.

 

Decision
Introduction
[111] There is something faintly invidious, if not disrespectful, about one national judicial system operating under the European Convention attempting to review the general competency of another such system. The opportunities for complacency and condescension must be considerable. There are obvious advantages in a supra-national court, such as the European Court of Human Rights, looking at the integrity of a particular system within its jurisdiction. These stem from the knowledge and experience to be gained from the multi-national composition of that court's bench and staff. It has a unique ability to compare and contrast the different criminal justice systems throughout Europe in human rights terms. This court does not have that advantage. It therefore approaches the task which has been set for it not only with considerable hesitation but also with equal trepidation. It nevertheless bears in mind that it must carry out this examination rigorously, not only having regard to the strictures of the United Kingdom Supreme Court that it must reach a "properly informed decision" (para 33) but also bearing in mind the critical remarks of the European Court in Dzurayev v Russia (2013) 57 EHRR 22 (at paras 160-165) on the Moscow City Court's failure to examine adequately the human rights situation in Tajikistan. In carrying out its task, the court records in limine that it is not aware of any system, including its own, which is without its flaws and critics. A reverse review by a foreign court of Scotland's own practices and procedures could well highlight perceived deficiencies.

[112] As a simple illustration, although Scotland does have a system for dealing with complaints about the judiciary (Complaints about the Judiciary (Scotland) Rules 2013), it has no system of routine judicial inspection. It has no formal procedure in place (apart from the supervision of the Supreme Courts in Scotland) which routinely or randomly appraises the individual performances of judges or sheriffs, although there are detailed procedures (performance frameworks) regarding individual courts and groups of courts. This is in marked contrast with the position in Albania where, whatever its faults may be, there is an operating judicial inspectorate supervised by the HCJ.

[113] Scotland has, like many jurisdictions, had significant problems with delays in its systems of both criminal and civil justice. Although it prides itself on the time limits for bringing solemn cases to trial, which are thought to be amongst the shortest in the Western world, there have been problems at the criminal appellate level (eg George v HM Advocate 2011 SCCR 568), albeit often prompted by the actions of the particular appellant (eg Beggs v United Kingdom 2013 SCCR 127; (2013) 56 EHRR 26; Mills v HM Advocate 2003 SC (PC) 1). The civil system has also met with occasional but trenchant appraisal (eg NJDB v JEG 2012 SC (UKSC) 293; Anderson v United Kingdom [2010] 7 EG 100).

[114] The courts in Scotland do not quite, as yet, have digital technology available for all summary first instance trials. Recording has been routine for evidence in ordinary civil procedure and solemn criminal trials for many years, but it is neither a requirement in respect of civil hearings, which do not involve evidence, nor in summary criminal trials. The purpose of recording is regarded not as a guard against corruption, but as a means of ensuring accuracy in the event of an appeal based upon procedural defect or the import of evidence. Not all decisions are reasoned in written form, albeit that writing will be required in the event of an appeal. Not all decisions can be appealed and some of these, although recorded in writing, may have been justified only by short oral reasoning which may not have been digitally preserved.

[115] Perhaps more to the point, it is important to note that, assuming for present purposes that judicial corruption, at least in the sense of bribery, is in fact vanishingly rare, if it exists at all, in Scotland, allegations of judicial corruption in a wider sense are by no means uncommon. They tend to be, as Ms Xhaferllari explained in the Albanian context, from disappointed litigants (usually party litigants) whose lack of success in foro is attributed by the party to some form of misconduct on the part of the decision maker or public servants operating within the court system (see eg Shetland Islands Council v Anderson's Executrix [2014] CSOH 23, Lord Stewart esp. at paras [21] to [24], [29] and [35], cf Anderson v United Kingdom (supra); Lord Advocate v Duff [2013] CSIH 50; JH or S v DS, 16 December 2004, Inner House, unreported, no XA72). No doubt their protests are repeated to, and perhaps accepted by, friends and family.

[116] It does not take much of a search on the internet to come across a variety of postings, albeit manifestly unfounded, alleging corruption amongst judges, courts, tribunals, prosecutors and the legal profession generally. Experience dictates, as Ms Xhaferllari also touched upon, that a rumour of judicial corruption, if bolstered by media attention, can rapidly become a putative reality, albeit temporarily, in the public's consciousness (see eg The Report on an Inquiry into an Allegation of a Conspiracy to Pervert the Course of Justice in Scotland, by WA Nimmo Smith QC and JD Friel, 26 January 1993). General allegations of favouritism, stemming from the judge's or the system's bias towards government, corporations or other significant institutions and against the individual are not unknown. Similar considerations apply in relation to one or more judges purporting to support another improperly as a result of professional, personal or social ties.

[117] Although there may not be any specifically Scottish statistics, the GRECO Evaluation Report on the United Kingdom (4^th Round, March 2013) reads as follows:

"16 ... the perceived level of corruption of judges is lower than the average levels of that within the EU 27. The Eurobarometer ... reveals that only 21% of those Britons surveyed think that corruption is widespread among members of the Judiciary (EU AVG 32%). Likewise, a national opinion survey published by the national chapter of Transparency International in the United Kingdom, shows that the judiciary ranks as one of the least corrupt institutions (13^th out of 16) with only 19.3% of respondents judging it to be corrupt".

 

Although GRECO uses the word "only" in relation to both percentages, most judicial office holders in Scotland would be faintly alarmed, if not horrified, upon learning that about one fifth of the population thought that they were corrupt. Such thoughts spring from what has been described in the previous paragraph combined with a lack of knowledge of how judges are trained and how, in response to the judicial oath, they arrive at decisions. The perception differs significantly from the reality. It should also not pass without remark that the United Kingdom does not escape criticism in the report. GRECO considers (para 106) that the use of fee-paid judges (eg some part time sheriffs) should be reduced and (para 140) that guidance and counselling on judicial ethics should be enhanced to include "a systematic component on ethics, expected conduct, corruption prevention and conflicts of interest and related matters".

[118] This court proceeds, therefore, to look at the allegations about the Albanian justice system with a firm, yet suitably humble, introspective appreciation of its own potential failings, as perceived, albeit often mistakenly, within the legal profession, the general public and the international community.

 

The Tests
[119] The general test in extradition cases is not in dispute. In Othman v United Kingdom (2012) 55 EHRR 1 (the "Abu Quatada case") the European Court set out the general principles to be applied. Since these are of central importance to what follows, it is worth dwelling on them in some detail. The Court said the following in relation to the "flagrant denial of justice" test:

"258 It is established ... that an issue might exceptionally be raised under art. 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v United Kingdom [(1989) 11 EHRR 439 at para 113] and has been subsequently confirmed ... in a number of cases.

259 ... the term 'flagrant denial of justice' has been synonymous with a trial which is manifestly contrary to the provisions of art. 6 or the principles embodied therein."

 

Whilst not defining the phrase in absolute terms, the Court gave examples of a "flagrant denial" in the form of: convictions in absentia with no possibility of review; a summary trial conducted with a total disregard for the rights of the defence; detention without access to a court; and deliberate and systematic refusal of access to a lawyer. The Court continued:

"260 It is noteworthy that, in the 22 years since the Soering judgment, the Court has never found that an expulsion would be a violation of art. 6. This fact, when taken with the examples ... serves to underline the Court's view that 'flagrant denial of justice' is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of art. 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by art. 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.

261 ... it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it."

 

This court will apply that dictum.

[120] In Gomes v Trinidad and Tobago [2009] 1 WLR 1038, the House of Lords reviewed the safeguards which existed in Trinidad to protect an accused from the inevitability of an unfair trial, stemming from delay. It was observed by Lord Brown (at para 34, following Woodcock v Government of New Zealand [2004] 1 WLR 1979), that the court of the requested state has obvious advantages in deciding whether a fair trial is possible. Lord Brown referred to the court's familiarity with the legal systems of both New Zealand and the United States of America (Knowles v US Government [2007] 1 WLR 47) before addressing "extradition to countries of whose judicial systems we know less and in which, it is submitted, we should have less confidence". He continued (para 35):

"Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial ...".

 

It is important to note that the word used is "assumed" and not "presumed". It was only in relation to "certain other category 2 territories and those with whom there were ad hoc extradition arrangements that a rebuttable "presumption" arose, whereby justice would be done and the burden would be on the accused to establish the contrary (para 36).

[121] As Lord Brown said:

"The extradition process ... is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international cooperation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe houses abroad."

 

In Allen v HM Advocate 2010 SCCR 861, Lord Clarke, delivering the Opinion of the Court, referred (at para [14]) to the concept that signatories to the European Convention would comply with the Convention being only a "presumption", but he stressed that such a presumption could be rebutted only by "compelling evidence". In Krolik v Poland [2013] 1 WLR 490, Sir John Thomas P also emphasised (paras 3 - 7), from the English perspective, that member states of the Council of Europe were presumed to be able and willing to fulfil their obligations under the Convention, in the absence of clear, cogent and compelling evidence to the contrary in the form of something approaching an international consensus. A distillation of all of this leads to a somewhat convoluted test which remains one placing an onus on a fugitive to adduce evidence capable of demonstrating substantial grounds for believing that he will be exposed to a flagrant denial of justice and, in the case of a Council of Europe state, there is an assumption that the state is capable of protecting an accused from an unfair trial. Compelling evidence will be required but, if it is found, it will be for the requesting state to dispel any doubts about the matter. The ratio for the test rests in the need for justice to prevail in this area; in particular to bring fugitives to justice and avoid the creation of safe havens. Justice can prevail without the heavens descending.

[122] The ratio of Dzhaksybergenov v Ukraine (supra at para 37) is that "Reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal of extradition..." (see also Dzhurayev v Russia (2013) 57 EHRR 22 at para 153). Although the general situation is relevant, it is necessary to look at the particular circumstances of the suspect and not just at the general situation (see also Sharipov v Russia (no 18414/10), 11 October 2011, at paras 33-37; Yefimova v Russia (no 39786/09), 19 February 2013). Thus, an allegation that any suspect in Kazakhstan or Tajikistan runs the risk of ill-treatment is too general. It is only in "the most extreme cases", where the general situation is such that any removal to the particular country would necessarily violate a Convention right, that the court should proceed purely on the basis of generality (Dzhurayev v Russia (supra at para 153).

[123] It was this type of reasoning which influenced the court in deciding that the evidence about the general situation in Albania was irrelevant, in that the material produced contained nothing to suggest a concern in the appellant's particular case. It is this area which the court now requires to review. The court assumes that the United Kingdom Supreme Court was not disagreeing with the European Court in Dzhaksybergenov v Ukraine (supra) when it stated (para 32) that "systemic corruption in a judicial system affects everyone who is subject to it" and that thus "No tribunal that operates within it can be relied upon to be independent and impartial". Rather, it must be asking this court to consider whether the general circumstances in Albania are so extreme as would inevitably lead to a violation in the appellant's and any other person's case. If that is correct, it would theoretically be sufficient for the appellant to demonstrate that the general situation in Albania, is in the "most extreme" category, thus avoiding the need for any reference to the particular circumstances of the appellant's own case. This would result in a "total ban" (Dzhaksybergenov (supra) para 37; Shapirov (supra) at para 35) on extradition to Albania. However, conversely, presumably if it is positively demonstrated that a particular person will in fact receive a fair trial in Albania, the general situation in Albania cannot fall into the "most extreme" category, since it would have been demonstrated that the extradition of the particular individual would not result in a violation. It must therefore follow, if that were demonstrated, that extraditions to Albania as a generality will not necessarily violate a Convention right.

[124] The court is, accordingly, acutely conscious that its remit may be a curious one. It must, first, determine whether there is "systemic" corruption in the Albanian judicial system on the hypothesis (which this court must accept) that, if there is, it must affect everyone involved in that system (including the appellant) on the basis that no "tribunal that operates within it can be relied upon to be independent and impartial". Secondly, it must determine whether there are substantial grounds for believing that there is a real risk of a flagrant denial of justice in the appellant's case if he were returned to Albania. That does not require an appellant to prove the existence of a risk on the balance of probabilities. He merely has to show "substantial grounds" and leave it to the respondent to dispel any doubts. It would seem, however, that the evidence demonstrating the grounds has to be "compelling" in the form of something approaching an international consensus.

 

Evidential Rules
[125] It appears, from the terms of the 2003 Act, that extradition proceedings at first instance are governed by the rules of summary criminal procedure (see s 77(2)(a)) and that, subject to any statutory exceptions, the rules of evidence must be those applicable to criminal cases (see eg 77(2)(b), 206(1) and (2)). Appeals are to the High Court of Justiciary (ss 103, 216(9)). It has been said that extradition proceedings both at first instance and on appeal are "sui generis", albeit more akin to criminal rather than civil proceedings (Goatley v HM Advocate 2008 JC 1, Lord Nimmo Smith, delivering the Opinion of the Court, at para [36]). It is more accurate to say that the rules of criminal evidence and procedure are, in the absence of some special circumstance, normally applicable (HM Advocate v Havrilova 2012 SCCR 361, Lord Clarke, delivering the Opinion of the Court, at para [13], following R (USA) v Bow Street Magistrates Court [2007] 1 WLR 1157, Lord Phillips CJ at para 76). There is, after all, no hybrid code of evidence applicable to extradition cases or to those many criminal processes in which a human rights point is raised. If a fact, including a substantial ground, requires to be established, the normal rules must apply. That having been said, the court was referred to appeals in England, where extradition appeals appear to be heard in civil courts, in which a relatively informal practice in relation to "information" appears to have developed (Plotkovski v Poland [2012] EWHC 375, Collins J at 7; Bogdani v Albania [2008] Ex LR 284, Pill LJ at 10-11, 45; Brown v Rwanda [2009] Ex LR 197).

[126] The European Court has pronounced itself free, indeed obliged, to look at "all the material placed before it, or, if necessary, material obtained proprio motu" (Dzhaksybergenov v Ukraine (App no 12343/10), 11 January 2011 at para 35). It has stated that it will attach importance to "the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources, including the US State Department" (ibid; Yefimova v Russia (supra), at para 192; Hirsi Jamaa v Italy (2012) 55 EHRR 21, paras 117-118). This may be entirely sensible for a court which operates across several jurisdictions. It is certainly understandable in a European court with a continental European, and thus relatively free, approach to the admission of evidence and its assessment. It may also be a sound footing upon which the law should be developed in this jurisdiction. Whether that is so or not, the stark position is that it is not the law of evidence in criminal cases, which, as has already been noticed, applies in extradition proceedings such as these. There is, of course, the added peculiarity that these are appellate and not first instance proceedings. However, the court proceeds on the basis that the same rules must apply as those which bound the sheriff, before whom the point ought to have been raised in the first place.

[127] There are many official documents which can be relied upon without their content having been spoken to in the oral testimony of a witness (Davidson: Evidence para 6.02 et seq; Walker & Walker: Evidence (3^rd ed) c 19); notably authenticated documents emanating from United Kingdom or Scottish Government departments (Criminal Procedure (Scotland) Act 1995, s 279A) and, where an Order in Council has been made, from certain overseas countries (Evidence (Foreign, Dominion and Colonial Documents) Act 1933 s 1). There are specific provisions regarding the proof of documents emanating from extraditing states under the 2003 Act (s 202). However, there is no general provision which allows the court to hold as proof of fact, merely by their production, the content of reports or other papers emanating from foreign governments, international governmental or non-governmental bodies, or academic or research institutions.

[128] The approach of both parties was to put selected passages of reports and papers to one or other or both of the two witnesses, even if they had never seen the documents before, and ask them to confirm what was written in the document. Sometimes, they would be asked to agree with what the document said (in which case no doubt their testimony became a competent part of the proof). Sometimes they did and sometimes they did not. At other times, the content of, for example, a survey was simply presented to the witnesses for their comment, as if it had been already proved and its import was readily understandable. All of this left the court in a quandary about just what to do with the mass of material lodged, in so far as a part of it may have been put to the witnesses. In particular, although it may reflect an unfortunate relative ignorance of the court on such matters, it is not at all clear what status ought to be afforded to the work of organisations such as GRECO, Transparency International, IDRA or Freedom House, with which the court is not at all familiar. Similarly, although members of the court are more familiar with using Country of Origin, Human Rights Watch and US State Department reports in immigration cases, where the rules (or rather the absence of rules) applicable to civil administrative proceedings prevail, it has difficulty with the concept that a judicial body should simply accept as true, and thus as proof of fact, the statements of officials in the executive of governments, whether at home or abroad, or in international institutions, such as the EU Commission or the Council of Europe; far less those in NGOs or groups with a particular human rights or other agenda. There was certainly no evidence from either of the two witnesses about what status they would afford to the many institutions and authors who created the documents put to them or, more importantly, what the basis for their attribution of credit might be.

[129] The two witnesses were not giving expert evidence of opinion. Whether, and to what extent, there is corruption in the judiciary of Albania is not a matter of opinion. It is a matter of fact. It is for the court (and not an expert) to decide that matter based upon competent and relevant evidence placed before it. The role of the expert may be to interpret that evidence, where his or her special skills are required to do this. However, in relation to the content of the documents, that was not the role played by the witnesses. Rather, they were used almost as commentators to introduce material, most of which was never proved as fact, contained in the large range of documents lodged. The witnesses were not using their expertise as lawyers to assist the court's understanding of the material. The court was essentially just as capable of reading and understanding the documents as they were.

[130] With these grave reservations about the fragility of the evidential base, the court will proceed on its understanding of what the witnesses themselves said about the nature and extent of corruption in Albania, as persons versed, to one degree or another, in the laws and practices of that country. Before doing so, the court must lay down a particular marker. It reminds itself that there is no requirement on the appellant to prove substantial grounds for believing that there is a risk of unfair trial on a balance of probability. It is sufficient that he adduces evidence capable of proving that there are such substantial grounds; leaving it to the respondent to dispel any doubts about that (see supra and eg Abdulkhakov v Russia (no 14742/11), 2 October 2012 at para 134). Nevertheless, it does not consider that it can make much, if anything, of the contents of the many surveys documented in the material lodged. As the GRECO fourth round survey of perceptions in the United Kingdom illustrated (if it were not obvious), such surveys are not, and are certainly not in the court's view, to be taken as indicative of the level of corruption in a country in general or in its judicial system in particular, far less as proof of that level. A vox populi or even iudicum is hardly a sound basis upon which a court should make assessments of fact. In short, the court did not find this material useful, especially in the absence of information about the exact terms of the questions posed to the participants (eg how corruption was defined), as proof of the level of corruption, as distinct from its perception, in Albania.

 

Corruption in the Albanian Judiciary
[131] The adjective "systemic" may mean "systematic"; that is to say something which is "arranged or conducted according to a system, plan, or organised method" (Shorter Oxford English Dictionary sub nom "systemic" and "systematic"). The court notes the reference in its remit being to determine "how systemic or widespread" the problem is, but it is not immediately clear whether these two adjectives are to be regarded as synonymous. It will proceed on the basis that if corruption is "widespread" in a judicial system, it can properly be regarded as systematic and "systemic".

[132] It is abundantly clear that there is a high level of perception in Albania, including that of some judges, that corruption exists in the judicial system and elsewhere in the Albanian public sector. The court has no difficulty in concluding that corruption occurs in the Albanian judicial system, if by that is meant that it has occurred, and may again occur, in certain situations. The broad impression, upon a consideration of all the material presented, is that, so far as the criminal justice system is concerned, it may occasionally affect decisions involving high ranking politicians or organised criminals, especially on incidental or procedural matters such as bail (eg the Puka case). It may affect civil cases where there is a political dimension or very large sums of money involved. The extent of this is entirely uncertain. At best for the appellant, there may have been undue influence of one sort or another in criminal cases involving a single judge on matters of procedure. It may be more frequent than this, but there is simply no adequate material upon which it could be held that there are substantial grounds for believing that it exists at such a level as will necessarily involve a flagrant denial of justice in all, or even most, cases. Quite the contrary, most of the material in the reports spoken to is of a very general nature and often simply repetitive of earlier reports by the same or a similar organisation. The court is entirely satisfied therefore that there has been no evidence presented to it, and certainly no cogent or compelling evidence, that there are substantial grounds for believing that the level of corruption in the Albanian judicial system is at the "systemic" level such that it falls into that "extreme" category whereby the removal of anyone to that country would necessarily result in a violation of a Convention right. As will be seen, it is equally satisfied that there are no substantial grounds for believing that there is a risk of the appellant, in particular, being the subject of an unfair trial should he be extradited to Albania.

[133] The court was generally impressed by the frankness of Dr Zhilla's testimony, which was given in a reasonable, measured and balanced fashion. The problem which the court had, in considering certain of his views on the central issue of systemic corruption, was that he was not, and never had been, a practising lawyer or judge in the Albanian criminal justice system. He was also not familiar with the particular situation in Elbasan. Dr Zhilla is not, of course, to blame for this, nor are the appellant's legal representatives. They attempted to obtain first-hand information from Albanian lawyers working in that system, but, for whatever reason, they were not successful in securing direct testimony to support the appellant's position. That is important.

[134] Dr Zhilla based his view on the extent of corruption in the Albanian judiciary not so much upon the many surveys, which he was referred to, but upon a series of interviews; almost all of which formed the basis of his doctoral thesis. The problem with that is that the assessment of the weight to be attached to his view can only properly be made upon an examination of the facts explored in these interviews and scrutiny of the analysis of the material ingathered. Whilst not suggesting that it was necessary, or even desirable, for the thesis itself to be lodged formally as a production, it is somewhat surprising that the fundamental source of Dr Zhilla's view was not available in some form to enable it to be the subject of proper judicial scrutiny. The court did have Dr Zhilla's interesting article "Organised crime and judicial corruption in the western Balkans" (2011) 18 Journal of Financial Crime 387, which offers a fascinating backdrop to Balkan problems.

[135] There was also a problem with Dr Zhilla's report in relation to its concentration, albeit by no means exclusively, upon the situation at the time of the appellant's trial in absence. That may have been because of his understanding of his instructions, but the court is not so much concerned with the situation (some years distant now) at the time of the trial but in that which will pertain if and when the appellant were to return to Albania. The court focused on the most recent material, albeit that the older reports were not ignored but rather read in their historical context.

[136] A peculiarity in relation to Dr Zhilla's approach to the original trial was that he was prepared to advance the idea, which did not appear to have any basis in fact, that the judges at the original trial may not have assessed the evidence properly. Dr Zhilla had not seen the evidence and was hardly in a position to comment upon that. Dr Zhilla said that the absence of any pressure caused by the presence of an accused person with ties to the judge may have resulted in it being easier to return a guilty verdict. However, Dr Zhilla did not even know who the judges in the case had been. Dr Zhilla also referred critically to the competency of the defence representatives. Once again, he did not know who they were or what abilities they displayed generally or in connection with this particular case. Finally, in this general area, portions of Dr Zhilla's testimony and his report dealt with much wider political and media issues, which, while interesting in general terms, did not seem to have a significant bearing on the essential issue for resolution in this case.

[137] The court was also impressed by the openness of the evidence of Ms Xhaferllari. Where she had the advantage over Dr Zhilla was in her personal experience as a judge and as an inspector of judges in the Albanian criminal, and wider, justice system. The court readily acknowledges that Dr Zhilla could be regarded as potentially more independent than Ms Xhaferllari, given her official role in supervising the judges' inspectorate within the HCJ system. She might be expected to be partial to the interests of the Albanian state, standing her position. The court noted, in this context, that when she was asked specifically about the actual level of corruption within the judiciary, she became more defensive and guarded in her answers than when answering questions about, for example, the functioning of the inspectorate or the content of governmental or NGO reports and papers. Nevertheless, the court concluded that, notwithstanding occasional reticence, Ms Xhaferllari was answering the questions as honestly and openly as was reasonably possible in the circumstances. She was, throughout her testimony, manifestly on top of the subject matter, notably the general situation of the judiciary in Albania and the facts of the appellant's case in particular. Not only did Ms Xhaferllari have an in depth knowledge of the workings of the judiciary, stemming from her own work as a judge and from her subsequent appointments with the MoJ and then the HCJ, she had a sound familiarity with the position in Elbasan. She was aware of the working conditions there, the extent of its infrastructural problems and not only the ratings of the individual judges' evaluations but also the practical consequences of these results.

[138] Having carried out this comparison of the testimony of the two principal witnesses, and observed them giving evidence (which both did in almost flawless English), the court has reached the view that, on the essential but limited matters over which the witnesses differed, notably the actual level of corruption in Albania, the evidence of Ms Xhaferllari is to be preferred. The effect of this, as a generality, is that the court does not accept Dr Zhilla's evidence that the level of corruption in the judiciary of Albania is endemic, nor that it is a permanent, socially acceptable phenomenon. It does accept, as already noted, that the level of perception of corruption in the judiciary amongst the general public is high, as it is in a number of organs of government. It accepts too that a limited number of judges suspect that their colleagues are corrupt in one form or another. It accepts that there has been a history of corruption in a variety of state, or former state, enterprises perhaps stemming from the communist era. However, as Ms Xhaferllari pointed out, if it was a permanent socially acceptable phenomenon, there would hardly be the considerable public outcry about the existence of corruption as there evidently is; nor would there be the repeated political condemnation of corruption as a practice or the substantial media coverage given to allegations of its periodical occurrence, especially within the justice system (eg Puka).

[139] It is not necessary to repeat much of what has been said in the many references to the reports to which the witnesses' attention was drawn and which has already been summarised or quoted (supra). It is sufficient to observe that Albania itself has acknowledged the existence of corruption in its judicial system, as a remnant from days past. This was stated in the National Strategy for Development and Integration 2007-2013 (2008) (supra, p 27). Its existence has been repeated in many reports since then, including those from the Council of Europe's Commissioner for Human Rights, the UK Border Agency and the EU Commissioner. It has been examined in each of the GRECO evaluation rounds. It is not disputed that there have been substantial improvements in tackling corruption, notably: the removal of judicial immunity in 2012; the operation of the School of Magistrates; the bolstering of the evaluation process by the HCJ inspectorate; the increase in effective disciplinary procedures; improved court infrastructure to enable hearings to be in courtrooms and subject to recording; training of the judges in the need for, and form of, written reasoning; greater transparency in judicial appointments; and increases in judicial salaries and security.

[140] The Council of Europe's Human Rights Commissioner's phraseology is guarded in his reference (in his Summary) to the "reportedly" high level of corruption "impeding" the proper functioning of the judiciary. He recommends further reform: to ensure that all cases of corruption in the judiciary are investigated and prosecuted; to increase judicial salaries; to improve the meritocracy in judicial appointments; and to strengthen the independence of the HCJ. He criticises the "very slow pace" of the implementation of European Court judgments and expresses concern about the prevalence of delay, inadequate legal aid and practical access to a lawyer by detainees. He concludes that there are "a number of systemic dysfunctions affecting the enjoyment of human rights" (paras 5 and 10), although he recognises at the same time the steps being taken to improve the situation, notably the content of the Justice Reform Strategy (2011) (para 13). Further efforts were deemed necessary "in order to bring the domestic systems fully into line with Council of Europe standards" (para 14). The Commissioner repeated the content of several reports, already quoted in the rehearsal of the evidence, regarding perceived levels of corruption and the measures being taken to tackle the problem. Despite all the faults identified in the Albanian justice system, it is again quantum valeat (see supra) not the court's understanding of the Commissioner's view that the state of Albanian justice is such that a person extradited to that country would necessarily have his Convention rights violated; and certainly not his view that persons accused of serious crime are routinely convicted as a result of unfair trial procedures and/or corruption. The Commissioner comments (para 74) that the European Court has found that Albania has contravened Article 6 in certain specific instances (Caka v Albania (no 44023/02), 8 December 2009; Laska and Lika v Albania (nos 12315 and 17605/04), 20 April 2010; Berhani v Albania (no 847/05), 27 May 2010; Cani v Albania (no 11006/06), 6 March 2012; and Shkalla v Albania (no 26866/05), 10 May 2011. Such findings apply to many signatories to the Convention including the United Kingdom. None of the Albanian cases have involved allegations of corruption on the part of the judiciary. The Commissioner expresses concern about the "lack of effectiveness, so far, of the fight against corruption, notably in the judiciary" (para 96), but he does not conclude that it is so systematic or systemic that denial of a fair trial is inevitable or likely or indeed that there are substantial grounds for believing that a fair trial will not occur either as a generality or in the type of prosecution potentially faced by the appellant.

[141] Whilst not dwelling on the detail of the many reports, what can be said is that progress of a substantial nature has been made over the last decade. It has not been as rapid or as effective as it might be and, no doubt, there is much work to be done. This has been made clear by the Commissioner following his September visit (supra). Overall, the court agrees with the general optimistic tenor of Ms Xhaferllari's evidence on the progress which had been made and on the continued endeavours of many in Albania to improve the justice system and to eliminate the risk of corruption occurring, where possible. At the risk of repetition, the fundamental conclusion of the court remains that, although there may well be elements of corruption in the Albanian judicial system (as there may be in those of other signatories to the Convention), there is no proper evidential basis for the conclusion that it is at a systematic or systemic level such that there are substantial grounds for believing that any person being extradited to Albania would risk suffering a flagrant denial of his right to a fair trial. There is, on the other hand, cogent and compelling evidence, which the court accepts, that this particular appellant will obtain a fair trial upon his return to Albania.

[142] The court has no difficulty in concluding on the evidence that the appellant will receive a Convention compliant fair trial upon extradition to Albania. In particular, the court heard no evidence whatsoever that an ordinary murder trial, or indeed an ordinary criminal trial of any serious offence, would be affected by judicial corruption. If corruption exists to a substantial degree in the criminal justice system, it is relative to the prosecutions of influential political figures, organised criminals or their respective friends or families. Even then, the court heard no evidence of any instance in which it was thought that an innocent man had been convicted of any criminal offence, far less one which was sufficiently serious to merit the attention of a bench of three, because of his failure to pay a bribe or adopt some other corrupt practice. In particular, it heard no evidence, or even a suggestion from the witnesses, that, as Lord Hope put it (para 28): "Unjust convictions may result, just to keep the system going and keep prices up." The court was unable to locate any material upon which this statement might have been based.

[143] The appellant's re-trial will involve consideration of the evidence by three judges in accordance with a code of evidence and procedure which is subject to the over-arching principle of a fair trial, as enshrined in Article 6. The appellant will be tried by a bench of three. If he wishes to object to a particular judge, he could do so and this would be determined by another judge and the decision would be open to an appeal. The appellant is entitled to choose his own lawyer or, if he is unable to afford one, a lawyer will be appointed by the court and paid for by the state. Although there is a risk that a state appointed lawyer might not be quite as skilled as one paid for privately, he or she would still be competent, having been selected from a list approved by the local law faculty. The appellant will be provided with a copy of the evidence gathered by the prosecutor (in this case from the London Metropolitan Police) and given an opportunity to consider it and prepare his defence. He will be allowed to challenge the evidence against him and to lead evidence from witnesses in his favour. The proceedings in Elbasan, although not taking place in the most salubrious of Albanian courts, will be in public and recorded electronically. In the event of a conviction, the appellant would be entitled to a reasoned decision, which he could appeal to a higher court, perhaps even the Constitutional Court, which has shown itself able to listen to, and sometimes to sustain, appeals based upon the Article 6 fair trial requirement. He could complain about any improper behaviour by a judge to either the MoJ or the HCJ and be assured that his complaint would be investigated. Ultimately, he could take his case to the European Court and seek redress there, if any violation of his article 6 rights were demonstrable. Even if the appellant's case had not become the subject of particular media and state attention, these protections would exist and, even if they may not operate at all times as efficiently as they might, there is simply no scope on the evidence for an argument that the appellant's trial might not be fair. In this connection, it is worth repeating that no-one suggested that the outcome of an ordinary criminal trial in Elbasan for a serious crime would be compromised by any form of corruption or that, if it were, such corruption would influence the judges in favour of a conviction.

[144] In the appellant's particular case there would be careful scrutiny by the HCJ inspectorate and the media. The judges would be aware of this and will have seen the action taken in the Puka case. There would, therefore, be effectively no prospect of the appellant's trial being compromised when the spotlight of the inspectorate and the media was upon it.

[145] The appeal is refused.