Challenging extradition on human rights grounds

This article was first published on LexisLibrary on 12 July 2013. Corporate Crime analysis: Are the courts showing signs of relaxing the stringent threshold to be met when resisting extradition? Helen McDowell, business crime managing partner, and Emily Wilson of Peters & Peters, advise that its worth considering new human rights angles in extradition cases. Original news Kapri v The Lord Advocate representing The Government of the Republic of Albania [2013] UKSC 48,[2013] All ER (D) 123 (Jul) Mr Kapri, an Albanian national, was convicted in Albania, in his absence, of the murder of another Albanian national in England, the matter having been transferred to the Albanian authorities by the English Crown Prosecution Service (CPS). Mr Kapri was located and arrested in Scotland and his extradition to Albania ordered. Mr Kapri appealed, among other things, on the basis that his extradition would not be compatible with his rights under the European Convention on Human Rights, art 6 (ECHR). The appeal court in Scotland ruled that evidence on which the appellant sought to rely was inadmissible and that accordingly, Mr Kapris related ground of appeal was excluded. The Supreme Court allowed Mr Kapris appeal on the basis that his allegation of systemic corruption in Albania was sufficiently serious for it to have been necessary to have a closer look at the material in order to determine how systemic or widespread the problem was. Accordingly, the appeal courts ruling on admissibility would be set aside and the matter remitted to the High Court of Justiciary for further consideration. To what extent is the functioning of the requesting nations judiciary a consideration in extradition cases? Most extraditions are largely procedural in nature. However, before ordering surrender, a judge must decide whether the persons extradition would be compatible with the ECHR. If the judge finds that it would not, then they must refuse the extradition request. It is only if an argument similar to that put forward by Mr Kapri is raised, that the functioning of the requesting nations judiciary may become a consideration. Mr Kapri argued his extradition to Albania would breach his right to a fair trial under the ECHR, art 6 because of systemic corruption in Albanias judiciary. In previous cases, the lack of judicial independence has been raised to support arguments that a requested person would be unlikely to receive a fair trial. However, this is the first case that I am aware of in which systemic corruption has been argued as a bar regardless of the requested persons individual circumstances.

What level of evidence would be required to satisfy the stringent test set by the court? In order to resist extradition on human rights grounds, applicants must show there is a real risk that, if extradited, there will be a flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country (Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1). The European Court of Human Rights (ECtHR) has consistently decided that this test can only be met in very exceptional circumstances and that applicants must demonstrate particular facts which point to a flagrant denial of justice in their individual case, rather than in cases involving the requesting state generally. However, the Supreme Court found in Kapri that it may not be necessary to point to particular facts or circumstances affecting the individual in this case because systemic corruption in a judicial system affects everyone who is subjected to it and it is impossible to say that any individual who is returned to such a system will receive a fair trial. That is not to say that the evidential bar would not be high. Extensive expert evidence including reports of international organisations and governments would be required. However, it does seem that proof of systemic judicial corruption would be enough to bar extradition without an additional specific link to the case being proved. This case is rather unusual as the crime was allegedly committed in the UK, but between Albanian nationals, why was a conviction not pursued in the UK? After investigating the murder in London of an Albanian citizen in 2001, the Metropolitan Police identified Mr Kapri as the prime suspect but were unable to locate him (he had fled to Scotland and assumed a false identity). The CPS passed the file to the Albanian authorities and invited them to prosecute Mr Kapri. Albanian law grants jurisdiction to prosecute murders committed extraterritorially where the deceased and the suspect are both Albanian, and the accused was subsequently tried in his absence in Albania. Are human rights arguments more likely to block extradition where the individual has been tried and sentenced in absentia in the receiving state? The fact that someone has been convicted in absentia can be a ground for refusal if certain conditions are not satisfied. The UK will not extradite a person convicted in absentia, provided he did not deliberately absent himself from the trial, unless the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial (Extradition Act 2003, s 85 (EA 2003)). In recent case law it was established that a conviction in absentia in Albania does not in itself preclude extradition because Albanian law grants a retrial on the merits of the case. Any separate human rights arguments, such as the systemic corruption of the judiciary raised by Mr Kapri, are considered independently of this point. What are the additional challenges when considering extradition requests from Category 2 territories? EU member states are designated as Category 1 territories under the EA 2003. These countries benefit from a fast-track extradition system, the European Arrest Warrant, which relies heavily on the mutual trust that these states have in each others judicial systems.

All other countries with which the UK has extradition arrangements are Category 2 territories. Generally these countries must show they have prima facie evidence which would justify the committal for trial of the prisoner for the crime of which he is accused had it been committed in England and Wales before the UK will agree to extradition. However, signatories to the European Convention on Extradition 1957, which governs extradition arrangements between the UK and Council of Europe members who are not EU member states (including Albania), as well as Australia, Canada, New Zealand and the United States are not required to present prima facie evidence. What can lawyers take from this decision? The Kapri case will now go back to the appeal court in Scotland where the court will be provided with up-to-date information about the level of corruption of the judiciary in Albania and must reach a decision as to whether or not the threshold test is satisfied. If the threshold is met, Mr Kapri will be discharged. If it is not then his extradition will be ordered, although he could still appeal to the ECtHR. The case shows it is always worth lawyers looking for a new human rights angle in extradition cases. It is also a rare indication from the court of a slight relaxing of the extremely stringent threshold that must be reached in order to succeed in resisting an extradition request on human rights grounds. Interviewed by Guy Skelton. The views of our Legal Analysis interviewees are not necessarily those of the proprietor.