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High Court gives its consent to the United Kingdom (Scotland) for the onward surrender of a man convicted of murder in Albania in absentia, on the grounds that the respondent failed to establish any grounds to establish that his surrender would be in breach of his constitutional and ECHR rights.
European arrest warrant – request for onward extradition - UK authorities seeking the consent of the Irish Courts for the extradition of the respondent to Albania from the United Kingdom – previously surrendered to the UK on foot of a European arrest warrant - serving a sentence imposed on him in respect of the offence for which he was surrendered – Court made a compulsion order and a restriction order - the respondent is subject to conditions of detention in hospital and to treatment without limit as to time - surrender is sought for the offence of murder by means of an automatic firearm – argued that his right to bodily integrity would be violated if extradited to Albania because of his particular mental health issues and the prison conditions in Albania – argued that he had a trial in absentia and the retrial guarantees are insufficient – argued that onward surrender would be a violation of his right to fair trial – argued that onward surrender would breach his private and family rights - s. 24(4) of the European Arrest Warrant Act, 2003 – statutory interpretation – Court must consider whether his or her extradition would not be prohibited by the Extradition Acts 1965 – 2001 - High Court must consider the application from a wider perspective than merely confirming that the third country making the request is a party to an extradition agreement with this State – courts of Ireland have operated the Act of 1965 on the basis that the Act and the extradition agreements prohibit extradition, where extradition would amount to a violation of fundamental rights under the Constitution or the European Convention on Human Rights - Court must proceed to consider whether his rights under the Constitution and the ECHR will be protected if he is to be extradited to Albania from the United Kingdom - specific prohibitions contained in the Extradition Act 1965 - Court is satisfied that none of the express prohibitions on extradition contained in the Act of 1965 require consent to his onward extradition to be refused - respondent’s mental health, Albanian prison conditions and inhuman and degrading treatment - initially consented to his extradition to Albania - diagnosed with paranoid schizophrenia - receives treatment - mental state has remained stable and he has been in remission from symptoms of psychosis for some considerable period of time - benefitted from treatment with anti-psychotic medication - without appropriate treatment including medication, the respondent’s future mental health would be at significant risk - capable of giving the appropriate consent - evidence with respect to Albanian conditions - historical problem of overcrowding was now in decline - provision of care for the mentally ill is wholly underdeveloped - response of the Albanian Government and engagement with European authorities – argued that there was a substantial risk that he will not receive the required treatment if returned to Albania - Information provided by the Albanian authorities – stated he would be accommodated at the Institute for Enforcement of Criminal Judgments (IECJ) of Durres because this institution has a specialized psychiatrist - respondent argued that the assurances provided were not sufficient – Country of origin reports - law regarding mental health, prisons and inhuman and degrading treatment - principles under which the court must operate when assessing if there has been a breach of right against inhuman and degrading treatment – respondent must establish substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR presumption arising in extradition cases that the requesting country will act in good faith and that it will respect the fundamental rights of the requested person – presumption arising in extradition cases that the requesting country will act in good faith and that it will respect the fundamental rights of the requested person - evidence establishes that Albania has not had a good record in terms of its prisons conditions - government has given specific assurances that the respondent will be given the appropriate medical treatment including medication - Court is bound to apply the presumption that a country seeking extradition will act in good faith and respect fundamental rights - presumption is weaker than in the case of surrender involving an E.U. member state and the EAW procedure – no cogent evidence that the respondent’s right to freedom from inhuman and degrading treatment will be violated - he will be provided with continuous psychological and counselling therapy by the psycho-social staff and that he will have an individual treatment programme - no designated psychiatric institution to house forensic psychiatric patients - regulatory framework with respect to his detention is also established as being in line with European standards - Court is satisfied that there is no basis for rejecting the specific assurances that have been given in this case with respect to the treatment of this respondent - Court is satisfied that it has not been established that there are substantial or reasonable grounds for believing that there is a real risk that this respondent will be subjected to inhuman and degrading treatment if extradited to Albania on account of his mental ill health and the conditions in which he will be detained - claimed that, because of the practices within the criminal justice system that operate in Albania, he will not receive a fair trial, in particular as there are significant levels of corruption in Albania - respondent must discharge a heavy onus to show that there are substantial grounds for believing that there is a real risk that he will not receive a fair trial to the extent of a flagrant denial of that right to a fair trial - how to address allegations of systemic corruption in extradition cases - a court have a close look at material in order to determine how systemic or widespread the problem is at the time of the particular hearing - whether there is evidence to establish substantial grounds for believing that the respondent will be at real risk of a flagrant denial of his fair trial rights if he is extradited - corruption is being tackled – evidence did not establish that this particular respondent is at real risk of being exposed to a flagrant denial of his fair trial rights – evidence established that real and specific steps are taken to prosecute this behaviour where it can be established - Court satisfied that it has not been established that there are substantial grounds for believing that there is a real risk that the respondent will be subject to a flagrant denial of his fair trial rights under Article 6 of the European Convention on Human Rights - right to a retrial after trial in absentia - tried in his absence in Albania - nature of their system of trial in absentia - no automatic guarantee of a retrial under the law - clear in the present case that there is such a guarantee for the respondent - particular respondent has not placed any specific evidence before the Court to show that he would not be able to avail of the retrial because of any particular conditions which apply to him - Court is satisfied that it has not been established that there are substantial grounds for believing that there is a real risk that, on the respondent’s return, there will be a flagrant denial of justice by virtue of his previous trial in absentia – delay – argued that as a result of a delay his surrender would be a breach of the Article 38 constitutional guarantee to expeditious trial and to the right to a trial within a reasonable time under Article 6 of the ECHR - may be occasions when it is more appropriate to litigate delay in the requesting state - case involves a man who apparently changed his name when he left Albania and lived in Ireland and in Scotland for about 20 years - the delay is due to his own behaviour - acted without delay once his identity became known – argued that surrender would be in breach of his family rights - principles that the Irish courts must consider - unnecessary to carry out any elaborate factual analysis as this is not a case which can be said to be truly exceptional in it features - has no contact with his children in Ireland - cumulative grounds - court is satisfied that it can give its consent to the United Kingdom (Scotland) to extradite this respondent to Albania.
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