CASE OF MALO v. ALBANIA

SECOND SECTION

CASE OF MALO v. ALBANIA

(Application no. 72359/11)

JUDGMENT

STRASBOURG

22 May 2018

FINAL

22/08/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Malo v. Albania,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 17 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 72359/11) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Vladimir Malo (“the applicant”), on 31 October 2011.

2. The applicant was represented by Mr S. Luci, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s Office.

3. The applicant alleged, in particular, that there had been a breach of Article 6 § 1 of the Convention.

4. On 26 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1975. He is currently serving a prison sentence.

A. The first set of proceedings

6. On 9 July 2002, following proceedings in absentia, the Gjirokastër District Court convicted the applicant of attempted armed robbery, negligent homicide and premeditated murder in relation to another criminal offence, and sentenced him to twenty-five years’ imprisonment. Three other co‑defendants, whose requests for the use of the summary procedure had been granted, were also found guilty. The applicant was represented by a court-appointed lawyer.

7. On 7 October 2002, following an appeal by the three other defendants, the Gjirokastër Court of Appeal upheld the decision in the applicant’s absence.

8. On 10 October 2007, upon the applicant’s extradition to Albania, the District Court accepted his application for leave to appeal out of time. The District Court stated in its reasoning that the postal service had noted that the applicant was living in Italy and that as a consequence he had not been aware of his conviction.

B. The retrial proceedings

9. On an unspecified date in October 2007 the applicant lodged his appeal. In the first place, he requested that his case be re-examined separately from that of his co-defendants on the grounds that he had not sought the use of the summary procedure. He relied on the Supreme Court’s unifying decision no. 2 of 29 January 2003 (see paragraph 16 below). Secondly, he requested that a fresh examination of the evidence be conducted in his presence and that a number of witnesses be questioned. Thirdly, he maintained that the authorities had failed to inform him about the judicial proceedings before the first-instance court.

10. On 17 December 2007 the Gjirokastër Court of Appeal upheld the applicant’s conviction in absentia. The court ruled that the applicant had not put forward new evidence to change the outcome of those proceedings. His request had been directed against the probative value of evidence which had already been examined and decided upon. In upholding the conviction, the court relied on forensic evidence produced in 1997 and 1999 and on witness statements made in 2001 and 2002. The court further stated that the applicant had been duly informed as the authorities had issued a public notice. It finally noted that the summary procedure had been applied equally to all the defendants in accordance with the Supreme Court’s unifying decision of 29 January 2003 (see “Relevant domestic case law below”). Separating the cases could not be considered as the district court had not decided on that issue.

11. On an unspecified date the applicant lodged an appeal against the Court of Appeal’s decision. He complained of a breach of his right to have witnesses questioned and evidence re-examined. He stressed the fact that in his appeal to the Court of Appeal he had asked for evidence to be obtained, including an identification parade, the questioning of a fourth person who had been present at the events, a face-to face confrontation between himself and the other co-defendants and so on. It had not been possible for him to obtain that evidence himself, only the courts or the prosecutor could have done that. The applicant also maintained the other complaints he had raised in his Court of Appeal case.

12. On 5 March 2010 the Supreme Court dismissed the appeal, finding that it lacked any grounds of appeal as prescribed by law.

13. On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court.

14. On 9 May 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision that his appeal was inadmissible.

II. RELEVANT DOMESTIC LAW AND PRACTICE

15. The relevant domestic law and practice at the material time as regards proceedings in absentia have been described in detail in the judgments of Shkalla v. Albania (no. 26866/05, § § 28-35, 10 May 2011), and Izet Haxhia v. Albania (no. 34783/06, § § 19-42, 5 November 2013).

16. The relevant domestic case-law and practice as regards the conduct of the summary procedure at the material time have been described in detail in Cani v. Albania (no. 11006/06, § § 34-35, 6 March 2012).

17. The relevant provisions as regards the scope of the examination of an appeal by the Court of Appeal, the reopening of the judicial examination of a case (përsëritja e shqyrtimit gjyqësor) by the Court of Appeal, and the competences of a court of appeal, have been described in detail in Mulosmani v. Albania (no. 29864/03, § 106, 8 October 2013).

18. The relevant provisions as regards the appeal procedure before the Supreme Court have been described in detail in Çaush Driza v. Albania (no. 10810/05, § 53, 15 March 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19. The applicant complained under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention about his trial in absentia. He also complained that he had not been permitted to examine witnesses or request the examination of evidence in the retrial proceedings. Those provisions read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

A. Admissibility

20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

21. The applicant maintained that the proceedings against him had been unfair as they had been held in absentia. He had not been notified in person of any acts, nor had he had any information during the criminal investigation and the court proceedings. During the retrial the domestic courts had not been able to obtain fresh evidence and the applicant had not been able to examine witnesses against him and on his behalf.

22. The Government accepted that the applicant had been tried and convicted in absentia. However, they argued that the domestic proceedings had not been unfair. They reiterated the findings of the Court of Appeal’s decision of 17 December 2007 that the applicant had been duly notified by the authorities. They also contended that he had been represented by a court-appointed lawyer and that his defence rights had been respected.

23. The Government further argued that a request for leave to appeal out of time was an effective remedy for a trial in absentia and that a fresh determination of the criminal charge was considered as a new trial. They referred to Articles 425, 427 and 428 of the Code of Criminal Procedure, which provided for an examination of an appeal by the Court of Appeal and the reopening of the judicial examination of a case by the Court of Appeal and which defined the competences of a court of appeal (see paragraph 17 above). Turning to the present case, they noted that the applicant’s complaints had been mainly directed at the probative value of the evidence and the conduct of the proceedings before the first-instance court. Therefore, the Court of Appeal by its decision of 17 December 2007 had duly decided on the merits of the case and the probative value of the evidence. It had considered that on the basis of the evidence obtained during the first set of proceedings the applicant was guilty of the charges.

24. The Court notes that the general principles as regards proceedings in absentia have been described in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81‑95, ECHR 2006‑II).

25. The Court further reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. In these circumstances the Court finds it unnecessary to examine the relevance of paragraph 3 to the case since the applicant’s allegations, in any event, amount to a complaint that the proceedings were unfair. It will therefore confine its examination to that point (see Shkalla, cited above, § 67).

26. In the present case it was not disputed by the parties that the applicant was tried and convicted in absentia. It has not been shown that the applicant had sufficient knowledge of the legal proceedings against him. In fact, it was established that he was informed of the conviction in absentia upon his extradition to Albania (see paragraphs 6-8 above).

27. The Court reiterates that, although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Sejdovic, cited above, § 82). Turning to the present case, the Court will examine whether the retrial proceedings entailed the possibility of a fresh factual and legal determination of the criminal charge against the applicant.

28. The Court notes that the Gjirokastër District Court granted the applicant’s request for leave to appeal out of time under Article 147 of the CCP. It further notes that after the applicant’s appeal the Gjirokastër Court of Appeal examined the merits of the case and upheld the applicant’s conviction in absentia. It relied on the evidence obtained during the first set of proceedings. The Court also notes that, as can be seen in the Court of Appeal’s decision and the applicant’s appeals to the Court of Appeal and the Supreme Court, the applicant’s lawyer made explicit requests to conduct a fresh examination of the evidence and to be allowed to cross-examine witnesses. However, the Court of Appeal did not carry out any fresh determination of the criminal charges against the applicant. The Court of Appeal found that the applicant had not put forward any new evidence to change the outcome of the proceedings held in absentia, without giving any other reasons whatsoever for its own failure to obtain new evidence and call witnesses, as requested by the applicant (compare and contrast Jones v. United Kingdom (dec.), no. 30900/02, 9 September 2003, and Makarenko v. Russia, no. 5962/03, § 139, 22 December 2009). It merely reiterated the reasoning and findings of the first set of proceedings.

29. In the light of the foregoing, the Court finds that the applicant did not in reality have the opportunity of obtaining a fresh determination of the merits of the charges against him by a court in proceedings compliant with the fairness guarantees of Article 6.

30. There has therefore been a violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATION OF THE CONVENTION

31. Lastly, the applicant also complained of a lack of reasons in the Supreme Court’s decision.

32. The Court also reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, ECHR 2017; see also Marini v. Albania, no. 3783/02, § 105, 18 December 2007). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see, among other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A, and Higgins and Others v. France, 19 February 1998, §§ 42-43, Reports of Judgments and Decisions 1998‑I). Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (see, mutatis mutandis, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 210, ECHR 2017 (extracts).

33. The Court observes in this connection that the applicant appealed to the Supreme Court on the same grounds as the appeal to the Court of Appeal. The Court considers that the limited reasons given by the Supreme Court in its de plano decision formula, however, implicitly indicated that the applicant had not raised one of the points of law provided for by the relevant domestic provision, which is an admissibility requirement for leave to appeal being granted (see paragraph 18 above). The Court observes that where a Supreme Court refuses to accept a case on the basis of the legal grounds for such a case not having been made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see Marini, cited above, § 106).

34. For the above reasons, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

36. The applicant did not submit a claim for just satisfaction.

37. The Court reiterates its findings in Shkalla (cited above, §§ 77-79), and Izet Haxhia (cited above, § 70) that when an applicant has been convicted in breach of her or his rights as guaranteed by Article 6 of the Convention, the most appropriate form of redress would be to ensure that the applicant is put as far as possible in the position in which she or he would have been had this provision been respected. The most appropriate form of redress would, in principle, be a new trial or the reopening of the proceedings if requested.

FOR THESE REASONS, THE COURT UNANIMOUSLY,

1. Declares the complaints concerning the unfairness of the proceedings in absentia admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithRobert Spano
RegistrarPresident

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