THIRD SECTION
DECISION
Application no. 68393/17
David GJOKEJA
against Albania
The European Court of Human Rights (Third Section), sitting on 19 September 2023 as a Committee composed of:
Georgios A. Serghides, President,
Darian Pavli,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 68393/17) 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”) on 12 September 2017 by an Albanian national, Mr David Gjokeja, who was born in 1967 and is detained in Peqin (“the applicant”) who was represented by Mr N. Pjetra, a lawyer practising in Tirana;
the decision to give notice of the complaints concerning the fairness of the criminal proceedings against the applicant to the Albanian Government (“the Government”), represented by their Agent, Mr O. Moçka, State Advocate General, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicant’s trial and conviction in absentia for murder in 2006.
2. In the trial proceedings, in which he was sentenced to life imprisonment, the applicant was represented by a lawyer appointed by his family. In 2016, the applicant was arrested while crossing the Albanian border to Greece and was made aware of his conviction. The applicant subsequently lodged requests for leave to appeal out of time before domestic courts in view of his trial and conviction in absentia.
3. In 2017, while his request for leave to appeal out of time was still pending before the Supreme Court, the applicant lodged a complaint with the Constitutional Court regarding his trial in absentia. He relied on that Court’s previous case-law which had allowed for such a constitutional complaint in similar circumstances. The Constitutional Court dismissed the complaint, reasoning that the applicant had not exhausted domestic remedies in that his request for leave to appeal out of time was still pending before the Supreme Court, thus not meeting the legal requirements and criteria for its assessment by the Constitutional Court.
4. On 22 September 2022, prior to communicating the application to the parties, the Court sent a letter to the applicant, enquiring whether there had been new developments in his case, especially in relation to the proceedings before the Supreme Court which were pending at the time of application. On 22 October 2022, the applicant through his representative, denied any such developments, including before the Supreme Court.
5. The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention about his trial and conviction in absentia.
THE COURT’S ASSESSMENT
6. The Government contended, among others, that the application must be rejected as an abuse of the right of individual application pursuant to Article 35 §§ 3 and 4 of the Convention, as the applicant had not informed the Court of the judicial developments initiated by him that occurred before and after lodging his application with the Court. In particular, the Government referred to and provided copies of the Supreme Court decision no. 875 of 9 November 2017 concerning the applicant’s request for leave to appeal out of time and his requests for revision of his criminal conviction lodged before domestic courts between 7 August 2017 and 29 March 2018. In his observations, the applicant acknowledged such development but provided no explanation for the missing information in relation to them.
7. The Court has reiterated that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
8. The Court observes at the outset that the applicant failed to inform the Court about the developments that occurred after submitting his application before the Court (see paragraph 4 above).
9. However, as submitted by the Government, and conceded by the applicant in his observations, the Supreme Court had in fact issued a decision in the applicant’s case on 9 November 2017, that is nearly two months after the application was lodged with this Court, in which it rejected the applicant’s appeal. In addition, it appears that the applicant had also initiated judicial proceedings for a revision of his criminal conviction on 7 August 2017. Such proceedings, which are directly relevant to the applicant’s case before the Court, had been concealed by him.
10. As noted above, according to Rule 47 § 7 of the Rules of Court applicants have the obligation to keep the Court informed of all circumstances relevant to the application. Although applicants are by no means expected to set out all possible information about a case in their application, it is their duty to present, at least, the essential facts at their disposal which are clearly of significant importance for the Court to be able to assess the case properly. In the present case, however, the applicant failed to meet this obligation. Against this background, the Court finds sufficient elements to establish that the applicant, by his failure to comply with his duty under Rule 47 § 7 of the Rules of Court, intentionally prevented the Court from having full knowledge of the facts of the case which concern the very core of the matter underlying his complaint under the Convention (see, Gross, §§ 35-37, cited above, and Gevorgyan and Others v. Armenia (dec.), no. 66535/10, §§ 31-37, 14 January 2020). The applicant did not provide any clarification as regards his motives for doing so.
11. On the basis of the foregoing, the Court upholds the Government’s preliminary objection that the applicant’s conduct constituted an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.
12. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 October 2023.
{signature_p_1} {signature_p_2}
Olga Chernishova Georgios A. Serghides
Deputy Registrar President