KETA v. ALBANIA

THIRD SECTION

DECISION

Application no. 9227/19
Besnik KETA
against Albania

The European Court of Human Rights (Third Section), sitting on 11 June 2024 as a Committee composed of:

 Ioannis Ktistakis, President,
 Darian Pavli,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 9227/19) 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 5 February 2019 by an Albanian national, Mr Besnik Keta (“the applicant”), who was born in 1977, lives in Tirana and was represented by Mr A. Kasapi, a lawyer practising in Tirana;

the decision to give notice of the complaints concerning the applicant’s right to be informed promptly of the reasons for his arrest, and of his right to speedy review of the lawfulness of his arrest and detention to the Albanian Government (“the Government”), represented by their then Agent, Mr A. Metani, and subsequently by Mr O. Moçka, General State Advocate, 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 issues under Article 5 §§ 2 and 4 as regards the information provided to the applicant about the charges against him and the availability of the proceedings for challenging the lawfulness of his pre‑trial detention.

2.  The applicant was arrested in flagrante delicto for possession of narcotics on 22 December 2018 at 2 p.m. when two bags of white powder, suspected to be cocaine, were found on him by two police officers who stopped him on the street. Immediately after that, at 2.20 p.m., the police searched the applicant’s home where the applicant directed them to a hiding place where he kept narcotics and a small scale. The applicant was taken to the police station where he was questioned at 5.30 p.m. in the presence of his lawyer. He was informed of the charges against him and his rights, and stated that he understood them. He also stated that he had been a narcotics user for some time and that the narcotics found on him and in his home were for his personal use. The minutes of the applicant’s arrest were drafted on the same day at 7 p.m. The circumstances of the applicant’s arrest were described, and it was noted that the applicant had been suspected of committing the criminal offence of production and sale of narcotics, prescribed under Article 283 § 1 of the Criminal Code.

3.  A copy of these minutes was served on the applicant immediately and he signed them without comments.

4.  On 25 December 2018 the Tirana District Court placed the applicant under house arrest. On 16 January 2019 the Tirana Court of Appeal altered the District Court’s decision of 25 December 2018 by ordering the applicant’s pre-trial detention. The Appeal Court noted that the applicant had been found in possession of an amount of cocaine clearly not destined for personal use, and a small scale had also been found in his home. Such circumstances supported the suspicion that the applicant was involved in a criminal offence as a “drug dealer”. Therefore, his detention was necessary for prevention of re-offending.

5.  In his subsequent appeal to the Supreme Court the applicant complained that there had been no grounds for ordering his pre-trail detention, that he had not been informed immediately upon his arrest of the charges against him, and that his lawyer had not been given any document concerning the charges so as to prepare the applicant’s defence.

6.  The appeal was summarily dismissed by the Supreme Court on 10 April 2019 which held that the applicant had not relied on any of the grounds of appeal prescribed under Article 432 of the Code on Criminal Procedure. These grounds are that the criminal law has not been respected or has been erroneously applied; that there have been breaches which have resulted in the court’s judgment being declared invalid; and that there have been breaches of procedural rules which have affected the adoption of a judgment.

7.  In the main criminal proceedings against the applicant, he was convicted as charged and given a suspended sentence. These proceedings were concluded by a decision of the Tirana Court of Appeal on 13 May 2020.

THE COURT’S ASSESSMENT

8.  In his initial application, as well as in his reply to the Government’s observations, the applicant also complained under Article 6 §§ 1 and 3 of the Convention about violation of various aspects of his defence rights in the main criminal proceedings against him. At the communication stage these complaints were declared inadmissible by the President of the Section, sitting as a single judge (under Rules 27A § 2 (a) and 54 § 3 of the Rules of Court read in conjunction with Rule 12), and consequently, the Government were not given notice of these complaints. Such decision is final (Article 27 § 2 of the Convention and Rule 54 § 3) and the Court therefore cannot re-examine those complaints (see Mazepa and Others v. Russia, no. 15086/07, §§ 61-62, 17 July 2018, and Korporativna Targovska Banka AD v. Bulgaria, nos. 46564/15 and 68140/16, § 115, 30 August 2022).

9.  The applicant complained under Article 5 § 2 of the Convention that the domestic authorities had failed to inform him promptly of the reasons for his arrest and the charges against him. The Court notes, however, that the Government submitted that the applicant had been arrested in flagrante delicto in possession of narcotics and that he, himself, had led the police officers to a hiding place in his home where he kept narcotics and a small scale. The applicant did not contest those facts. The Court considers that in these circumstances the applicant cannot claim that he did not understand why he was arrested and taken to the police station (compare Dikme v. Turkey, no. 20869/92, § 54, ECHR 2000-VIII). Further to this, the applicant was questioned by the police in the presence of his lawyer only a few hours after he had been stopped by the police officers on the street and informed of the charges against him. Lastly, in the minutes of his arrest drawn up on the same day, the applicant was again informed of the criminal charges against him. These minutes were immediately served on him, and he signed them.

10.  Having regard to the foregoing, and bearing in mind that Article 5 § 2 does not require that reasons for an arrest be given in any particular form, the Court concludes that the applicant must be deemed to have been aware of the reasons of his arrest at the time of or shortly after his arrest (compare Döner and Others v. Turkey, no. 29994/02, §§ 47-49, 7 March 2017.

11.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

12.  The applicant further complained under Article 5 § 4 of the Convention that he was prevented from having the lawfulness of his detention speedily decided by a court due to the alleged non-functioning of the Supreme Court and of the Constitutional Court.

13.  The Court reiterates that Article 5 § 4 of the Convention entitles an arrested or detained person to bring proceedings for review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 128, 15 December 2016).

14.  As to the case at issue, the Court firstly notes that the applicant’s pre‑trial detention was ordered by a judicial body, namely the Tirana Court of Appeal. The Court reiterates further that Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention (see Stevan Petrović v. Serbia, nos. 6097/16 and 28999/19, § 177, 20 April 2021). Nevertheless, a State which institutes such a system must in principle accord to the detainees the same guarantees on appeal as at first instance (see Fodale v. Italy, no. 70148/01, § 39, ECHR 2006‑VII).

15.  In the Albanian system, an appeal to the Supreme Court is, in principle, possible against second-instance judicial decisions. However, such appeals must be limited to certain grounds, prescribed by Article 432 of the Code of Criminal Procedure. Since the applicant did not rely on any such grounds, his appeal was dismissed (see paragraph 6 above). In that connection, the Court reiterates that States may limit access to the higher courts and that conditions of admissibility of an appeal on points of law or of an appeal to a superior court – such as a Supreme Court – may be stricter than for an ordinary appeal (see Zubac v. Croatia [GC], no. 40160/12, § 82, 5 April 2018). Such limitations could be imposed, inter alia, by limiting the grounds of appeal before such courts.

16.  In his appeal against the decision ordering his detention, the applicant complained that there was no reasonable suspicion that he had committed a criminal offence and no grounds for his detention, that he had not been informed immediately upon his arrest of the charges against him, and that his lawyer had not been given any document concerning the charges so as to prepare the applicant’ defence (see paragraph 5 above). The Court notes that the Tirana Court of Appeal provided sufficient and adequate reasons for ordering the applicant’s pre-trial detention (see paragraph 4 above).

17.  Lastly, the period of less than three months for the Supreme Court to decide the applicant’s appeal does not appear excessive, given that the standard of “speediness” is less stringent when it comes to proceedings before the court of appeal (see Starokadomskiy v. Russia, no. 42239/02, § 80, 31 July 2008, with further references).

18.  Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 July 2024.

 Olga Chernishova Ioannis Ktistakis
 Deputy Registrar President