Communicated on 19 January 2018
SECOND SECTION
Application no. 70656/17
Ndrec KOLA
against Albania
lodged on 21 September 2017
SUBJECT MATTER OF THE CASE
The application concerns the conduct of the retrial proceedings, the lack of reasons in the domestic courts decisions and the manner of calculation of the time-limit by the Constitutional Court following the new amendments made to the Act “On the organisation and functioning of the Constitutional Court” (“the Constitutional Court Act”).
The applicant was convicted by a final decision of 11 December 2002 of several criminal offences and sentenced to nineteen years’ imprisonment. The criminal proceedings were held in absentia. The applicant became aware of the proceedings against him on 4 November 2014, when he was extradited from Greece to Albania. On 24 November 2014 an application for leave to appeal out of time was granted to the applicant. On 12 March 2015 the Court of Appeal retried the applicant, in his presence, and upheld the conviction. On 28 January 2016 the Supreme Court rejected the applicant’s appeal. On 10 May 2017 the applicant lodged a constitutional appeal with the Constitutional Court complaining about the unfairness of the proceedings. On 4 July 2017 the Constitutional Court rejected the appeal as having been lodged out of time, the new four months’ time-limit to lodge a constitutional appeal as provided for in the Constitutional Court Act, as amended, starting to run from the date of pronouncement of the Supreme Court’s decision on 28 January 2016.
The applicant complains of a violation of his rights under Article 6 §§ 1 and 3 of the Convention given that the first set of proceedings against him were held in his absence and that he was not given the opportunity to have a lawyer of his own choosing. He also complains that during the retrial proceedings he was not given the opportunity to challenge/submit any evidence. He further complains about a breach of access to the Supreme Court and the Constitutional Court, and lack of reasons in the domestic courts’ decisions.
QUESTIONS tO THE PARTIES
1. Has there been a fresh determination of the merits of the criminal charges against the applicant, following the domestic court’s granting of his application for leave to appeal out of time (see Sejdovic v. Italy ([GC], no. 56581/00, §§ 81‑95, ECHR 2006‑II, 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)? The Government are requested to provide detailed information as regards the subsequent conduct of domestic courts’ proceedings upon granting an application for leave to appeal out of time.
2. Were the domestic courts decisions duly reasoned in accordance with Article 6 § 1 of the Convention?
3. Has there been a breach of the applicant’s right of access to the Court within the meaning of Article 6 § 1 of the Convention on account of the Constitutional Court’s dismissal of his constitutional claim for being lodged out of time? In particular was the Constitutional Court’s approach in interpreting the new procedural rules relating to time-limits excessively formalistic given the fact that the new amendments have entered into force only on 1 March 2017 (see for example, Shkalla v. Albania, no. 26866/05, §§ 48-54, 10 May 2011?
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