FOURTH SECTION
Application no. 14816/08
Arben TOPI against Albania
and 5 other applications
STATEMENT OF FACTS
THE FACTS
The applicants are Albanian nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 14816/08 was lodged on 14 February 2008 by Mr Arben Topi, who is currently serving a prison sentence. He is represented by Mr Ardian Kasapi, a lawyer practising in Tirana.
On 19 April 2000, following proceedings in absentia, the Durrës Court of Appeal convicted the applicant of several criminal offences and sentenced him to 15 years’ imprisonment. That decision became final on 7 December 2000 following the Supreme Court’s dismissal of the applicant’s appeal.
On 25 January 2006 the applicant was extradited to Albania.
On 1 March 2006 the applicant was officially informed of his conviction in absentia.
On 13 September 2007 the applicant lodged a constitutional appeal against the conviction in absentia.
On 22 October 2007 the Constitutional Court declared the appeal time-barred, the two-year time-limit having started to run on 7 December 2000.
2. Application no 48717/08 was lodged on 29 September 2008 by Mr Gazmir Karemani, who is serving a prison sentence. He is represented by Mr Halit Demaj, a lawyer practising in Vlora.
On 25 April 2001, following proceedings in absentia and following appeals lodged by other co-defendants, the Supreme Court convicted the applicant of several criminal offences and sentenced him to life imprisonment.
On 1 December 2006 the applicant was extradited to Albania. He was officially informed of his conviction in absentia on the same day.
(a) Application for leave to appeal out of time
On 8 December 2006 the applicant lodged an application with the Fier District Court (“the District Court”) for leave to appeal out of time.
On 25 January 2007 the District Court rejected the application finding that the Supreme Court’s decision of 25 April 2001 had become res judicata and, consequently, the applicant could not be tried twice for the same offence.
On 8 June 2007 and 2 July 2010, following the applicant’s appeals, the Vlora Court of Appeal and the Supreme Court, respectively, upheld that decision.
On 8 June 2011 the applicant lodged a constitutional appeal.
On 21 September 2011, the Constitutional Court, by majority, sitting as a full bench, dismissed the appeal finding it time-barred. As regards his application for leave to appeal out of time, the Constitutional Court relied on the Supreme Court’s unifying decision no. 1 of 20 January 2011 (see “Domestic courts’ practice concerning proceedings in absentia” below).
(b) Constitutional appeal proceedings
On an unspecified date in 2007 the applicant also lodged a constitutional appeal complaining about his conviction in absentia.
On 25 September 2007 the Constitutional Court dismissed the appeal as having been lodged out of time, the two-year time-limit having started to run on 25 April 2001.
3. Application no 33158/11 was lodged on 13 May 2011 by Mr Ilir Trushi, who lives in Korça. He is represented by Mr Simon Vorfi, a lawyer practising in Tirana.
The applicant had been living with his grandparents since he was two years of age.
Between 2004 and 2005 the applicant and his grandparents concluded a number of contracts, according to which the applicant bought real estate from the grandparents. The contracts of sales were subsequently registered with the Office for the Registration of Immovable Properties, registration certificates having been submitted by the applicant.
On 5 September 2005 the grandparents lodged a civil claim requesting the annulment of the above contracts on the grounds that they had been defrauded.
On 23 January 2006, in proceedings in absentia, the Korça District Court examined the request. It found that the contracts had been entered into as a result of fraud committed by the applicant. Consequently, it annulled the sale contracts. That judgment became final on 8 February 2006, no appeal having been filed against it. On 2 March 2007 the District Court rectified some errors in the above judgment.
On an unspecified date the applicant lodged an application for leave to appeal out of time.
On 5 November 2007 the District Court accepted that the applicant had been living abroad at the time of the proceedings in absentia, but rejected the application on the ground that the summonses had been properly notified to the applicant’s official address. The applicant appealed.
On 24 December 2007 and 4 December 2009 the Court of Appeal and the Supreme Court, respectively, rejected his appeals.
On 24 January 2011 the Constitutional Court, following the applicant’s constitutional appeal, declared the appeal inadmissible.
4. Application no 57456/11 was lodged on 25 August 2011 by
Mr Blerim Muça, who is currently living in Rrogozhina. He is represented by Mr Vangjel Muzina, a lawyer practising in Tirana.
On 1 November 1999 the Kavaja District Court (“the District Court”) found the applicant not guilty as charged and ordered his release. He had attended the trial and was represented by a lawyer of his own choosing (A.). The prosecutor appealed.
On an unspecified date the applicant left Albania. It would appear that he was not informed of the prosecutor’s appeal, but that lawyer A was so informed.
On 28 February 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision and remitted the case for re-examination. The applicant was represented by lawyer A.
On an unspecified date in 2000 the Supreme Court dismissed A’s appeal.
On 26 December 2000, in retrial proceedings, the District Court convicted the applicant in absentia of premeditated murder and sentenced him to 23 years’ imprisonment. Even though the applicant was represented by lawyer A, the decision stated that the lawyer had been appointed by the court. Two other co-defendants appealed.
On 10 September 2001 and 14 December 2001 the Court of Appeal and the Supreme Court, respectively, upheld the decision. The applicant was represented by a new court-appointed lawyer.
On 14 April 2004 the applicant’s mother appointed another lawyer to make an application for review, which was subsequently rejected by the Supreme Court.
On 8 July 2005 the applicant was informed of his conviction in absentia by his family members. He made an application to appeal out of time against the decision of 26 December 2000, arguing that he had never been informed of his conviction in absentia since he had been living abroad.
On 4 November 2005, 29 September 2006 and 9 July 2010 the District Court, the Court of Appeal and the Supreme Court, respectively, dismissed his application. The domestic courts held that the applicant should have known of the proceedings since he had been represented by a lawyer of his own choosing, A, who had been informed of the prosecutor’s appeal and, since his mother had appointed a lawyer to make and application for review.
Judge A. H, who had been a member of the District Court’s bench of
26 December 2000, also sat in the District Court’s bench of 4 November 2005 that dismissed his application. Judges V. C and Sh. M, who had been members of the Court of Appeal’s bench of 10 September 2001, also sat in the Court of Appeal’s bench of 29 September 2006 that rejected his appeal.
On 16 March 2011 the applicant’s lawyer was informed of the Constitutional Court’s decision which had dismissed the applicant’s constitutional appeal. The Constitutional Court, relying on the knowledge of lawyer A and his mother, stated that there existed no exceptional circumstances which had prevented the applicant from attending the proceedings.
5. Application no 72359/11 was lodged on 31 October 2011 by Mr Vladimir Malo who is currently serving a prison sentence. He is represented by Mr Sokol Luci, a lawyer practising in Tirana.
On 9 July 2002, following proceedings in absentia, the Gjirokastër District Court convicted the applicant of several criminal offences and sentenced him to 25 years’ imprisonment. Three other co-defendants, whose requests for the use of the summary procedure had been granted, were also found guilty.
On 7 October 2002 the Gjirokastër Court of Appeal upheld the decision in absentia.
On 10 October 2007, upon the applicant’s extradition to Albania, the District Court accepted his application for leave to appeal out of time.
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 “The Supreme Court’s practice concerning summary procedure” section below). Secondly, he requested that fresh examination of evidence be conducted in his presence and that a number of witnesses be questioned.
On 17 December 2007 the Gjirokastër Court of Appeal upheld the applicant’s conviction in absentia. The court ruled that the applicant did not put forward new evidence which would change the outcome of the proceedings in absentia. His request was 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 witnesses’ statements made in 2001 and 2002.
On 5 March 2010 the Supreme Court, following the applicant’s appeal complaining of a breach of his right to have witnesses questioned and evidence re-examined, dismissed the appeal finding that it lacked any grounds of appeal as prescribed by law.
On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court.
On 9 May April 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision which had declared his appeal inadmissible.
6. Application no 72361/11 was lodged on 7 November 2011 by Ardit Hysi, who is currently serving a prison sentence.
On 10 November 2005, following proceedings in absentia, the Gjirokastër Court of Appeal convicted the applicant of several criminal offences and sentenced him to 17 years’ imprisonment. That decision became final on 9 February 2007 following the Supreme Court’s dismissal of the applicant’s lawyer’s appeal.
On an unspecified date the applicant was extradited to Albania.
On 3 May 2007 the Gjirokastër District Court accepted the applicant’s request to appeal out of time. Consequently, the applicant lodged an appeal against his conviction in absentia.
By a final decision of 7 October 2009 the Supreme Court upheld the applicant’s conviction, ruling that it had become res judicata and that the facts and law of the case had been previously examined.
On 9 May 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision to dismiss his appeal.
B. Relevant domestic law and practice
1. The Constitutional Court Act
The relevant provision of the Constitutional Court Act (Law on organisation and operation of the Constitutional Court of the Republic of Albania no. 8577 dated 10 February 2000) reads as follows:
Section 30
“1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law.
2. An individual’s appeal claiming a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation. If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the decision of the last instance body”.
Constitutional Court’s practice as regards the calculation of the two-year time-limit
In its decision no. 30 of 26 November 2009 (no. 30/09) the Constitutional Court examined an appellant’s request regarding the unfairness of the proceedings and his conviction in absentia, after his application for leave to appeal out of time had been rejected as time-barred by the Tirana District Court, the appellant not having appealed against that court’s decision. In its decision, the Constitutional Court did not examine the question of the calculation of the two-year time-limit for filing a constitutional appeal in respect of the unfairness of the proceedings. It would appear that the starting date was the day on which the appellant had been notified of his conviction in absentia, namely 4 June 2008. The applicant had been convicted in absentia by a final court decision of 24 March 2000.
2. Code of Criminal Procedure (CCP)
(a) Leave to appeal out of time
The relevant provisions of the CCP concerning an application for leave to appeal out of time are as follows:
Article 48 – Counsel appointed by the defendant
“1. The defendant has the right to appoint no more than two counsel.
2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel.
3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”.
Article 147 – Leave to appeal out of time
“1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure.
2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge.
3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...)
...
5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case.
6. An appeal may be lodged with the Court of Appeal against the decision refusing an application for leave to appeal out of time”.
Article 410 – The defendant’s appeal
“...
2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law.
...”
Article 420 – Dismissal of the appeal
1. An appeal is rejected:
(a) if it is lodged by a person who does not have locus standi;
(b) if the decision cannot be appealed against;
(c) if there has been a disregard of the provisions concerning the form, submission, mailing, notification and time-limits;
(d) if the appeal has been revoked.
...”
Domestic courts’ practice concerning proceedings in absentia
In its unifying decision no. 2 of 14 October 2002 the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the defendant or a lawyer appointed by him, within ten days of the date on which the defendant was effectively informed of the decision given in absentia. This right could not be exercised by the defendant’s family members if the defendant was not realistically aware of the decision in absentia. The application for leave to appeal out of time should be examined by the District Court, sitting in a three-judge formation. The District Court’s decision could be appealed to the Court of Appeal and, thereafter, to the Supreme Court.
In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010, the Constitutional Court decided that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it can be established that this constituted an explicit manifestation of the defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family members. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family members.
In its unifying decision no. 1 of 20 January 2011, the Supreme Court Joint Benches examined three issues concerning an application for leave to appeal out of time. The appellant had been convicted in absentia. His lawyer, who had been appointed by family members, was granted leave to appeal out of time against the District Court’s judgment. The lawyer’s appeals to the Court of Appeal and the Supreme Court were rejected. Upon extradition, the appellant was granted leave to appeal out of time against the Court of Appeal’s judgment. He was represented by a lawyer of his own choosing.
In the first place, the Supreme Court Joint Benches ruled that, when an appeal had been previously examined and rejected by a criminal bench of the Supreme Court, in proceedings in absentia, neither the defendant nor his lawyer could lodge an application for leave to appeal out of time against a Court of Appeal’s judgment on the grounds that the defendant had not been informed of that judgment (me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit). The same reasoning would apply to an application for leave to appeal out of time against a District Court’s judgment when the appeal has already been examined by the Court of Appeal.
Secondly, the Supreme Court Joint Benches held that only when a higher court dismissed an appeal as having been time-barred, without examining the merits or the lawfulness of complaints raised in the appeal, would the parties have a right to lodge an application for leave to appeal out of time in accordance with Article 147 § 1 of the CCP.
The third finding concerned the effect of an appeal lodged by a defendant, in the absence of a co-defendant’s appeal, on the latter’s application for leave to appeal out of time. The judgment, in so far as relevant, reads as follows:
“The CCP ... provides for and allows the joint trial of several defendants by the same bench, within the same set of proceedings, in order to ensure judicial economy and increased judicial efficiency.
Upon completion of judicial examination, the court delivers one single judgment in respect of all defendants. This does not imply collective responsibility, but, within the meaning of Article 383 the CCP, ‘[the judgment] contains a summary of facts and evidence on which it is based, as well as the reasons for which the court dismisses the remainder of evidence’ as regards each defendant. In this context, despite the existence of one single judgment, its content consists of “several decisions”, which describe the circumstances and evidence on the basis of which the court qualified the criminal offence attributed to each defendant and identified the applicable articles.
The general rules concerning [the right to] appeal, as laid down in Article 408 onwards of the CCP, define, inter alia, the parties who could lodge an appeal as well as the scope of the examination of the case. They consider the appeal to be of an individual nature and to result in defined consequences only in respect of the person that files the appeal. In the event of a number of [co]defendants, the individual character of the appeal continues to prevail. However, owing to the specificity of the court’s judgment, domestic law provides for an exception to the general rule, as laid down in Article 416 of the CCP, which states that, ‘the appeal lodged by a defendant, if it is not grounded on personal motives, is also valid for the co-defendants’. The above provision favours the position of a defendant who has not lodged an appeal, since he could benefit from the appeal lodged by a co-defendant, as a result of which the court, depending on the circumstances, may quash the judgment irrespective of the lack of appeal by the [concerned] defendant.
... On the basis of the above provision, the [defendant’s] appeal which has been examined by the court, strips the co-defendant, who did not lodge an appeal of his own motion or through his lawyer, of the opportunity to seek leave to appeal out of time, as it shall be considered that he availed himself of the right to appeal. Consequently, when a court is seized to examine a [defendant’s] appeal and decides on the lawfulness of complaints raised therein, the [co]defendant does not have a right to seek leave to appeal out of time (i pandehuri nuk legjitimohet të kërkojë rivendosje në afat).
Only when a [defendant’s] appeal has been declared inadmissible on the strength of Article 420 of the CCP, can a co-defendant, who did not lodge an appeal, seek leave to appeal out of time against a court’s judgment.”
(b) Summary procedure
The relevant provisions as regards the conduct of the summary procedure have been described in Cani v. Albania, no. 11006/06, § 34, 6 March 2012.
The Supreme Court’s practice concerning summary procedure
The Supreme Court Joint Benches’ unifying decision no. 2 of 29 January 2003 stated, inter alia, that the application of the summary procedure could not be granted in respect of a defendant who was being tried in a set of proceedings which was also directed against other co-defendants who had not sought the use of the summary procedure. Only when the disjoinder of cases was allowed in accordance with the law, could the use of the summary procedure be granted in respect of the defendant who had sought its application.
3. Code of Civil Procedure
Articles 151 and 458 provides for the parties’ right to seek leave to appeal out of time, when, under reasonable grounds, they failed to lodge an appeal within the prescribed time-limit. The application for leave to appeal out of time is lodged with the court that delivered the judgment. An appeal lies against the court’s decision as regards the application for leave to appeal out of time.
COMPLAINTS
1. Application no. 33158/11: The applicant complains under Articles
6 § 1 and 13 of the Convention that he was denied access to the Constitutional Court and that his trial in absentia breached Article 6 §§ 1, 2 and 3 of the Convention.
He also complains that there has been a breach of Article 2 of Protocol No 7 to the Convention since the Court of Appeal refused the motion filed by the lawyer chosen by his father.
2. Application no. 48717/08: The applicant complains about his trial in absentia.
3. Application no. 33158/11: The applicant complains under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 about his trial in absentia.
4. Application no 57456/11: The applicant complains under Article
6 § 1 of the Convention about his trial in absentia and about a lack of impartiality of the bench of the District Court of 4 November 2005 and of the Court of Appeal of 29 September 2006.
5. Application no. 72359/11: The applicant complains under Article
6 §§ 1 and 3 (c) and (d) of the Convention about his trial in absentia. He also complains that he had no right to question witnesses or request the examination of evidence in the re-hearing proceedings and that the Supreme Court’s decision lacked reasons.
6. Application no. 72361/11: The applicant complains under Article
6 §§ 1 and 3 (c) and (d) of the Convention about his trial in absentia.
QUESTIONS TO THE PARTIES
In respect of application no. 14816/08
By declaring inadmissible the applicant’s constitutional appeal as having been filed out of time, has there been a breach of Article 6 of the Convention as regards the applicant’s right of access to court? In particular, when does the two-year time-limit start to run when a constitutional appeal against a conviction in absentia is lodged with the Constitutional Court?
In respect of applications nos. 14816/08, 48717/08, 57456/11; 72359/11, 72361/11
Having regard to the fact that the applicants were tried and convicted by the Albanian courts in absentia, do those facts disclose a breach of Article
6 of the Convention (see, in this connection, Shkalla v. Albania, no. 26866/05, 10 May 2011; and Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006 II)?
Has there been a fresh determination of the merits of the criminal charges against the applicants, following the domestic courts’ granting of their applications for leave to appeal out of time in respect of applications nos. 72359/11 and 72361/11? 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.
In respect of application no. 33158/11
Has there been a breach of the applicant’s right of access to court under Article 6 § 1 of the Convention?
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