FOURTH SECTION
DECISION
AS TO THE ADMISIBILITY OF
Application no. 12310/04
by Bujamin ZYFLLI
against Albania
The European Court of Human Rights (Fourth Section), sitting on 27 September 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrK. Traja,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 27 January 2004,
Having regard to the factual information submitted by the Government at the request of the Judge Rapporteur pursuant to Rule 49 § 2 (a) of the Rules of Court and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Bujamin Zyflli, is an Albanian national who was born in 1945. At the time his application was lodged with the ECHR he was serving a sentence in Kruja Prison. He currently lives in the city of Devoll.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and the Government pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows.
1. The applicant’s submissions
On 3 April 1989 the applicant was arrested and charged with murder and the possession of firearms.
On 25 May 1989 the Korça District Court found him guilty and sentenced him to twenty years’ imprisonment.
From June 1989 to August 1992 the applicant served his sentence in Batër Prison, during the course of which he was required to do forced labour in a mine.
Between August 1992 and 1997 he was transferred to three different prisons.
Under the Amnesty Act of 13 November 1989 the applicant was excused from serving four years, ten months and two days of imprisonment.
Under a pardon issued on 28 December 1995 he was entitled to two years’ remission of sentence.
In 1996 the applicant argued that he had been excused from serving two years three months and six days of imprisonment under two pardons.
On 13 March 1997 he left prison, at a time when the State no longer had control over prisons when Albania was reduced to turmoil.
According to the applicant, an Amnesty Act of 1997 entitled him to two years’ remission.
On 11 September 2000 he gave himself up to the authorities in order to serve the rest of his sentence, which according to the applicant amounted to a few months.
On 5 February 2003 and 25 March 2004, following the applicant’s requests, the Kruja District Court granted him a total of six months’ remission for good behaviour.
In 2003 the applicant lodged two applications with the judge responsible for the execution of sentences for a reduction of sentence as follows: (a) nine months and sixteen days corresponding to three years’ forced labour while in Batër Prison; (b) two years, three months and six days under two pardons issued in 1996; (c) one month being the period he had spent in pre-trial detention; and (d) two years under the Amnesty Act of 1997. According to the applicant, his detention from 2001 onwards was unlawful.
On 22 October and 13 November 2003 the Kruja District Court decided to stay the proceedings in view of requests by the applicant for the cases to be struck out of the list. The applicant did not appeal against the above mentioned decisions.
2. The Government’s submissions
Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Government stated on 1 July 2004 that the applicant had eight months and fourteen days of his sentence left to serve.
They submitted that the applicant had been entitled to remission of sentence for the following periods: (a) two years under the pardon of 28 December 1995; (b) four years, ten months and two days under the Amnesty Act of 13 November 1989; (c) one month for his pre-trial detention; (d) six months granted by the domestic court for good behaviour; (e) one month and twenty days corresponding to thirteen days’ forced labour.
With regard to the applicant’s claim to a reduction in sentence on account of the forced labour, the Government submitted that the applicant’s prison file revealed that during three years in Batër Prison he had worked a total of thirteen days in a period between June and July 1989, entitling him to one month and twenty days’ remission.
As regards the remainder of the time the applicant spent in Batër Prison there was nothing in his prison file to indicate whether he had been certified fit to work in the mine. The Government observed, however, that the applicant had failed to lodge a request for certification of facts with the domestic courts in order to have his prison file restored.
According to the Government, the applicant did not receive a pardon in 1996 or qualify for remission under the Amnesty Act of 1997.
3. The applicant’s release
On 14 March 2005 the applicant was released from prison having served his sentence.
B. Relevant domestic law
1. Code of Civil Procedure
The relevant provisions of the Code of Civil Procedure read as follows:
Article 388
“When the creation, modification or cessation of a person’s personal or property rights depends on a fact and the document which certifies the existence of such fact has disappeared or has been lost and cannot be reissued or obtained in any other way, the interested party shall be entitled to request certification of such fact by a court decision.”
2. Pardons
(a) Under a pardon issued on 28 December 1995 the Albanian President, exercising his right to grant convicted prisoners a pardon, decided that the applicant was entitled to two years’ remission of sentence.
(b) In 1996 the Albanian President granted six pardons under his prerogative powers, but according to the Government, the applicant was not among the recipients.
3. Amnesty Act
Section 7 of the Amnesty Act of 13 November 1989 provided that all convicted prisoners at the time the Act entered into force were entitled to remission of a quarter of their sentence.
COMPLAINT
The applicant complained under Article 5 §§ 1 (a) and 5 of the Convention that between 2001 and 2005 his detention had no lawful basis. He further complained that he had no enforceable right to compensation.
THE LAW
Relying on Article 5 §§ 1 (a) and 5 of the Convention the applicant complained that his detention was not “lawful” and that he did not have an enforceable right to compensation.
Article 5 of the Convention, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
(a) The applicant
The applicant contested the reasoning of the domestic courts’ decisions, which he said was nonsensical. He denied making any request to the courts for a stay of the proceedings and added that he had sent several letters to the President of the Republic, the Albanian Ombudsperson and politicians claiming that his detention was illegal as the term of his sentence imposed by the courts had expired.
The applicant maintained that the authorities had failed to keep his prison file up to date during his numerous transfers to different prisons and that it been partially destroyed when the State lost control over the prisons during the period of turmoil in Albania. Consequently, his detention had been prolonged as a result of the negligence of the prison authorities. According to the applicant his detention from 2001 to 2005 amounted to detention sine titulo.
(b) The Court’s assessment
The Court notes at the outset that the applicant was detained as from 1989 following his “conviction by a competent court”. His detention therefore falls within the ambit of Article 5 § 1 (a). There can be no doubts that the sentence of imprisonment was lawful under Albanian law. Neither can it be said that the applicant’s detention was not for a purpose for which deprivation of liberty is permitted by Article 5 § 1 (a). Finally, there is no indication that his conviction had no factual basis or was arbitrary.
Notwithstanding the fact that the applicant’s detention took place in 1989, i.e. before the entry of the Convention into force in respect of Albania (2 October 1996), the situation with which the applicant was confronted persisted after aforementioned date. Thus, the Court has jurisdiction ratione temporis to examine whether the detention, in the light of his allegation that the length of his prison term has been miscalculated, was unlawful.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV). Moreover, it is for the national authorities, notably the courts, to interpret the national law (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
Turning to the present case, the Court observes that information supplied by the Government on the applicant’s prison file shows that there are records for only two months out of the total of three years he served in Batër Prison.
The Court notes that the responsibility for keeping proper prison records lies with the prison administration. Prisoners must not be prejudiced by their failure to keep such records and their period in detention should not be prolonged as a result.
In this connection, the Court notes that when confronted with a dispute concerning the exact circumstances of the case, a Contracting State cannot claim to have discharged its obligations under the Convention if it supplies incomplete records of prison files. In the absence of documents or other evidence to the contrary, the Court can give credence to the applicant’s allegations (see mutatis mutandis Messina v. Italy, judgment of 26 February 1993, Series A no. 257-H, § 31).
With this in mind, the Court considers that, in the present case, it is not confronted only with a factual dispute concerning the exact circumstances of the case but also an issue of law and so must reach its decision on the basis of the available decisions of the domestic courts establishing whether the applicant performed forced labour during his stay in Batër Prison or was excused on health grounds.
However, the Court observes that in Batër Prison the prisoners were required to perform forced labour in the mine only if they satisfied specific medical conditions.
The Court finds that it is the function of the domestic courts to establish whether the applicant could have benefited from the Amnesty Act of 1997 or whether he was included in the list of detainees who received a pardon in 1996.
The applicant did not, either before the Court of Appeal or in an appeal to the Supreme Court, challenge the calculation of the period he was required to serve or the lawfulness of the District Court’s decisions. Neither does the Court find any reason why at least one of these remedies should not have been attempted.
The Court concludes that the applicant has therefore failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention and for that reason his complaint under Article 5 § 1 must be considered inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention.
2. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 14, § 38; Vachev v. Bulgaria, no. 42987/98, § 78, ECHR 2004-VIII). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.
In this connection, the Court notes that in the present case it has found that the complaint under Article 5 § 1 must be considered inadmissible. It follows that the applicant’s related complaint under Article 5 § 5 cannot be examined by the Court.
For these reasons, the Court unanimously
Declares the application inadmissible.
F. Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy