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FOURTH
SECTION
CASE OF XHERAJ v. ALBANIA
(Application
no. 37959/02)
JUDGMENT
STRASBOURG
29
July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Xheraj v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence Early, Section
Registrar.
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37959/02) 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”) by an Albanian national, Mr Arben Xheraj (“the
applicant”), on 20 September 2002.
- The
applicant was represented by Mr D. Bengasi, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their Agents, Mr S. Puto and Ms S. Meneri.
- The
applicant complained under Article 6 §§ 1 and 3 of the
Convention that the proceedings to review his acquittal, which had
become final, had been unfair as neither he nor his counsel was
informed of the hearings and they were therefore unable to present
his case. Without giving reasons, the applicant alleged a
violation of Article 10 of the Convention. Lastly, he
complained under Article 4 of Protocol No. 7 of a breach of the ne
bis in idem principle in that the Supreme Court's judgment of
20 June 2001 constituted a second
criminal sanction for the same offence, namely murder.
- On
8 September 2005 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
- The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and is currently serving a sentence in
Vicenza Prison in Italy.
A. The
proceedings that led to the applicant's conviction
- In
1995 the prosecutor's office for the city of Durrës charged the
applicant with murder on the basis of evidence from the victim's
father, who maintained that he had been told by the victim, before
his death, that the applicant was one of the murderers. The
investigation in respect of three other suspects had been
discontinued.
- The
applicant's father, when interviewed by the police, stated that the
applicant had been travelling to Italy with two other persons on the
day when the murder was committed.
- On
27 November 1996 the applicant, in absentia, was
found guilty of murder under Article 76 of the Criminal Code and
was sentenced to 20 years' imprisonment by the
Durrës Court of Appeal. His appeal to the then Court of
Cassation was declared inadmissible on 10 March 1997.
B. The proceedings that led to the applicant's
acquittal
- Following
the signature of an authorisation form by the applicant's father on
10 December 1997, under Article 450 of the Code of Criminal Procedure
(“the CCP”), the applicant's counsel sought
judicial review of the Court of Appeal's judgment by a request
bearing the same date. The application for judicial review reached
the District Court on 11 December 1997.
- The
judicial review request stated that new evidence had emerged in
favour of the applicant. Firstly, from the
autopsy report
it transpired that the victim had been stabbed in the heart and had
died instantly; consequently, from a scientific point of view the
victim had not been able to communicate. Secondly, two
witnesses stated that they had been travelling with the applicant
early in the morning to take the ferry to Italy at the time when the
murder had occurred.
- On
13 December 1997 the applicant authorised the same lawyer, who had
already been appointed by his father on 10 December 1997, to
represent him in the domestic proceedings.
- By
means of a letter of 26 August 1998 to the district prosecutor, the
Directorate of Investigation and Inspection at the Prosecutor
General's Office forwarded the case file of the applicant and added
that
“the request for judicial review meets the legal
requirements (kërkesa për rishikimin e vendimit plotëson
kriteret ligjore)”.
It
requested the district prosecutor to examine objectively the new
pieces of evidence to be submitted to the District Court.
- The
district prosecutor, who happened to be the same person who had
attended the first trial, attended the hearing and requested the
dismissal of the case pursuant to Article 328 (dh) of the CCP, which
states that the case may be dismissed “if it transpires that
the defendant has not committed the criminal offence or it cannot be
proved that he committed the offence.”
- On
27 November 1998 the Durrës District Court declared admissible
the applicant's application for judicial review. The court, deciding
on the merits and after examining the
new evidence and taking into account the prosecutor's office request,
quashed the Durrës Court of Appeal's judgment of 27 November
1996 (see paragraphs 9 above) and acquitted
the applicant on 14 December 1998 (“the acquittal decision”).
- No
appeal was lodged against the judgment within the 10 days allowed and
it therefore became final on 24 December
1998.
C. The prosecutor's request for leave to appeal out of time
- On
8 October 1999 the prosecutor at the Durrës Court of Appeal
(“the appeal prosecutor”) lodged a request for leave to
appeal out of time against the acquittal decision
with the Durrës District Court. The appeal prosecutor submitted
as the ground for his request that shortcomings on the part of the
district prosecutor had been observed. Invoking Article 26 § 1
of the CCP about the resignation of a prosecutor in cases of lack of
impartiality, whose content makes reference to the resignation of a
judge under Article 17 of the CCP, the appeal prosecutor maintained
that the district prosecutor who had attended the first trial
proceedings should not have participated in the review proceedings.
Article 17 § 1 (c) of the CCP provides that a judge must resign
“when he has provided advice or expressed opinion about the
subject of proceedings.”
- The
appeal prosecutor contended that the victim's family, who had been an
injured party to the proceedings, had not been informed about the
acquittal proceedings in accordance with Article 137 of the CCP. The
appeal prosecutor became aware of the acquittal decision on an
unspecified date before the end of September 1999, when the victim's
family's complaint about the acquittal decision was forwarded to
other authorities.
- On
21 October 1999 the Durrës District Court, in the
applicant's absence and in the presence of an officially appointed
defence lawyer, despite the existence of a lawyer of the applicant's
own choosing (see paragraph 12 above), granted the prosecutor leave
to appeal out of time.
- On
an unspecified date the lawyer officially appointed in the
proceedings before the Durrës District Court lodged an appeal
with the Durrës Court of Appeal challenging the above-mentioned
decision because the applicant had not been notified and the decision
had not been served on him in accordance with Article 414 of the CCP.
Meanwhile, in accordance with the District Court's decision of 21
October 1999, the appeal prosecutor filed an appeal against the
acquittal judgment.
- On
15 December 1999 the Durrës Court of Appeal rejected the
applicant's officially appointed lawyer's appeal on the ground that
the decision granting the prosecutor's request for leave to appeal
out of time was not subject to appeal by virtue of Article 147
§ 5 of the CCP, as it did not put an end to the criminal
proceedings. It also rejected the prosecutor's
appeal as it had not been notified explicitly to the applicant in
accordance with Article 414 of the CCP. On an unspecified date the
prosecutor appealed to the Supreme Court.
- On
19 April 2000 the Criminal Division of the Supreme Court quashed the
Durrës Court of Appeal's decision of 15 December 1999. It found
that the requirements concerning the notification of court decisions
to the applicant's officially appointed lawyer had been satisfied
since the applicant was considered a fugitive. Accordingly, the court
granted the prosecutor's request for leave to appeal out of time
against the acquittal decision and remitted the case to the Durrës
Court of Appeal for a fresh examination.
D. The prosecutor's late appeal
- According
to the submissions of the appeal prosecutor to the Durrës Court
of Appeal, the acquittal had to be considered null and void in so far
as the new evidence adduced by the applicant, even if it gave him an
alibi, had
been submitted too
late. Moreover, the prosecutor who had participated in the judicial
review proceedings had also taken part in the first trial. Lastly, it
was alleged that the applicant's counsel lacked standing to initiate
proceedings for judicial review as the applicant had signed a form of
authority two days after the application for judicial review had been
lodged.
- On
18 December 2000 the Durrës Court of Appeal confirmed the
reasoning set out in the acquittal decision of 14 December 1998 and
dismissed the prosecutor's appeal. The officially appointed lawyer
was notified of the decision. On an unspecified date, citing the same
grounds of appeal as he had lodged with the Durrës Court of
Appeal, the prosecutor appealed to the Supreme Court, claiming that
the acquittal decision was null and void.
- On
20 June 2001 the Criminal Division of the Supreme Court upheld the
prosecutor's grounds of appeal and, deciding on the merits, quashed
the acquittal decision. It held that there had been a breach of the
CCP's provisions relating to the applicant's counsel's legal capacity
to lodge an application for judicial review on 11 December 1997. It
found that he was appointed to act by the applicant on 13 December
1997 i.e. 2 days after he had filed the request with the District
Court. The judgment was notified to the officially appointed lawyer.
- In
2002 the applicant, who from 1999
onwards had been serving a sentence of 16 years' imprisonment
in Vicenza Prison (Italy), imposed by the Italian courts for
international drug trafficking, was notified of
the Supreme Court's judgment that had led to the review of his
acquittal, following a request by the Albanian authorities for his
extradition.
E. Constitutional Court proceedings
- On
13 February 2002 the lawyer appointed by the applicant, who had
already acted for him in the judicial review proceedings (see
paragraph 12 above), lodged an appeal with the Constitutional Court,
alleging a violation of the applicant's constitutional right to a
fair trial and a breach of Article 6 §§ 1 and 3 (a) and (c)
of the Convention.
- In
his submissions before that court the applicant maintained that the
domestic court proceedings had been unfair on the grounds that
neither he nor the counsel of his own choosing had been informed of
the institution of proceedings and that he had been deemed to be a
fugitive despite the fact that he had appointed a lawyer, whose legal
capacity formed the basis of the prosecutor's grounds of appeal
against the acquittal.
- Moreover,
the applicant submitted that in view of the fact that the Albanian
authorities had addressed two requests to the Italian authorities for
his extradition to Albania, there was reason to believe that the
Albanian authorities had had the possibility of giving him notice of
the institution of proceedings and of serving the courts' decisions
on him.
- As
to the merits of the proceedings that led to the quashing of his
acquittal, the applicant maintained that his counsel's legal standing
was not open to challenge in so far as on 10 December 1997 his
father had authorised the lawyer to represent
the applicant before the domestic courts in the proceedings for
judicial review, and he himself had confirmed that authority on
13 December 1997.
- On
26 April 2002 the Constitutional Court decided de plano to
declare the applicant's appeal inadmissible as being outside its
jurisdiction.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Albanian Constitution
- The
Albanian Constitution, in its relevant parts, provides as follows:
Article 31
During criminal proceedings, everyone has the right:
a. to be notified immediately and in detail of the
charges brought against him, of his rights, and to have the
possibility to notify his family or relatives;
b. to have sufficient time and facilities to prepare his
defence;
c. to have the assistance of a translator free of
charge, when he does not speak or understand the Albanian language;
ç. to present his own case or defend himself
through the assistance of counsel of his own choosing; to communicate
freely and privately with him, as well as to be provided free legal
counsel when he does not have sufficient means;
d. to examine witnesses who are present and to request
the appearance of witnesses, experts and other persons who can
clarify the facts.
Article 32
1. No one shall be obliged to testify against himself or
his family or to confess his guilt.
2. No one shall be declared guilty on the basis of
evidence collected unlawfully.
Article 33
1. Everyone has the right to be heard before being
judged.
2. A person who is seeking to evade justice may not
avail himself of this right.
Article 34
No one shall be punished twice for the same criminal
offence or be tried again, except when the reopening of the case is
ordered by a higher court, in accordance with the law.
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in defending a criminal charge,
everyone has the right to a fair and public hearing, within a
reasonable time, by an independent and impartial court established by
law.”
Article 43
Everyone has the right to appeal against a court
decision to a higher court, save as otherwise provided in the
Constitution.
Article 142 § 3
“State bodies shall comply with judicial
decisions.”
Article 131
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final, complaints by
individuals alleging a violation of their constitutional rights to a
fair hearing, after all legal remedies for the protection of those
rights have been exhausted.”
B. The Code of Criminal Procedure
- The
relevant parts of the Code of Criminal Procedure (“the CCP”),
as in force at the material time, provided as follows.
- Article
26 § 1 of the CCP required a prosecutor to resign when there
were grounds to fear partiality in the cases envisaged under Article
17 of the CCP. Article 17 made reference to the resignation of a
judge from adjudicating an existing case. Article 17 § 1 (c)
required a judge to resign when he had given advice or expressed an
opinion on the subject of the proceedings.
- Article
48 of the Code of Criminal Procedure (“the CCP”) provided
that the defendant should choose his counsel by means of oral
submissions at a court hearing or an authority form to be sent by
registered mail. The defendant's relatives could also choose a lawyer
to represent the defendant who had been detained, arrested or
convicted and sentenced to imprisonment, by the above-mentioned
methods, unless the defendant had already chosen his representative.
- Article
58 of the Code of Criminal Procedure gave the injured party resulting
from the criminal offence or his heirs the right to request the
prosecution of the offender and compensation for damage. Article 409
permitted the injured party to file an appeal him/herself or through
his/her representative, in respect of criminal and civil aspects.
- Under Article 147 § 1 of the CCP, a party to
proceedings who had failed, owing to unforeseen events or force
majeure, to lodge an appeal against a judgment within the
prescribed time, could seek leave to
appeal out of time. Under Article 147 § 2 a defendant convicted
in absentia may be granted leave to appeal out of time against
a court decision, if he has established that he had no effective
knowledge of it. Under Article 147 §3, the request for
leave to appeal out of time had to be lodged within ten days of the
date on which the party was notified of the judgment. Under Article
147 § 5 the decision to allow a request for leave to appeal out
of time could be appealed against in conjunction with the decision on
the merits of the case.
- Under
Article 414 an appeal could be filed with the Court of Appeal within
10 days starting from the day of the pronouncement or notification of
the decision.
- Articles
449 and 451 of the CCP provided that an application for review of the
case on account of a newly discovered circumstance should be lodged
by a party to the proceedings with the same court that had delivered
the original judgment. Such an application should be lodged within
five years from the delivery of an acquittal judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (a)
and (c) OF THE CONVENTION
- The
applicant complained that the Supreme Court's judgment of 20 June
2001, delivered after his final acquittal, had constituted a
violation of his right to a fair trial in that the acquittal
decision, which had become final, was quashed. He also complained of
the fact that neither he nor the counsel of his own choosing was
promptly informed of the prosecutor's request for leave to appeal out
of time against the acquittal decision. He relied on Article 6 §
1 and 6 § 3 (a) and (c) of the Convention, the relevant parts of
which provide:
“.1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...”
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him.
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;”
...
A. Admissibility
- The
Government contended that the application was inadmissible, having
been lodged out of time. As the Constitutional Court had declared the
applicant's appeal inadmissible on 26 April 2002, the final decision
for the purposes of Article 35 of the Convention was in fact the
Supreme Court's decision of 20 June 2001, whereas the applicant had
filed his application on 20 September 2002.
- The
applicant submitted in reply, that an appeal to the Constitutional
Court was a domestic remedy to be exhausted within the domestic legal
order. Therefore, the Constitutional Court's inadmissibility decision
should be considered the final domestic decision.
- The
Court reiterates its findings in the Balliu v. Albania
admissibility decision (no. 74727/01), subsequently upheld in
Beshiri and Others v. Albania, (no. 7352/03, § 32,
22 August 2006), where it held that a complaint to the Albanian
Constitutional Court could be considered an effective remedy which
had to be used for the purposes of Article 35 of the Convention where
fair-trial issues arose. It considers that there are no reasons for
it to depart from that finding in the circumstances of the present
case.
- The
applicant did in fact avail himself of this remedy. The
Constitutional Court's decision is dated 26 April 2002 and the
applicant lodged his application with the Court on 20 September 2002.
He has therefore complied with the six-month time-limit prescribed in
Article 35 of the Convention.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Legal certainty: quashing of a final judgment
a. The parties' submissions
- The
applicant contended that his father initially appointed a lawyer to
act on his behalf by a form of authority signed on 10 December 1997.
That became part of the case file and should not have been ignored by
the domestic courts in respect of notification procedures vis-à-vis
the applicant. He added that the prosecutor did not have any legal
grounds (unforeseen events or force majeure) under
Article 147 § 1 of the CCP to request leave to appeal out of
time against the acquittal decision which had become final, as the
authorities had already been made aware of the judicial review
request by the letter of 26 August 1998 (see paragraph 13 above).
- As
to the incompatibility of the district prosecutor, who had previously
taken part in the proceedings that had led to the applicant's
conviction in 1996, the applicant maintained that the
incompatibilities of judges did not apply to prosecutors if they
attended proceedings at the same jurisdictional level.
- The
Government contended that the prosecutor's request for leave to
appeal out of time resulted from procedural violations attributable
to the District Court, which had not notified the victim's family of
the applicant's acquittal so that they could have filed an appeal
against the acquittal decision. The victim's family accidentally
became aware of that decision a few months later.
- In
the Government's opinion, another reason which contributed to the
prosecutor's late appeal was that the prosecutor who attended the
acquittal hearings at the District Court did not inform his
supervisors of the said proceedings.
- The
Government considered that since the domestic legislation provided
for the judicial review of a final decision and the procedure to
request leave to appeal out of time against a final court decision,
these steps could not be considered to violate the principle of legal
certainty under Article 6 § 1 of the Convention.
b. The Court's assessment
i. General principles
- The
Court reiterates that in the light of the Preamble to the Convention,
the rule of law is part of the common heritage of the Contracting
States, one of the fundamental aspects of which is the principle of
legal certainty, which requires, among other things, that where the
courts have finally determined an issue, their ruling should not be
called into question (see Brumărescu v. Romania [GC],
no. 28342/95, § 61, ECHR 1999 VII).
- Moreover,
the Court observes that the requirements of legal certainty are not
absolute. A departure from that principle is justified only when made
necessary by circumstances of a substantial and compelling character
(Ryabykh v. Russia, no. 52854/99, § 52,
ECHR 2003 IX) or if serious legitimate considerations outweigh
the principle of legal certainty (see Bratyakin v. Russia (dec.),
no. 72776/01, 9 March 2006).
- The
mere possibility of reopening a criminal case is prima facie
compatible with the Convention, including the guarantees of Article
6. It must be assessed in the light of, for example, Article 4 §
2 of Protocol No. 7, which expressly permits a State to reopen a
case due to the emergence of new facts, or where a fundamental defect
is detected in the previous proceedings, which could affect the
outcome of the case (see Nikitin v. Russia, no. 50178/99,
§ 54-57, ECHR 2004 VIII, and Savinskiy v. Ukraine,
no. 6965/02, § 23, 28 February 2006). Certain special
circumstances of the case may reveal that the actual manner in which
such a review was used impaired the very essence of a fair trial. In
particular, the Court has to assess whether, in a given case, the
power to launch and conduct a [...] review was exercised by the
authorities so as to strike, to the maximum extent possible, a fair
balance between the interests of the individual and the need to
ensure the effectiveness of the system of criminal justice (see
Bujniţa v. Moldova, no. 36492/02, § 21, 16
January 2007).
- The
relevant considerations to be taken into account in this connection
include, in particular, the effect of the reopening and any
subsequent proceedings on the applicant's individual situation and
whether the reopening resulted from the applicant's own request; the
grounds on which the domestic authorities revoked the finality of the
judgment in the applicant's case; the compliance of the procedure at
issue with the requirements of the domestic law; the existence and
operation of procedural safeguards in the domestic legal system
capable of preventing abuses of this procedure by the domestic
authorities; and other pertinent circumstances of the case (Radchikov
v. Russia, no. 65582/01, § 44, 24 May 2007).
ii. Application of the above principles to
the instant case
- The
Court observes, and it seems undisputed between the parties, that in
the present case a final judgment acquitting the applicant on all
charges was re-examined and quashed by granting the prosecutor's
request for leave to appeal out of time against the acquittal
decision (see, by contrast, Fadin v. Russia, no. 58079/00,
§ 34, 27 July 2006). The issue arises as to whether on the
basis of the facts of the case, and regard being had to the review
proceedings, the authorities struck, to the maximum extent possible,
a fair balance between the interests of the applicant and the need to
ensure the effectiveness of the system of criminal justice and thus
complied with Article 6.
- The
bulk of the prosecutor's request for leave to appeal out of time of 8
October 1999 concerned the breach of procedural safeguards in that
the injured party, i.e. the victim's family, had not been notified of
the acquittal decision. The Court notes that under Article 58 §
1 of the CCP the injured party may request the prosecution of the
offender and compensation for damage. Under Article 409 of the CCP,
the injured party may file an appeal, himself or through his legal
representative, in respect of criminal and civil aspects.
- The
Court regrets that the domestic court did not comply with the
notification requirements under Article 137 § 1 of the CCP.
However, it notes, on the basis of the documents submitted in the
case file, that there is no indication that the victim's family were
granted “injured party” status. Even assuming that the
victim's family had been granted “injured party” status
and had had vested interests with regard to any alleged criminal and
civil aspects, they did not lodge any appeal with the District Court
themselves or through their legal representative. Nor did they make a
request for leave to appeal out of time or directly take any
necessary action through the assistance of the prosecutor's office.
The victim's family chose another course. They filed a request with
other domestic authorities, i.e. the office of the President of the
Republic, which were not empowered to take any action whatsoever,
other than to pass on their complaints to the prosecutor's office.
- The
Court does not accept the Government's argument that the prosecutor
who attended the acquittal procedures, even though he had previously
participated in the proceedings that had led to the applicant's
conviction, had failed to notify his supervisors, so that an appeal
could not be lodged within the time prescribed by law. It considers
that the mistakes or errors of the State authorities should serve to
the benefit of the defendant. In other words, the risk of any mistake
made by the prosecuting authority, or indeed a court, must be borne
by the State and errors must not be remedied at the expense of the
individual concerned (see above Radchikov v. Russia, §
50). Furthermore, the higher instances at the General Prosecutor's
Office were aware of the judicial review proceedings as indicated by
the letter of 26 August 1998 (see paragraph 13 above).
- A
situation where the final judgment in the applicant's favour was
called into question and reviewed could have been avoided had the
prosecutor's office lodged an ordinary appeal within the statutory
ten-day time-limit. In the instant case the prosecutor's office
failed to exercise its right to lodge an ordinary appeal and
permitted the statutory ten-day time-limit to expire without
challenging the acquittal decision. Instead, they requested leave to
appeal out of time more than nine months later, after the judgment in
the applicant's favour had become binding and enforceable and after
his acquittal. The prosecutor's request did not contain any
information as to the date when the ten-day time-limit provided for
under Article 147 § 3 of the CCP had begun to run, and nor did
the Government point to any exceptional circumstances that would have
prevented the prosecutor's office from making use of an ordinary
appeal in good time.
- The
Court considers that the arguments used by the prosecutor to justify
the request for leave to appeal out of time were insufficient to
justify challenging the finality of the judgment and using this
extraordinary remedy. The Court considers that allowing the
prosecutor's request did not strike a fair balance between the
interest of the applicant and the need to ensure the effectiveness of
the criminal justice system.
- Having
regard to these considerations, the Court finds that by granting the
prosecutor's request, the Supreme Court infringed the principle of
legal certainty under Article 6 § 1 of the Convention. There has
accordingly been a violation of that Article.
2. “Promptly informed” and defence by
“legal assistance of his own choosing”
a. The parties' submissions
- The
applicant complained that even though the lawyer of his own choosing
had been confirmed by the form of authority of 13 December 1997, the
authorities informed neither his lawyer nor his family of the new
proceedings, in which the prosecutor had been granted leave to appeal
out of time, resulting in the quashing of the final acquittal
decision, thus rendering the right to defend himself through a lawyer
of his own choosing nugatory.
- The
Government maintained that since the applicant had been declared a
fugitive and an officially appointed lawyer had been assigned by the
court, it was this lawyer who had been served with the domestic
courts' decisions granting the request for leave to appeal out of
time.
b. The Court's assessment
- The
Court reiterates at the outset that the requirements of paragraph 3
of Article 6 are to be seen as particular aspects of the right to a
fair trial guaranteed by paragraph 1 (see, among other authorities,
Balliu v. Albania, no. 74727/01, § 25, 16 June
2005). On the whole, the Court is called upon to examine whether the
proceedings that led to the applicant's retrial, in their entirety,
were fair (see, among other authorities, Vanyan v. Russia,
no. 53203/99, § 63-68, 15 December 2005, Imbrioscia
v. Switzerland, judgment of 24 November 1993, Series A
no. 275, § 38 and S.N. v. Sweden, no. 34209/96,
§ 43, ECHR 2002 V).
- Having
regard to the finding of a violation in respect of the quashing of a
final decision under Article 6 § 1 (see paragraph 61
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 6 §
1 in conjunction with Article 6 § 3 (a) and (c).
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant further complained of a violation under Article 10 without
providing any reasons. Article 10 of the Convention provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Court notes that the applicant's complaint has remained
unsubstantiated. The contents of the case file do not disclose a
violation of the applicant's rights under this provision.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO
THE CONVENTION
- The
applicant further complained that the Supreme Court's judgment of 20
June 2001 violated the ne bis in idem principle under Article
4 of Protocol No. 7 to the Convention and should be considered a
second criminal sanction for the same offence. Article 4 of Protocol
No. 7 to the Convention reads as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.
3. No derogation from this Article shall be
made under Article 15 of the Convention.”
- The
Court notes that the aim of Article 4 of Protocol No. 7 is to
prohibit the repetition of criminal proceedings that have been
concluded by a final decision. According to the explanatory report to
Protocol No. 7, which itself refers back to the European Convention
on the International Validity of Criminal Judgments, a “decision
is final 'if, according to the traditional expression, it has
acquired the force of res judicata. This is the case when it
is irrevocable, that is to say when no further ordinary remedies are
available or when the parties have exhausted such remedies or have
permitted the time-limit to expire without availing themselves of
them' ” (see Nikitin, cited above, § 37).
- The
Court observes that the acquittal decision of 14 December 1998 became
final on 24 December 1998 as no appeal was lodged against it within
the ten-day time-limit prescribed under the law (see paragraphs 16
and 38 above). It thus remains to be determined whether the
proceedings that occurred following the granting of the request for
leave to appeal out of time are considered to be a second trial or a
reopening of the acquittal proceedings.
- In
the Court's opinion, Article 4 of Protocol No. 7 draws a clear
distinction between a second prosecution or trial, which is
prohibited by the first paragraph of that Article, and the reopening
of a trial in exceptional circumstances, which is provided for in its
second paragraph. Article 4 § 2 of Protocol No. 7 expressly
envisages the possibility that an individual may have to accept
prosecution on the same charges, in accordance with domestic law,
where a case is reopened following the emergence of new evidence or
the discovery of a fundamental defect in the previous proceedings
(see Nikitin, cited above, § 45).
- The
Albanian legislation permitted at the material time and still permits
either of the parties to criminal proceedings to request leave to
appeal out of time provided that the conditions under Article 147 §
1 of the CCP are met. The subject matter of the proceedings after
leave to appeal out of time had been granted remained the same
criminal charge that had led to the applicant's conviction. The
ultimate effect of the leave to appeal out of time was to reopen the
proceedings, to quash the acquittal decision and determine the
criminal charge in a new decision. It thus constitutes a form of
continuation of the previous proceedings (see Nikitin, cited
above, § 45).
- The
Court therefore concludes that for the purposes of the ne bis in
idem principle, the purpose of the leave to appeal out of time
was an attempt to have the previous proceedings reopened rather than
an attempted “second trial”. It follows that there has
been no violation of Article 4 § 1 of Protocol No. 7 to the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- Relying
on Article 57 of the CCP, the applicant claimed 31 euros (EUR) for
each day served in prison following the Supreme Court's decision of
20 June 2001 in respect of pecuniary damage.
- The
Government contested his claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. The applicant was serving a
sentence of 16 years' imprisonment in Italy, imposed by the Italian
courts for international drug trafficking (see above paragraph 26) at
the time his acquittal decision was quashed by the Supreme Court on
20 June 2001. His imprisonment in Italy had not resulted from the
Albanian Supreme Court's decision of 2001.
- The
applicant claimed from 30,000 to 100,000 US dollars (USD) in respect
of non-pecuniary damage. He claimed that the quashing of the
acquittal decision and his conviction had resulted in severe stress
and frustration. He leaves it to the Court to award the exact amount.
- The
Government contested his claim.
- The
Court recalls that the breach of the Convention found in the instant
case was caused by the quashing of the applicant's acquittal.
Notwithstanding the final nature of the judgment acquitting him, he
was convicted in breach of the principle of legal certainty. The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the quashing of the
District Court's decision of 14 December 1998 (see Bujniţa
v. Moldova, cited above, § 28). The particular amount
claimed is, however, excessive. Making its assessment on an equitable
basis, it awards the applicant EUR 2,000 for non-pecuniary damage.
- However,
the Court also notes that the applicant continues to be subject to
the consequences of the quashing of the decision of 14 December 1998.
It considers that the most appropriate form of redress for this
continuing situation would be for the applicant's final acquittal of
14 December 1998 to be confirmed by the authorities and his
conviction in breach of the Convention to be erased with effect from
that date (see Bujniţa, cited above, § 29).
B. Costs and expenses
- The
applicant also claimed EUR 10,000 for the costs and expenses incurred
before the domestic courts and those incurred before the Court.
- The
Government contested the applicant's claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see, for example, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999 VIII).
- In
the present case, regard being had to the lack of supporting
documents, the Court rejects the claim for costs and expenses in the
domestic proceedings and for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible as regards
the complaints under Article 6 § 1 alone and in conjunction with
Article 6 § 3 (a) and (c) of the Convention and under Article 4
of Protocol No. 7 to the Convention, and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 6 § 3 (a) and (c) of the Convention;
- Holds that there has been no violation of
Article 4 of Protocol No. 7 to the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, to be
converted into the currency of the respondent State at the rate
applicable on the date of payment;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
