CASE OF GRORI v. ALBANIA
(Application no. 25336/04)
7 July 2009
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 Grori v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 27 November 2007, 29 January 2008 and 18 June 2009,
Delivers the following judgment, which was adopted on the last-mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Criminal proceedings on charges of international narcotics trafficking
1. The applicant's initial arrest
2. The initiation of criminal proceedings
C. Proceedings for the validation and enforcement in Albania of the sentence imposed by the Italian court
1. The request for the validation of the Italian courts' sentence and the applicant's second arrest
2. Ordinary judicial proceedings
“...in spite of the fact that the consent of the sentenced person is required by Article 514 (e) of the CCP for the validity in Albania of a sentence imposed by a foreign authority, this should be interpreted only in circumstances involving the transfer of sentenced persons and not in such a manner as to hinder the course of justice. Moreover, Parliament, by Law no. 8813 of 13 June 2002, abrogated point (e) of Article 514 of the CCP...”
“...the requirement laid down in Article 514, point (e), of the CCP is necessary for the validity and enforcement in Albania of a sentence imposed by a foreign authority in accordance with the Convention on the Transfer of Sentenced Persons and the provisions of domestic law. In accordance with the wording of the above-mentioned Article, the consent of sentenced persons is required without any distinction between the circumstances of the transfer of detainees or the validity of the sentence imposed by a foreign court. Moreover, Law no. 8813 of 13 June 2002, which abrogates point (e) of Article 514, is not applicable in the present case since it has not come into force for the time being ...”
“The transfer of sentenced persons has been regulated by the European Convention on the Transfer of Sentenced Persons as ratified by the Parliament of the Republic of Albania and published in the Official Journal no. 22 of 1999 (...). The European Convention on the International Validity of Criminal Judgments has been signed but not yet ratified by the Parliament. As such, this Convention cannot be considered a constituent part of the domestic legal corpus and is not directly applicable. However, its signature and the approval of the engaging provision according to which the State recognises and respects the generally recognised norms and principles of the international law, guide us to understand, interpret and justly apply the provisions of the CCP at issue.
In the case of validity and enforcement of a foreign criminal judgment, the reference to and the solution of the case in accordance with point (e) of Article 514 of the CCP, at the material time, would be nonsense. Were the court to regard the consent of the sentenced person as essential, that would lead to an ad literam interpretation of the provision, as applied by the District Court and the Court of Appeal. However, the interpretation of a legal provision is rather complex. In the event the ad literam interpretation leads to an absurdity [nonsense], a logical and systemic interpretation prevails. According to this interpretation, the said provision shall be interpreted in a reasonable manner. This means that the notion of “the consent of the sentenced person” cannot be broadly interpreted. It should be narrowly interpreted so as not to lead to an absurdity, which would be the case, were the appellant to give his consent to serve the criminal sentence in his country. As it transpires from the acts, the appellant was tried in absentia since he absconded from the Italian justice.
The consent of a person sentenced by a foreign court is a sine qua non for the determination of the question whether the sentence is served in the sentencing State or in the detainee's country of origin, that is in the prisons of the country of which he is a citizen [emphasis added in the original text].
This decision of the Supreme Court, Joint Benches, finally resolves the problem, holding that the lack of consent by the sentenced person for the validation of a foreign criminal judgment is not an obstacle for the Albanian courts to proceed with such a validation and recognition [emphasis added in the original text].
During the examination of the case, the appellant's counsel stated that there is no bilateral agreement between Albania and Italy as regards the validity and enforcement of criminal judgments. They maintained that such an act would impinge upon the sovereignty of the Albanian state, which is exercised by the Parliament through the ratification of an international or bilateral agreement. This claim is unfounded. The Albanian Parliament manifested its sovereign will through the enactment of the CCP, whose provisions at issue should be applied in accordance with their meaning and the unified interpretation of the Supreme Court as outlined above.
It must be underlined that in the absence of signed and ratified instruments, the generally recognised norms of the international law may apply in accordance with the principle of good will and reciprocity. Pursuant to the CCP, the Ministry of Justice is responsible for jurisdictional relations with foreign authorities, including the Italians.
According to Article 512 of the CPP, it is within the discretion of the said Ministry as a manifestation of the political will of the Albanian State, to request the validation before a court of a foreign judgment. The Court shall not examine this kind of discretion. It shall only examine whether the request has been made by the competent authority in accordance with the law and whether the documentation is complete.”
3. Retrial proceedings
“The Constitutional Court considers that the arguments raised in the Supreme Court's, Joint Benches, judgment [of 30 January 2003] are not in breach of the Constitution or [international] conventions. The mutual recognition [validation] of court judgments serves to strengthen legal cooperation between States and the achievement of certain objectives in relation to the freedom of liberty, security and justice. The principle of reciprocity presupposes the application of mutual and legal instruments in inter-state relations. In international law, reciprocity is defined as the right to equality and mutual respect amongst countries. International criminal doctrine and case-law have confirmed that cooperation amongst countries can occur even in the absence of bilateral treaties, on the basis of the principle of reciprocity.
As a rule, the principle of reciprocity applies through international instruments such as treaties and agreements, which envisage mutual rights and obligations. But, in exceptional cases, in the absence of such agreements, the States are not precluded from directly applying the principle of reciprocity, the generally recognised norms of international law and good will. Their application is in the interest of strengthening the States' cooperation in the fight against organised crime and criminality.
The Constitutional Court notes that the judgment of the Supreme Court, Joint Benches as regards Articles 512 and 514 is not unconstitutional. They [the Supreme Court] rightly concluded that there was no conflict between those provisions and the international conventions' provisions. The domestic provisions should apply in accordance with the interpretation made by the [Supreme Court] Joint Benches.
(...) It may be understood (...) that the request for the validation of a foreign court judgment may be made even in the absence of an agreement, on the basis of good will, generally recognised norms and the principle of reciprocity.”
D. Medical treatment
E. Interim measure indicated by the Court
II. RELEVANT DOMESTIC LAW
A. The Constitution
B. Code of Criminal Procedure
1. Article 13 § 2
2. Articles 432 and 448
3. Article 512
84. Article 512, on the validity in Albania of foreign sentences, provides that the Ministry of Justice, when informed of a sentence imposed by a foreign authority concerning Albanian citizens, must send the prosecutor's office a copy of the judgment and any relevant documents. The Ministry of Justice requests the validation of a foreign sentence when it considers that in accordance with an international convention, the decision in question must be executed or any other effects of it must be recognised in Albania.
4. Article 514
85. Article 514 of the Code of Criminal Procedure, before being amended by Law no. 8813 of 13 June 2002, provided that a foreign court's sentence could not be recognised and enforced in Albania in any of the following circumstances: (a) the sentence had not become final according to the laws of the State in which it had been imposed; (b) the sentence contained provisions which ran counter to the principles of the rule of law as applied by the Albanian State; (c) the sentence had not been imposed by an independent and impartial court or the defendant had not been summoned to appear before the trial or had not been granted the right to be questioned in a language that he understood and to be assisted by a defence lawyer; (ç) there were justified reasons to believe that the proceedings had been influenced by considerations regarding race, religion, sex, language or political beliefs; (d) the act for which the sentence was imposed was not provided for as a criminal offence in Albanian law; (dh) a final decision had been delivered or criminal proceedings were in progress in Albania in respect of the same act and against the same person; or (e) the sentenced person or his representative had not granted his consent.
C. Criminal Code, as amended by Law No. 8204 of 10 April 1997, Law No. 8279 of 15 January 1998, and Law No. 8733 of 24 January 2001
“1. A person convicted of premeditated homicide shall be sentenced to a term of fifteen to twenty-five years of imprisonment.
2. A person convicted of premeditated homicide because of an interest or/and vendetta shall be sentenced to a term of between twenty years and life imprisonment.”
D. The Act on the Rights and Treatment of Prisoners (Law no. 8328 of 16 April 1998 as amended by law no. 9888 of 10 March 2008 – “The Prisoners' Rights Act”)
III. RELEVANT INTERNATIONAL MATERIALS
A. European Convention on the International Validity of Criminal Judgments (European Treaty Series (ETS) no. 70)
“1. A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter State.
2. This competence can only be exercised following a request by the other Contracting State.”
B. Convention on the Transfer of Sentenced Persons (ETS no. 112) and the Additional Protocol thereto (ETS no. 167)
Article 1 – Definitions
“For the purposes of this Convention:
c. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred;
d. “administering State” means the State to which the sentenced person may be, or has been, transferred in order to serve his sentence”.
Article 3 – Conditions for transfer
“1. A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State;
C. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
Relevant findings of the 2005 report (made public on 12 July 2006)
“At Tepelena Prison and Tirana-Vaqarr Prison, the delegation met two prisoners who, due to their health condition (severe psychosis and an advanced stage of cancer, respectively), were in urgent need of specialised treatment in a hospital setting. However, no initiatives had been taken to transfer the prisoners concerned to the Prison Hospital. During the end-of-visit talks, the delegation requested the Albanian authorities to take urgent measures in respect of the two above-mentioned cases. In their letter of 14 July 2005, the Albanian authorities confirmed that both prisoners had been transferred to the Prison Hospital.
At Tirana-Vaqarr Prison, the delegation met a prisoner suffering from diabetes who was not receiving a special diet. The CPT must stress that such a state of affairs amounts to a denial of treatment. Further, in the case of another prisoner at Tirana-Vaqarr, who was suffering from tuberculosis, the delegation observed that there had been a considerable delay in transferring the prisoner concerned to the Prison Hospital. Further, no protective measures had been taken during his transfers to the hospital, in order to avoid other prisoners or members of staff becoming infected with the disease.”
Relevant findings of the 2006 report (made public on 6 September 2007)
Relevant findings of the 2008 report (made public on 21 January 2009)
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties' submissions
2. The Court's assessment
(a) Establishment of facts
(b) Examination of the complaint
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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; ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
1. The parties' submissions
2. The Court's assessment
1. The parties' submissions
2. The Court's assessment
(a) General principles
(b) Application of the general principles to the present case
In fact, the Supreme Court's search for a more adequate legal basis for the applicant's detention, led it to import into domestic law provisions of international law instruments which had not yet entered into force with respect to the Republic of Albania.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law...”
IV. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
““The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”
A. The parties' submissions
1. The Government
2. The applicant
B. The Court's assessment
1. General principles
“87. The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure (ibid., § 102). It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition (see paragraph 86 above), that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with (see paragraph 78 above). What matters is whether the situation created as a result of the authorities' act or omission conforms to Article 34.
88. The same holds true as regards compliance with interim measures as provided for by Rule 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition (see paragraph 86 above). It follows that Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the measure indicated by the Court.
89. Furthermore, the Court would stress that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision. It follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short lapse of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court's judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court's ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures' justification.
For the same reasons, the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State's failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34.
90. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. Neither is it for the domestic authorities to decide on the time-limits for complying with an interim measure or on the extent to which it should be complied with. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Olaechea Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan v. Turkey, no. 25656/94, § 409, 18 June 2002).
91. The point of departure for verifying whether the respondent State has complied with the measure is the formulation of the interim measure itself (see, mutatis mutandis, the International Court of Justice's analysis of the formulation of its interim measure and actual compliance with it in LaGrand, cited in paragraph 62 above). The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it.
92. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will therefore not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.”
2. Application of the above principles to the present case
(a) Whether there was a failure to comply with the interim measure
(b) Justification of the failure to comply with the interim measure
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
4. Holds that it is not necessary to examine separately whether there has been a violation of Article 6 § 1 of the Convention as regards the proceedings concerning the validity and enforcement in Albania of the sentence imposed on the applicant by the judgment of the Milan Court of Appeal;
(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 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 7,000 (seven thousand euros) in respect of costs and expenses, to be converted into the currency of the respondent state at the rate applicable on the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 7 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Early Nicolas Bratza