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SHKALLA v. ALBANIA - 26866/05 [2011] ECHR 775 (10 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/775.html
Cite as:
[2011] ECHR 775
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FOURTH
SECTION
CASE OF
SHKALLA v. ALBANIA
(Application
no. 26866/05)
JUDGMENT
STRASBOURG
10 May
2011
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 Shkalla v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Ledi
Bianku,
Vincent
A. de Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26866/05) 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 Ardian Shkalla (“the
applicant”), on 13 July 2005.
The
applicant was represented by Mr A. Kasapi, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their Agents, Ms S. Meneri and, subsequently, by Mrs
E. Hajro.
The
applicant alleged that there had been a breach of his right of access
to court under Article 6 § 1 of the Convention and that the
criminal proceedings against him held in absentia had been
unfair.
On
16 June 2008 the President of the Fourth Section of the Court to
which the case had been allocated decided to give notice of the
application to the respondent Government. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 1).
The
applicant and the Government each filed written observations on the
admissibility and merits of the case (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in Tirana in 1978 and is
currently serving a sentence of life imprisonment.
A. Criminal investigation
On
6 June 2001 two people were killed. K was an eye-witness to the
incident.
On
9 June 2001 the prosecutor decided to proceed with the identification
of the perpetrator and invited K to participate. K was given eight
photographs and he pointed to the applicant as the perpetrator, after
having given a physical description of him. The applicant’s
lawyer was not present.
On
9 June 2001 the police unsuccessfully searched the applicant’s
home. His whereabouts were unknown.
On
9 July 2001 the prosecutor charged the applicant with the offences of
murder in aggravating circumstances and unlawful possession of
firearms. The notification of the prosecutor’s charges was
acknowledged by the signature of a lawyer officially-appointed to
represent the applicant.
On
21 July 2001 the Tirana District Court (“the District Court”)
ordered the applicant’s arrest. However, the order could not be
enforced as the applicant could not be located.
On
3 October 2001 the police unsuccessfully conducted a further search
of the applicant’s home. His whereabouts remained unknown.
On
11 October 2001 the applicant was declared a fugitive from justice by
the District Court in accordance with Article 247 of the Code of
Criminal Procedure (“CCP”).
B. Judicial proceedings
On
12 October 2001 the prosecutor decided to commit the applicant for
trial. The applicant’s officially-appointed lawyer was duly
informed.
On
21 December 2001 the prosecutor submitted his final conclusions in
which he requested that the applicant be sentenced to life
imprisonment. On the same day the applicant’s officially
appointed lawyer submitted his final conclusions in which he
challenged the lawfulness of the identification procedure which had
been conducted in the absence of the applicant’s lawyer. He
requested that the sentence of imprisonment be less than twenty-five
years having regard to the fact that the applicant was not a
recidivist and that he was young and had a low level of education.
On
the same day the District Court found the applicant guilty as charged
and sentenced him to life imprisonment. It would appear that the
applicant was living in Greece at the material time.
On
28 December 2001, in accordance with Article 48 § 3 of the CCP,
the applicant’s father authorised a lawyer to represent the
applicant and lodge all necessary appeals.
On
31 December 2001 the lawyer lodged an appeal against the applicant’s
conviction. The appeal, which also bore the applicant’s
signature, was based on points of fact and law.
On
26 April 2002, following proceedings in absentia, the Tirana
Court of Appeal (“the Court of Appeal”) upheld the
District Court’s decision. It found that the applicant had been
declared a fugitive after unsuccessful attempts to trace his
whereabouts and that the first-instance court’s notifications
had been addressed to his officially-appointed lawyer in accordance
with the law.
On
17 May 2002 the applicant appealed, through his family appointed
lawyer, to the Supreme Court. He complained inter alia that
his absence during the lower courts’ proceedings had adversely
affected him and that he had not been notified of the proceedings in
accordance with the law. The applicant stated that he did not deny
the charges against him but the circumstances of the case were unique
and required a different view of the merits of the case. The appeal
bore the applicant’s signature and that of the lawyer appointed
by his family.
On
15 January 2003 the Supreme Court rejected the applicant’s
appeal. It held that the District Court had properly notified the
applicant at his home address. Moreover, his brothers and mother were
summoned as witnesses at one of the first-instance court’s
hearings. The Supreme Court considered that the non-participation of
the applicant in the trial reflected his own choice, as evidenced in
his appeals, rather than of a lack of opportunity afforded by the
lower courts to appear at his trial and to contest the charges. The
Supreme Court dismissed, as unsubstantiated, the applicant’s
argument that the sentence of imprisonment would have been less
severe had he attended the proceedings.
Still
living in Greece, the applicant was informed on 14 June 2003 of the
outcome of the above proceedings, namely that he had been sentenced
to life imprisonment in Albania. On the same day he surrendered to
the Albanian police in order to seek justice in respect of his
conviction and allegedly unfair trial in absentia.
On
12 January 2005 the applicant authorised a lawyer to introduce a
constitutional appeal.
On
15 January 2005 the applicant lodged a constitutional appeal. He
stated that he had been tried in absentia and his interests
had not been properly defended before the first-instance court. The
officially appointed lawyer had been appointed by the prosecutor
instead by the court. The applicant had never been notified of any
documents concerning his case. Moreover, the applicant alleged that
he had been declared a fugitive on the basis of inconclusive
evidence. The fact that he surrendered after the completion of his
trial was a further sign that he had not been properly notified of
the proceedings. He also contended that his signature on the appeals
to the Court of Appeal and the Supreme Court had been forged.
On
1 February 2005 the Constitutional Court, having noted that the
applicant’s appeal had been submitted in an envelope postmarked
17 January 2005, declared the complaint inadmissible as having
been filed out of time.
In
a letter of 15 February 2005 the applicant’s lawyer informed
the Constitutional Court inter alia that, as the time-limit
had expired during a weekend (on a Saturday), whereas all domestic
procedural rules provided for an automatic extension of the legal
time-limit to the following working day, he had posted his
constitutional appeal on the following working day, namely on Monday
17 January 2005.
On
24 February 2005 the Constitutional Court replied that the applicant
had been informed of the grounds for its decision of
1 February
2005. His complaint had been filed out of time on the basis of the
postmark on the envelope in which the complaint had been sent to the
Constitutional Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Constitution
The
relevant provisions of the Constitution read 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 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in the event of criminal charges
brought against him, everyone has the right to a fair and public
hearing, within a reasonable time, by an independent and impartial
court established by law”.
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 Constitutional Court Act (Law on organisation
and operation of the Constitutional Court of the Republic of Albania
no. 8577 dated 10 February 2000)
The relevant provisions of the Constitutional Court
Act read as follows:
Section 1 – The scope
“...
2. The Constitutional Court shall take into account the
legal provisions that regulate other procedures in so far as issues
relating to procedures not governed by this Act are concerned, having
regard to the legal nature of the case at issue”.
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 for 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 last instance body’s
decision”.
Section 31
“1. A preliminary review of appeals shall be
conducted by a panel of three Constitutional Court judges, including
the judge rapporteur.
2. If an appeal, despite being within the jurisdiction
of the Constitutional Court and submitted by a person who has locus
standi to lodge it, is not complete, the panel shall send it back
to the appellant for completion, indicating the reasons for doing so
and a deadline for its completion. When the appeal is completed, it
shall be resubmitted for preliminary review by the panel. An
incomplete appeal may not be subject to review.
3. If an appeal is lodged by an appellant claimant who
has locus standi and the case falls within the jurisdiction of
the Constitutional Court, the panel shall review the case in plenary
session, whereas if it is lodged by a person without locus standi
or if the case is not within the jurisdiction of the Constitutional
Court, the panel shall not review the case in plenary session. In all
cases, if one of the judges of the panel has a different opinion, the
appeal shall be sent for preliminary review by the full court, which
shall decide by a majority of votes whether the case shall be heard
in plenary session.
4. In all the aforementioned cases the panel or the full
court shall not review the merits of the case”.
Constitutional Court’s case-law
In its decision no. 8 of 12 March 2009 (no. 8/09) the
Constitutional Court, having regard to the provisions of the Code of
Civil Procedure and the fact that the Constitutional Court Act did
not provide for the procedure to be followed in the event that an
appellant renounced his right to pursue the appeal, decided to
dismiss the case in accordance with section 1 § 2 of the
Constitutional Court Act.
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.
C. Code of Criminal Procedure (“CCP”)
The relevant provisions of the CCP read 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 144 – General rules
“1. Procedural time-limits are determined in
hours, days, months and years.
2. Time-limits are calculated on the basis of the
ordinary calendar.
3. When a time-limit, which has been determined in days,
ends at a weekend (“weekly holiday”) or on a public
holiday, its term is prolonged until the following working day.
...”
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.
...”
Articles
449–461 of the CCP govern the application for review of a final
judgment. According to Article 451, the accused or the prosecutor may
file a request for review in accordance with the limited grounds of
review found in Article 450. The request is submitted to the Supreme
Court which may decide to reject or accept it (Article 453).
The case-law of the domestic courts
On 24 March 2008, 11 November 2008, 19 January and 8
October 2009, the District Court, the Court of Appeal, the Supreme
Court and the Constitutional Court, respectively, rejected the
defendant’s application for leave to appeal out of time on the
ground that his conviction in absentia had acquired the force
of res judicata and that the defendant had been effectively
defended by a counsel appointed by family members (see Sulejmani
v. Albania, no. 16114/10, communicated to the respondent
Government on 31 May 2010 and pending before the 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 (no. 30/10), the
Constitutional Court decided that the appointment of a 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.
D. Other relevant domestic legislation
Article
148 of the Code of Civil Procedure provides that, when a statutory
time-limit expires at a weekend or on a public holiday, such
time-limit will be deferred until the first working day thereafter.
Article
62 (b) of the Code of Administrative Law Procedure provides that the
calculation of time-limits shall be suspended on a Saturday, a Sunday
and a public holiday.
Article 2 § 1 of the Decision of the Council of
Minister on the duration of working hours and holidays in State
institutions (Decision no. 511 of 24 October 2002) stipulates that
Saturdays and Sundays are “weekly holidays”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Article 6 § 1 of the Convention that
the Constitutional Court decision had deprived him of the right of
access to court. He further alleged that the criminal proceedings in
absentia had lacked the guarantees of fairness as required by
Article 6 §§ 1 and 3 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;
(b) to have adequate time and facilities for
the preparation of his defence;
(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;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. Scope of the case
The
Court reiterates that it is master of the characterisation to be
given in law of the facts of the case. It does not consider itself
bound by the characterisation given by an applicant or a government
(see Berhani v. Albania, no. 847/05, § 46, 27 May 2010;
and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §
54, ECHR 2009 ...). Notwithstanding the fact that the
applicant’s complaints are linked by reason of the Government’s
objection to the applicant’s failure to exhaust domestic
remedies (see paragraphs 55 63 below), the Court considers that,
given the circumstances of the case, it is appropriate to address the
complaints separately.
B. Right of access to court
1. Admissibility
Neither
of the parties raised any grounds of inadmissibility in respect of
this complaint.
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The
Government submitted that the three-judge formation of the
Constitutional Court rejected the applicant’s constitutional
appeal as having been time-barred. The time-limit started to run from
the date of the final decision. In the Government’s view, since
section 30 of the Constitutional Court Act stipulated the time-limit
for lodging a constitutional appeal without providing for the
procedure to be followed in a case where the time limit expired
on a week-end or a public holiday, the Constitutional Court referred
to Article 144 of the Code of Criminal Procedure. The rule contained
in that article did not apply to time-limits calculated in months and
years, but only to time-limits calculated in days.
The
Government added that the applicant had not substantiated his claim
that he lacked the financial means to introduce a constitutional
appeal at an earlier stage. In any event, they maintained that the
law provided for free legal assistance for such matter, which the
applicant failed to seek.
However,
in their further comments, the Government admitted that the
applicant’s right of access to court had been breached on
account of the dismissal of his constitutional appeal by the
Constitutional Court. They stated that the Constitutional Court had
erred in the calculation of the time limit.
The
applicant submitted that the instant case did not concern time limits
under the law of criminal procedure but constitutional time limits,
which required interpretation by the Constitutional Court. In any
event, he maintained that the time-limits under the law of criminal
procedure were only calculated in days and not in months or years as
contended by the Government. Were the Code of Criminal Procedure to
apply to the calculation of time-limits, the time-limit for the
introduction of a constitutional appeal would be extended to the
following working day whenever a time-limit fell on a week-end or a
public holiday.
The
applicant considered abusive the Government’s argument that
legal assistance was provided to enable an appellant to lodge a
constitutional appeal: no legal act existed providing for free legal
aid for lodging such appeal with the Constitutional Court. The
Government failed to provide any evidence to the contrary.
(b) The Court’s assessment
The Court reiterates that it is in the first place for
the national authorities, and notably the courts, to interpret
domestic law and that the Court will not substitute its own
interpretation for theirs in the absence of arbitrariness. This
applies in particular to the interpretation by courts of rules of a
procedural nature such as time-limits governing the filing of
documents or the lodging of appeals (see Tejedor García v.
Spain, 16 December 1997, § 31, Reports of Judgments
and Decisions 1997 VIII; and, Miragall Escolano and
Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98,
41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, §
33, ECHR 2000 I).
The “right to a court”, of which the right
of access is one aspect, is not absolute; it is subject to
limitations permitted by implication, in particular where the
conditions of admissibility of an appeal are concerned, since by its
very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard. However, these
limitations must not restrict or reduce a person’s access in
such a way or to such an extent that the very essence of the right is
impaired; lastly, such limitations will not be compatible with
Article 6 § 1 if they do not pursue a legitimate aim or if there
is not a reasonable relationship of proportionality between the means
employed and the aim pursued (see García Manibardo v.
Spain, no. 38695/97, § 36, ECHR 2000 II).
Turning
to the facts of the present case, the applicant’s
constitutional appeal was rejected by the Constitutional Court as
having been lodged out of time. The parties dispute the manner of
calculation of the time-limit by the Constitutional Court.
The
Court notes that the Constitutional Court Act provides for a two year
time-limit for lodging a constitutional appeal. The time-limit starts
to run from the date of the notification of the decision of the
last-instance court. It is further noted that the Constitutional
Court Act does not contain any procedural rules for the calculation
of the two-year time-limit, and, notably, in a case where the expiry
of the time-limit falls on a public or weekly holiday. However, it
provides that, when confronted with procedural issues, the
Constitutional Court should refer to other procedural rules having
regard to the legal nature of the case (see sections 1 and 30 of the
Constitutional Court Act in paragraph 29 above as well as paragraph 30
above).
In
the instant case, the Constitutional Court calculated the running of
the two-year time-limit from the date of pronouncement of the Supreme
Court’s decision on 15 January 2003. Even assuming that the
starting date for the calculation of the two-year time-limit was
indeed 15 January 2003, the Court is not convinced that the applicant
lodged his constitutional appeal out of time. The Court notes that
the statutory time-limit expired on 15 January 2005, which fell
on a Saturday. Having regard to the fact that Saturday is a weekly
holiday (see paragraph 38 above) and taking account of the manner of
calculation of time-limits under Article 144 § 3 of the CCP (see
paragraph 32 above), the Court considers that the time-limit should
have been automatically extended to the following working day, which
in the present case was 17 January 2005. The applicant’s
constitutional appeal was in fact postmarked 17 January 2005 and
therefore his appeal should have been taken to have complied with the
statutory time-limit. The Government conceded this fact in their
further comments.
Moreover,
the Court notes that the applicant’s proceedings and conviction
were conducted in absentia. It results from the information in
the case file that the applicant took cognisance of his conviction in
absentia only on 14 June 2003, on which date he surrendered to
the authorities. The Court therefore considers that the starting date
for the running of the statutory time-limit for the applicant to
lodge a constitutional appeal should have been, at the latest, 14
June 2005 (see also the Constitutional Court’s case-law
referred to in paragraph 31 above).
The Court considers that the impugned decision
amounted to an unjustified denial of the applicant’s right of
access to the Constitutional Court. There has accordingly been a
violation of Article 6 § 1 of the Convention.
C. Unfairness of the criminal proceedings in
absentia
1. Admissibility
(a) The parties’ submissions
The Government submitted that the applicant had not
exhausted domestic remedies. He could have lodged a request for leave
to appeal out of time in accordance with Article 147 of the CCP or
filed a request for the revision of a final judgment in accordance
with Article 450 of the CCP.
The
applicant contended that an action for leave to appeal out of time
was not an ordinary means of appeal. He further argued that the
unfairness of the criminal proceedings against him could not have
been remedied by a request for review of a final judgment. Instead,
he had had recourse to the Constitutional Court pursuant to Article
131 (f) of the Constitution after the domestic courts had finally
ruled on the merits of his case.
(b) The Court’s assessment
The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 of the Convention obliges
those seeking to bring their case against the State before the Court
to use first the remedies provided by the national legal system. The
complaints should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law and, further, that any
procedural means that might prevent a breach of the Convention should
have been used (see, amongst others, Laska and Lika v. Albania,
nos. 12315/04 and 17605/04, § 41, 20 April 2010).
Turning
to the present case, the Court recalls that it has ruled that a
request for the review of a final decision is an extraordinary
remedy, which cannot, as a general rule, be taken into account for
the purposes of applying Article 35 § 1 of the Convention (see
Laska and Lika, cited above, §§ 50 51).
The
Court further notes that Article 147 of the CCP provides an accused
with the possibility of requesting leave to appeal out of time.
However, the Government failed to provide the Court with domestic
case law on the interpretation in practice of the provisions of
that article. The Court reiterates that it is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was
capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Akdivar
and Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV; and, more recently,
Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99,
3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and
21819/04, § 70.., ECHR 2010 ...).
In
addition, the Court notes that, on appeal, the applicant was defended
by counsel appointed by members of his family. The Court considers
that, had the applicant lodged an application for leave to appeal out
of time, the effectiveness of such an application must be considered
to be open to doubt, having regard to the domestic courts’
decisions in other cases where an accused’s application for
leave to appeal out of time was rejected, inter alia, on the
ground that he had been represented in court proceedings in
absentia by counsel appointed by his family (see paragraph 34
above). The Court is therefore not persuaded that an application for
leave to appeal out of time, when the applicant had been represented
on appeal by a lawyer appointed by his family, would have had
realistic prospects of success.
Notwithstanding
the above observations, the Court will examine whether the applicant
was indeed required to have recourse to any other domestic remedy. In
this connection, the Court reiterates that in the event of there
being a number of remedies which an individual can pursue, that
person is entitled to choose a remedy which addresses his or her
essential grievance (see Croke v. Ireland (dec.), no.
33267/96, 15 June 1999). In other words, when a remedy has been
pursued, use of another remedy which has essentially the same
objective is not required (see Moreira Barbosa v. Portugal
(dec.), no. 65681/01, ECHR 2004-V).
It
would appear that an appeal to the Constitutional Court is an
effective remedy for challenging a conviction in absentia (see
paragraph 31 above). However, in the instant case, the Constitutional
Court rejected the applicant’s appeal, on grounds which the
Court has found to be incompatible with Article 6 § 1, as noted
in paragraphs 48-54 above.
The Court therefore rejects the Government’s
objections. The Court notes that this complaint is not manifestly
ill-founded. It further finds that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The
Government submitted that the applicant was nowhere to be found. As a
result, the notifications were sent to his officially appointed
lawyer in accordance with the law. The domestic courts declared him
to be a fugitive from justice and continued the proceedings in
absentia after unsuccessful attempts to trace him. The applicant
had been assisted by a court-appointed lawyer, who was notified of
all actions and had participated and represented him during the
criminal investigation and the court proceedings.
The
applicant submitted that the authorities had intentionally tried him
in absentia without having conducted a full search of his
whereabouts. He contended that the officially appointed lawyer had
been appointed by the prosecutor and not by the domestic courts. He
alleged that he had not been notified in person of any acts, at least
not until the moment his detention was ordered by the District Court,
when he was still presumed to be at large.
(b) The Court’s assessment
The
Court notes that the general principles as regards proceedings in
absentia have been described in Sejdovic v. Italy [GC],
no. 56581/00, §§ 81 95, ECHR 2006 II.
The
Court further recalls that the guarantees in paragraph 3 of Article 6
are specific aspects of the right to a fair trial set forth in
paragraph 1 (see Edwards v. the United Kingdom, 16
December 1992, § 33, Series A no. 247 B). In the
circumstances of the case it finds it unnecessary to examine the
relevance of paragraph 3 to the case since the applicant’s
allegations, in any event, amount to a complaint that the proceedings
have been unfair. It will therefore confine its examination to this
point.
In
the instant case, the Court observes that after at least two
unsuccessful searches of the applicant’s home, the applicant
was declared a fugitive from justice by the domestic courts on 11
October 2001. A lawyer was appointed to represent him and notified of
the charges against the applicant. It was not disputed that the
applicant had not received any official information about the charges
or the date of his trial.
The
Court will further examine whether in the absence of an official
notification, the applicant may be regarded as having been
sufficiently aware of his prosecution and trial to the effect that he
might be considered to have waived his right to appear in court.
In
previous cases concerning convictions in absentia, the Court
has held that to inform someone of a prosecution brought against him
is a legal act of such importance that it must be carried out in
accordance with procedural and substantive requirements capable of
guaranteeing the effective exercise of the accused’s rights;
vague and informal knowledge cannot suffice (see T. v. Italy,
cited above, § 28, and Somogyi v. Italy, no. 67972/01,
§ 75, ECHR 2004 IV). The Court cannot, however, rule out
the possibility that certain established facts might provide an
unequivocal indication that the accused is aware of the existence of
the criminal proceedings against him and of the nature and the cause
of the accusation and does not intend to take part in the trial or
wishes to avoid prosecution. This may be the case, for example, where
the accused states publicly or in writing that he does not intend to
respond to summonses of which he has become aware through sources
other than the authorities, or succeeds in evading an attempted
arrest (see, among other authorities, Iavarazzo v. Italy
(dec.), no. 50489/99, 4 December 2001), or when materials are brought
to the attention of the authorities which unequivocally show that he
is aware of the proceedings pending against him and of the charges he
faces.
In
the present case, the Court notes that the appeals to the Court of
Appeal and the Supreme Court bore the applicant’s signature.
However, in his constitutional appeal the applicant disputed the
authenticity of the signature. As the constitutional appeal was
declared inadmissible, the applicant was deprived of the opportunity
to present his case to the Constitutional Court to the effect that
the signature was not his and that, consequently, he had not had
effective knowledge of the proceedings against him.
The
fact that the applicant was defended on appeal by a counsel appointed
by his father does not mean that he had prior effective knowledge of
the proceedings against him. The domestic courts did not examine this
question at all and the Government did not submit any proof to the
contrary.
Finally,
the mere absence of the applicant from his home is insufficient to
consider that he was aware of the proceedings and, consequently, had
escaped. Furthermore, it does not appear that any searches were
conducted elsewhere in the country or abroad (see Ay Ali v. Italy,
no. 24691/04, § 44, 14 December 2006; and, Zunic v. Italy,
no. 14405/05, § 60, 21 December 2006). Moreover, it
transpires from the case file that the applicant surrendered to the
authorities in order to challenge his conviction in absentia
as soon as he took cognisance of the sentence imposed on him.
In
these circumstances, the Court considers that it has not been shown
that the applicant had sufficient knowledge of the legal proceedings
against him, that he explicitly or implicitly authorised his family
members’ actions on appeal, or unequivocally waived his right
to appear in court by deliberately evading justice.
As
to whether domestic law afforded him with sufficient certainty the
opportunity of having a new trial, the Court recalls its conclusions
regarding the lack of effective remedies available to the applicant
and the lack of success of those remedies attempted (see paragraphs
57–63 above).
There
has therefore been a violation of Article 6 § 1 of the
Convention in the instant case on account of the unfairness of the
proceedings and of the applicant’s conviction in absentia.
II. APPLICATIONS OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
Article
46 provides:
Article 46
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The Court reiterates below its findings in Laska
and Lika, cited above.
“74. In the instant case, the Court found that the
applicants’ right to a fair trial had been seriously breached
by the domestic authorities. The Court observes that when an
applicant has been convicted in breach of his rights as guaranteed by
Article 6 of the Convention, he should, as far as possible, be put in
the position in which he would have been had the requirements of that
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be trial de novo or the reopening of the
proceedings, if requested (see Caka v. Albania, no. 44023/02,
§ 122, 8 December 2009; Salduz, cited above, §
72; Xheraj v. Albania, no. 37959/02, § 82, 29 July 2008;
Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine,
ECHR 2005-IV).
75. The Court accordingly considers that, in the instant
case, a retrial or the reopening of the case, if requested by the
applicant, represents in principle an appropriate way of redressing
the violation. This is in keeping with the guidelines of the
Committee of Ministers, which in Recommendation No. R (2000) 2 called
on the States Parties to the Convention to introduce mechanisms for
re-examining the case and reopening the proceedings at domestic
level, finding that such measures represented “the most
efficient, if not the only, means of achieving restitution in
integrum” (see paragraph 33 above). (...)
76. The Court notes that the respondent State’s
criminal legal system does not provide for the possibility of
re-examining cases, including reopening of domestic proceedings, in
the event of this Court’s finding of a serious violation of an
applicant’s right to a fair trial. It is not for the Court to
indicate how such a possibility is to be secured and what form it is
to take. The respondent State remains free, subject to monitoring by
the Committee of Ministers, to choose the means by which it will
discharge its obligation to put the applicant, as far as possible, in
the position he would have been in had the requirements of the
Convention not been disregarded (see Piersack v. Belgium
(Article 50), 26 October 1984, § 12, Series A no. 85), provided
that such means are compatible with the conclusions set out in the
Court’s judgment and with the rights of the defence (see Lyons
and Others v. the United Kingdom (dec.), no. 15227/03, ECHR
2003-IX).
(...)”
The Court considers that there is no reason to depart
from these findings.
B. Article 41 of the Convention
Articles
41 of the Convention provides as follows:
Article 41
“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.”
1. Damage
The
applicant claimed 7,000 euros (“EUR”) in respect of
pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.
He submitted that the pecuniary damage related to his expenses in
prison such as foodstuffs, medicines and telephone cards.
The
Government did not submit any comments.
The
Court reiterates that it will award sums for just satisfaction under
Article 41 where the loss or damage alleged has been caused by the
violation it has found (see Sejdovic, cited above, §
131).
In
the instant case, the Court makes no award in respect of pecuniary
damage as no causal link has been established between the violation
it has found and the claims made by the applicant.
With
regard to non-pecuniary damage, the Court considers that, in the
circumstances of the case, the finding of a violation constitutes in
itself sufficient just satisfaction (see, amongst others, Popovitsi
v. Greece, no. 53451/07, § 36, 14 January 2010; Zunic,
cited above, § 72; Ay Ali, cited above, § 57; and,
Sejdovic cited above, § 134). The Court recalls in this
connection its observations in paragraphs 78 and 79 as regards the
appropriate form of redress for the violations it has found.
2. Costs and expenses
The
applicant claimed EUR 7,000 for the costs and expenses incurred in
the Strasbourg proceedings, which were broken down into EUR 2,000
in respect of translation costs and EUR 5,000 in respect of legal
fees.
The
Government did not make any comments.
Having
regard to the information in its possession and to its relevant
practice, the Court considers it reasonable to award the applicant
EUR 4,000.
3. 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;
Holds that there has been a violation of
Article 6 § 1 of the Convention on account of an
unjustified denial of the applicant’s right of access to the
Constitutional Court;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the unfairness of the
proceedings and of the applicant’s conviction in absentia;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
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 4,000 (four
thousand euros) in respect of costs and expenses, to be converted
into the national currency of the respondent State at the rate
applicable at 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 amount[s] 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
claim for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
