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Cite as: [2018] ECHR 419, ECLI:CE:ECHR:2018:0522JUD005745611, CE:ECHR:2018:0522JUD005745611

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SECOND SECTION

CASE OF MUCA v. ALBANIA

(Application no. 57456/11)

JUDGMENT

STRASBOURG

22 May 2018

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 Muca v. Albania,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 17 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 57456/11) 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 Blerim Muca ("the applicant"), on 25 August 2011.

2. The applicant was represented by Mr V. Muzina, a lawyer practising in Durrës. The Albanian Government ("the Government") were represented by their then Agent, Ms L. Mandia of the State Advocate's Office.

3. On 25 August 2011 the applicant sent an application to the Court, alleging that there had been a violation of Article 6 § 1 of the Convention. It reached the Court on 31 August 2011.

4. On 21 November 2011 the applicant sent another application to the Court similar to the one already submitted in August 2011. It reached the Court on 24 November 2011.

5. On 26 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1970 and lives in Tirana.

7. On an unspecified date criminal proceedings were brought against the applicant and two other co-accused on account of premeditated murder. The applicant was subsequently arrested by the authorities.

8. On 21 July 1998 the applicant addressed a letter (kërkesë) to the Kavaja District Court ("the District Court") and the Kavaja district prosecutor ("the district prosecutor"), stating that he had engaged A., a lawyer, to represent him before the district prosecutor during the investigation and during the trial proceedings. It appears that the applicant wrote this letter while he was in detention.

9. On 1 November 1999 the District Court found the applicant not guilty and ordered his release. He had attended the trial and had been defended by A., his chosen lawyer. The two other co-accused were convicted and sentenced.

10. On an unspecified date the two other co-accused and the prosecutor appealed against the District Court's decision of 1 November 1999.

11. On an unspecified date the applicant left Albania. It appears that the applicant was not informed of the appeals of the two other co-accused and the prosecutor, but apparently A. was so informed.

12. On 28 February 2000 the Durrës Court of Appeal ("the Court of Appeal") quashed the District Court's decision and remitted the case for re-�examination. The applicant was represented by A. in his absence.

13. On 21 April 2000 the Supreme Court rejected the applicant's appeal lodged by A. against the Durrës Court of Appeal decision of 28 February 2000.

14. On 26 December 2000, during the retrial proceedings, the District Court convicted the applicant in absentia of premeditated murder and sentenced him to twenty-three years' imprisonment. The applicant was represented by lawyer A. (see paragraph 9), the decision stating that A. had been appointed by the court. The two other co-accused appealed.

15. On 10 September 2001 and 14 December 2001 the Court of Appeal and the Supreme Court, respectively, upheld the decision of 26 December 2000. The applicant had been represented in those proceedings by a new, court-appointed lawyer.

16. On 14 April 2004 the applicant's mother hired another lawyer, K., to make an application for review. It appears from the Supreme Court's decision of 9 July 2010 (see paragraph 18 below) and the Constitutional Court's decision of 25 February 2011 (see paragraph 21 below) that an application for review was rejected by the Supreme Court. There is no copy of the said Supreme Court decision in the case file.

17. On 8 July 2005 the applicant was informed of his conviction in absentia by his family members. He lodged an application for leave to appeal out of time against the decision of 26 December 2000, arguing that he had never been informed of his conviction in absentia as he had been living abroad. The applicant was represented by K. as his counsel.

18. On 4 November 2005, 29 September 2006 and 9 July 2010 respectively, the District Court and the Court of Appeal dismissed, and the Supreme Court rejected, his application. The domestic courts held that the applicant should have known of the proceedings as he had been represented by a lawyer of his own choosing, A., who had been informed of the prosecutor's appeal, and as his mother had appointed a lawyer to make an application for review. They also held that the case had already been examined at all instances and that their decisions were still in effect.

19. Judge A.H., who had been a member of the District Court's bench that had delivered the judgment of 26 December 2000, also sat in the District Court's bench of 4 November 2005 that dismissed the applicant's application. Judges V.C. and Sh.M., who had been members of the Court of Appeal's bench that on 10 September 2001 had upheld the decision of 26 December 2000, also sat in the Court of Appeal's bench that dismissed his appeal on 29 September 2006.

20. On an unspecified date the applicant, represented by his lawyer, lodged a constitutional complaint in respect of the alleged unfairness of the proceedings in absentia and the lack of impartiality of the District Court and the Court of Appeal.

21. On 16 March 2011 the applicant's lawyer was informed of the Constitutional Court's decision of 25 February 2011 to dismiss the applicant's constitutional appeal. The Constitutional Court, noting that A. and the applicant's mother had had knowledge of the trial proceedings, stated that there had been no exceptional circumstances which had prevented the applicant from attending the proceedings in person. It did not examine the applicant's claim about the impartiality of the District Court and the Court of Appeal

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. The relevant domestic law and practice at the material time are described in detail in the judgments of Shkalla v. Albania (no. 26866/05, §§ 28-35, 10 May 2011) and Izet Haxhia v. Albania (no. 34783/06, §§ 19-�42, 5 November 2013).

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

23. The applicant complained of the unfairness of the proceedings in absentia and of the lack of impartiality of the judges who took part in the examination of his case after having been involved in the first round of proceedings. He relied on Article 6 § 1 of the Convention, which reads, in its relevant parts, as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ..."

24. The Government denied that there had been any violation of this provision.

A. Admissibility

25. The Government argued that the application had been submitted outside the six-month time-limit provided for in the Convention, the applicant having lodged the application on 24 November 2011.

26. The applicant maintained that the application had been introduced within the six-month time-limit.

27. The Court notes that the applicant sent the application form on 25 August 2011 and it reached the Court by post on 31 August 2011. On the basis of the material before it, the Court sees no reason to find that the application was sent out of time. The second application form sent on 21 November 2011 was an additional document which does not affect the initial application. The Court therefore rejects the Government's objection.

28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Proceedings in absentia

29. The applicant submitted that he had left Albania after the District Court had acquitted him by its decision of 1 November 1999. He had not been aware of the proceedings against him. The authorities had therefore tried and convicted him in absentia. He further stated that his mother's knowledge of those proceedings had not made the proceedings fair as long as he had not been aware of them. He also disputed the fact that his family members had lodged an application for review (see paragraphs 16, 18 and 21 above). The domestic courts had not taken into consideration the Constitutional Court's decision no. 30 of 17 June 2010 (see Izet Haxhia, cited above, § 35).

30. The Government accepted that the applicant had been tried and convicted in absentia. However, they argued that the domestic proceedings had not been unfair. The applicant had been represented by a lawyer of his own choosing. He had been present in the proceedings before the District Court, which had declared him not guilty on 1 November 1999. His lawyer, A., had been informed of the appeal lodged against that decision. A. had also been present in the proceedings before the Court of Appeal, which on 28 February 2000 had remitted the case for re-examination. A. had also appealed against the Court of Appeal's decision of 28 February 2000 to the Supreme Court.

31. The Government also submitted that the applicant's family members had had knowledge of the proceedings. They had regularly been present at the court proceedings or had duly engaged lawyers to represent the applicant. Indeed, his mother had hired a lawyer to make the application for review of the final decision on behalf of the applicant. Furthermore, the engagement of the same lawyer - K. - had shown that the applicant's will had been the same as his mother's.

32. In their additional submissions the Government submitted that the applicant had consented to being tried in absentia as he had been aware of the trial against him. The District Court's decision of 1 November 1999 had not been final and had therefore been amenable to appeal. The applicant's application for leave to appeal out of time had been dismissed on the grounds that nothing had prevented him from participating in the proceedings.

33. The Court notes that the general principles as regards proceedings in absentia have been set out in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81-�95, ECHR 2006-�II). The Court further notes that although proceedings that take place in the accused's absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from the court which has heard his case a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he or she has waived his or her right to appear and to defend him or herself (see Sejdovic, cited above, § 82, and Hokkeling v. the Netherlands, no. 30749/12, § 58, 14 February 2017).

34. Turning to the present case, the Court notes that the applicant had been present and had been assisted by a lawyer of his own choosing at the first-instance proceedings (contrast Shkalla, cited above, in which the applicant had not been informed of the proceedings at all), at the end of which the trial court declared him not guilty and ordered his release. Upon release, the applicant went abroad. However, following the appeals of the other co-accused and the prosecutor, the applicant was convicted in absentia. The Court notes in this regard that even though his chosen lawyer continued to represent him on appeal, it cannot be inferred that the lawyer was acting on the applicant's explicit instructions. In fact, in the retrial proceedings, the same lawyer continued to represent the applicant after having been appointed by the court (compare and contrast Medenica v. Switzerland, no. 20491/92, ECHR 2001-�VI). Another court-�appointed lawyer represented the applicant in the subsequent retrial proceedings. The Government did not submit any proof to the contrary.

35. Lastly, the Court notes from the documents in the case file that it cannot be said that the appointment of a lawyer by family members in order to make an application for review met with the applicant's approval or had his consent. It cannot be inferred from the fact that the applicant was defended by counsel appointed by his mother that he had prior effective knowledge of the appeal and retrial proceedings.

36. For all the above considerations, the Court finds that it has not been shown that the applicant had sufficient knowledge of the appeal proceedings or that he had sufficient knowledge of the retrial proceedings against him. Further, there is no indication in the case file that the authorities undertook any effort to notify him. Nor has it been shown that he explicitly or implicitly authorised his family members' subsequent actions or the appointed lawyer's actions or unequivocally waived his right to appear in court by deliberately evading justice. The Court further notes that the applicant unsuccessfully lodged an application for leave to appeal out of time (see Shkalla, cited above § 75, and Izet Haxhia, cited above, § 63), therefore that remedy turned out to be ineffective.

37. In the light of the foregoing, the Court finds that the applicant did not have the opportunity to obtain a fresh determination of the merits of the charges against him by a court which would have allowed him to put forward his case in proceedings compliant with the fairness guarantees of Article 6.

38. There has therefore been a violation of Article 6 of the Convention.

2. Impartiality of the District Court and the Court of Appeal

39. The applicant also complained, under Article 6 § 1, of the lack of impartiality of the benches of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006.

40. The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is to say whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009).

41. Turning to the present case, the Court notes that the benches of the District Court of 26 December 2000 and of the Court of Appeal of 10 September 2001 examined the applicant's case on the merits and convicted him in absentia. The Court further notes that some members of those benches (Judges A.H., V.C. and Sh.M.) also sat on the benches of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006, which examined the applicant's application for leave to appeal out of time.

42. As to the subjective test, the Court notes that the applicant did not dispute the personal impartiality of Judges A. H., V.C. and Sh.M.

43. Under the objective test, it must be determined whether, quite apart from the judges' personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. The Court notes that the bench of the District Court in the proceedings of 4 November 2005 and of the Court of Appeal in the proceedings of 29 September 2006 did not examine the case on the merits of the conviction. They also did not reach any conclusion as to the applicant's guilt (see Fey v. Austria, 24 February 1993, § 34, Series A no. 255-�A).

44. In the light of the foregoing, even assuming that Article 6 applies to the leave to appeal proceedings, the Court does not find that such fears as the applicant may have had as to the impartiality of the District Court's bench of 4 November 2005 and the Court of Appeal's bench of 29 September 2006 can be held to have been objectively justified. Accordingly, it follows that this part of the application is manifestly ill-�founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

45. 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

46. The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.

47. The Government submitted that the applicant's claims were ill-�founded.

48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

49. With regard to the claims in respect of non-pecuniary damage, the Court reiterates its findings in Shkalla (cited above, §§ 77-79), and Izet Haxhia (cited above, § 70) that when an applicant has been convicted in breach of her or his rights as guaranteed by Article 6 of the Convention, the most appropriate form of redress would be to ensure that the applicant is put as far as possible in the position in which she or he would have been had this provision been respected. The most appropriate form of redress would, in principle, be a new trial or the reopening of the proceedings if requested. The Court, therefore, concludes that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

B. Costs and expenses

50. The applicant also claimed EUR 20,000 for the costs and expenses incurred. He did not submit supporting documents.

51. The Government rejected the applicant's claims.

52. According to Rule 60 of the Rules of Court, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29 September 2009). In the absence of any supporting documents submitted by the applicant, the Court rejects the claim in respect of costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the unfairness of the proceedings in absentia admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4. Dismisses the applicant's claim for just satisfaction.

Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithRobert Spano
RegistrarPresident