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URL: http://www.bailii.org/eu/cases/ECHR/2018/421.html
Cite as: CE:ECHR:2018:0522JUD007236111, [2018] ECHR 421, ECLI:CE:ECHR:2018:0522JUD007236111

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SECOND SECTION

CASE OF HYSI v. ALBANIA

(Application no. 72361/11)

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 Hysi 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. 72361/11) 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 Ardit Hysi ("the applicant"), on 7 November 2011.

2. The applicant was represented by Mr A. Meta and Mrs N. Meta, lawyers practising in Tirana. The Albanian Government ("the Government") were represented by their then Agent, Ms L. Mandia of the State Advocate's Office.

3. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention about his trial in absentia.

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

5. The Government implicitly objected to the examination of the case by a Committee (Article 28 § 1 (b)), arguing that it included issues that were not the subject of the Court's well-established case-law. The Court accepts that objection.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in Qesarat, Tepelenë, in 1977. He is currently serving a prison sentence.

7. On 14 January and 10 November 2005, following proceedings in absentia, the Gjirokastër District Court and the Court of Appeal, respectively, convicted the applicant of attempted theft resulting in death in collusion with others and sentenced him to seventeen years' imprisonment. That decision became final on 9 February 2007 after the Supreme Court dismissed an appeal by the applicant's lawyer. It appears that the applicant was represented by a lawyer appointed by his family throughout the court proceedings.

8. It appears that on 30 March 2007 the applicant was extradited from Greece to Albania.

9. On 3 May 2007 the Gjirokastër District Court allowed a request by the applicant to appeal out of time and he lodged an appeal against his conviction in absentia.

10. On 12 November 2007 the Gjirokaster Court of Appeal while requalifying the charges against the applicant on the basis of the evidence obtained during the proceedings in absentia, upheld the applicant's conviction, ruling that it had become res judicata.

11. By a final decision of 7 October 2009 the Supreme Court upheld the applicant's conviction as decided in the Gjirokastër District Court's decision of 2005, ruling that it had become res judicata and that the facts and law in the case had been examined previously. It further noted that leave to appeal out of time should not have been granted as the case had become res judicata.

12. On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court against the Supreme Court's decision, complaining, inter alia, about the fact that the domestic courts had not given him the possibility of a fresh factual and legal determination of the criminal charge.

13. On 9 May 2011 the applicant's lawyer was notified of the Constitutional Court's decision to dismiss his appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. The relevant domestic law and practice at the material time as regards proceedings in absentia have been described in detail in Shkalla v. Albania (no. 26866/05, § § 28-35, 10 May 2011), and Izet Haxhia v. Albania (no. 34783/06, §§ 19-42, 5 November 2013).

15. The relevant provisions at the material time as regards the scope of the examination of an appeal by the Court of Appeal, the reopening of the judicial examination of a case (përsëritja e shqyrtimit gjyqësor) by the Court of Appeal, and the competences of a court of appeal were described in detail in Mulosmani v. Albania (no. 29864/03, § 106, 8 October 2013).

16. On 30 March 2017 the Code of Criminal Procedure ("the CCP") was amended by Law no. 35/2017 and the new provisions entered into force on 1 August 2017. The relevant new provisions applicable to the present case read as follows:

Article 147 - Leave to appeal out of time (rivendosja në afat) (as amended in 2017)

"1. The prosecutor, the defendant, the victim or accusing victim, and the private parties are allowed to have the time-limit reset if they establish that they were unable to comply with the time-limit owing to unforeseen events or force majeure.

2. Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceedings.

3. An application for the resetting of the time-limit for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure. The application shall be examined by the authority seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj).

4. An appeal against a refusal to grant leave to appeal out of time may be lodged with the court within five days ...".

Article 410 - The defendant's appeal (as amended in 2017)

"2. Defence counsel may lodge an appeal against a conviction in absentia in so far as he has been specifically authorised by the defendant, by means of a power of attorney issued in accordance with the law, or a statement made at the hearing".

Article 420 § 1 - Leave to appeal out of time (rivendosja në afatin e ankimit) (added in 2007)

"1. The parties are allowed to have the time-limit reset if they establish that they were unable to comply with the time-limit owing to unforeseen events or force majeure ...

2. In the event of trial in absentia [as a result of the defendant's withdrawal from attending the proceedings], the defendant may request the resetting of the time-limit for appealing against the decision if he can establish that he has not been notified of the decision.

3. An application for the resetting of the time-limit for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure. For the case provided for in paragraph 2 of this Article, an application must be lodged within ten days of the date on which the defendant effectively acquires knowledge of the decision. Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceedings.

...

8. An appeal against a refusal to grant leave to appeal out of time may be lodged with the court of appeal within five days ...".

Article 450 - Cases for review (as amended in 2017)

"An application for review [of a final decision] may be lodged:

a) if the facts on which the decision was based do not comply with those of another final decision;

(b) if the [court rendering the] decision has relied on a civil or administrative court decision which has subsequently been quashed;

(c) if, subsequent to the decision, new evidence has emerged or has been found which, independently or together with previous evidence, proves that the decision is wrong;

(d) if it is proved that the decision was given as a result of the falsification of judicial acts or another fact that constitutes a criminal offence.

(e) if the European Court of Human Rights has adopted a judgment which makes a review of the case necessary ...

(f) if the extradition of a person convicted in absentia is granted on the explicit assurance that the case will be reviewed. The application for review shall be lodged within thirty days of the date on which the person is extradited...

(g) if the person is tried in absentia ... and is asking that the case be reviewed. The application for review should be lodged within thirty days of the date on which the defendant acquired knowledge [of the trial in absentia] ...".

III. COUNCIL OF EUROPE MATERIAL

17. On 21 September 2017 the Committee of Ministers gave a decision on the execution of the judgment in the case of Shkalla (cited above) concerning, among other matters, the Albanian authorities' failure to reopen proceedings in absentia. This decision, which was adopted at its 1265th meeting, stated, in so far as relevant:

"The Deputies

1. noted with satisfaction the individual measures taken in these cases, in particular that all the applicants have had an effective possibility to obtain reopening of the impugned proceedings and that, for those applicants who requested it, guarantees were given that the new proceedings either had been or would be conducted in accordance with the requirements of Article 6 of the Convention and that, pending these proceedings, the applicants could request release; considered accordingly that no further individual measures are required in this group of cases;

...

3. encouraged the authorities rapidly to finalise the ongoing reform of the judicial system to prevent further violations concerning the lack of guarantees surrounding criminal proceedings in absentia, the right to defend oneself in court and the appearance of witnesses; decided to continue their supervision of these measures in the cases of Caka, Cani and Izet Haxhia, and to close the similar cases Berhani and Shkalla".

18. On 7 December 2017 the Committee of Ministers gave a decision on the execution of the judgment in the case of Izet Haxhia (cited above) concerning, among other matters, the Albanian authorities' failure to reopen proceedings in absentia. This decision, which was adopted at its 1302nd meeting, stated, in so far as relevant:

"The Deputies

...

2. welcomed the general measures taken, in particular the legislative amendments to the Code of Criminal Procedure adopted on 30 March 2017 concerning the guarantees surrounding criminal proceedings in absentia, the right to defend oneself in court and the appearance of witnesses; considered that the adopted general measures are sufficient to prevent similar violations and that these cases can be thus closed".

19. In the resolution of the same day, the Committee of Ministers stated, in so far as relevant:

"The Deputies

...

Recalling the respondent State's obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum;"

20. By this resolution, the Committee of Ministers closed the examination of the Izet Haxhia judgment.

THE LAW

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

21. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention about the unfairness of the proceedings in absentia. Those provisions read as follows:

"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:

...

(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..."

22. The Government contested the applicant's claims.

A. Admissibility

23. The Government submitted that the Albanian State was in the process of judicial reform, with a view to improving legislation and guaranteeing the fundamental rights of individuals. In the framework of the reform programme, the State had made essential amendments to the criminal legislation by means of Law no. 35/2017 of 30 March 2017, namely to Articles 410 and 449-451 of the CCP and the introduction of a new provision, Article 420 § 1. They also submitted that the Committee of Ministers had closed the examination of the judgments in the cases of Shkalla v. Albania (no. 26866/05, 10 May 2011), and Izet Haxhia v. Albania (no. 34783/06, November 2013).

24. The Government also submitted that the domestic shortcomings identified in the cases of Shkalla and Izet Haxhia (cited above), which also concerned the present case, had been addressed by the general measures adopted in the framework of the judicial reform, in order to prevent similar violations in the future relating to the unfairness of criminal proceedings.

25. The applicant failed to submit any observations. He did, however, maintain the correspondence with the Court, indicating his interest in pursuing the application.

26. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see for example Baumann v. France, no. 33592/96, § 47, ECHR 2001-�V (extracts). In this light, the Court will examine whether the Government in 2017 introduced any new effective remedy which the applicant could make use of taking account of the Government's explicit reference to those provisions, which the Court considers appropriate to treat as a preliminary objection.

27. Firstly, the Court notes that leave to appeal out of time introduced under new Article 420 § 1 of the CCP provides that such an application must be lodged within ten days of the date on which the defendant effectively "acquires knowledge" of the decision. Furthermore, leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceedings. The Court therefore concludes that as the applicant was informed of his conviction in absentia on 30 March 2007 at the latest (see paragraph 8 above), he cannot use such a remedy.

28. Secondly, the Court notes that under Article 450, subparagraphs (f) and (g) as amended, an application for review of a final decision must be submitted within thirty days of the date on which the person is extradited, or of the date on which the defendant became aware of the trial in absentia. Accordingly, having regard to the circumstances of the case, the Court concludes that the applicant cannot use that remedy either.

29. Thirdly, the Court notes that there is no new provision in the CCP allowing the domestic courts to examine without any time-limit old cases in which the trial was held in absentia.

30. Fourthly, the Court notes that the Government did not submit any domestic case-law where the new provisions of the CCP had been applied in circumstances similar to those in the present case.

31. Lastly, the Court notes that the Committee of Ministers considered that the general measures adopted were sufficient to prevent similar violations. However, in so far as the matter did not arise in the cases of Shkalla and Izet Haxhia (cited above), the Committee of Ministers did not decide that the general measures adopted would prevent similar violations in respect of old cases in which the trial had been held in absentia, where the time-limits for the use of remedies introduced under the new provisions of the CCP had already expired. In addition, the Court makes reference to the importance of the individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum (see paragraph 18 above).

32. For all the above reasons, the Court concludes that the new remedies introduced in 2017, which may be effective in situations subsequent to the entry into force of the new provisions of the CCP, are not applicable to the present case. Accordingly, the Court rejects the Government's preliminary objection.

33. The Court notes that the application 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

34. In his application form the applicant maintained that the proceedings against him had been unfair as they had been held in absentia. He had at no time waived his right to appear in court. He had not been aware of the proceedings against him and had not kept in contact with members of his family. He had tried to escape to Greece as he had been afraid of a blood feud with the victim's family. He further maintained that a fresh determination of the criminal charge should have taken place after the District Court had accepted his request for leave to appeal out of time on 3 May 2007. That obligation on the part of the authorities had been provided for under Article 147 of the CCP and confirmed by the Constitutional Court in decision no. 30 of 17 June 2010 (see "Relevant Domestic Law and Practice" in paragraph 14 above).

35. The Government accepted that the applicant had been tried and convicted in absentia. However, they argued that the domestic proceedings had not been unfair. They also contended that the applicant had been represented either by a family-appointed lawyer or a court-appointed lawyer and that his defence rights had been respected. They further submitted that a fresh determination of a criminal charge was considered as a new trial. They referred to Articles 425, 427 and 428 of the CCP, which provided for an examination of an appeal by the Court of Appeal and the reopening of the judicial examination of a case by the Court of Appeal and defined the competences of such a court (see paragraph 15 above). They also submitted that the applicant's request for leave to appeal out of time had been based on the same arguments as those submitted by his defence during the trial in absentia.

36. 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 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).

37. The Court further reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. In the circumstances 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 were unfair. It will therefore confine its examination to that point (see Shkalla, cited above, § 67).

38. In the present case it was not disputed by the parties that the applicant was tried and convicted in absentia. It has not been shown that the applicant had sufficient knowledge of the legal proceedings against him. In fact, it was established that he was not informed of the conviction in absentia until 30 March 2007, when he was surrendered to the Albanian authorities (see paragraph 8 above). Nor has it been shown 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 (see Izet Haxhia, cited above, § 63). Furthermore, even though the Gjirokastër District Court granted the applicant's request for leave to appeal out of time under Article 147 of the CCP, the Court of Appeal and the Supreme Court did not subsequently make any fresh determination of the criminal charges against him. They noted that his original conviction had become res judicata, without giving any other reasons whatsoever for their refusal to make a fresh determination of his conviction (see Sejdovic, cited above, §§ 82-85).

39. In the light of the foregoing, the Court finds that the applicant did not have the opportunity of obtaining a fresh determination of the merits of the charges against him by a court which would have heard him in proceedings compliant with the fairness guarantees of Article 6 § 1.

40. There has therefore been a violation of Article 6 § 1 of the Convention on account both of the conduct of the proceedings in absentia and the applicant's being denied a fresh examination of the merits of the case.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. 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."

42. The applicant did not submit a claim for just satisfaction.

43. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

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

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