CASE OF BALLIU v. ALBANIA
No violation of Art. 6
Georg Ress;Mark Villiger
8. The applicant was born in 1971 and is currently serving a prison sentence in Peqin Prison in Albania. 9. In criminal proceedings against armed gangs operating during the political turmoil in Albania from March to September 1997, the Elbasan public prosecutor's office accused the applicant of being one of the instigators of an armed gang known as the “Kateshi Gang”. The gang, organised as a military commando, aimed to avenge the murder of their members in conflicts with other gangs and was financed by extorting money from various businessmen in the area. 10. In 1999 the applicant was charged before the Durrës District Court with five counts of murder, two counts of attempted murder, one count of possession of military weapons and one count of creating and participating in an armed gang. 11. At public hearings before the court on 25 June 1999, 13 September 1999 and 10 December 1999 the applicant's lawyer, Mr Leli, was present. However, during the period from 10 December 1999 to 15 February 2000 the lawyer did not assist the applicant, nor did the latter have an officially assigned lawyer. The applicant submitted that at the hearings during that period the public prosecutor's office had summoned witnesses against him, questioned witnesses who were present and also produced other evidence against him. The applicant's lawyer had summoned two witnesses on the applicant's behalf but they did not appear at the trial. 12. According to the applicant's submissions, no defence counsel assisted him during the stage at which the parties made their final submissions. In this context, it transpires from the minutes of the public hearings that the applicant's lawyer was absent without reason and that the applicant refused to make his closing defence submissions himself. In that connection, the applicant complained that he had requested the court to officially assign him a defence lawyer, but had not received a reply. 13. According to the Government's submissions, the first-instance court proceedings lasted seven months and 21 hearings were arranged. The court's hearings were adjourned on several occasions as a result of the unjustified absence of lawyers, especially the applicant's lawyer. The latter was absent at seven consecutive court hearings without giving any reasons. 14. In all, only eleven hearings were actually held and ten could not take place on account of the lawyers' absence. the court then ordered the assignment of Mrs Meta, an official lawyer, who was present at the hearing on 28 january 2000. However, the applicant refused to be defended by a lawyer not chosen by him. the court accordingly discharged the officially assigned lawyer and continued the proceedings in the applicant's presence, but without any defence lawyer. 15. By letter of 13 December 1999 the Durrës District Court informed the Minister of Justice, among others, of the misconduct on the part of the applicant's counsel and requested him to intervene in the matter. However, no disciplinary measures relating to Mr Leli were taken by the Tirana Bar. 16. On 15 February 2000 the Durrës District Court found the applicant guilty and sentenced him to life imprisonment. 17. On 21 February 2000 the applicant lodged an appeal with the Durrës Court of Appeal against the judgment of 15 February 2000. He alleged that during the District Court hearings he had been denied a fair trial in that he had not been assisted by a lawyer during the first two months of the trial. Such a lawyer would have enabled him to prepare his defence and to summon the defence witnesses. He claimed that he had not been assisted even in the presentation of his final submissions. He also claimed that he had been abroad during the period when one or more of the crimes with which he had been charged had been committed, and produced customs stamps in his passport to prove that he had left the country. In his appeal, the applicant did not request the examination of any witnesses. 18. On 19 April 2000 the Court of Appeal upheld the District Court's judgment of 15 February 2000, while making several changes to the sentences imposed for the different counts. The changes concerned did not modify the sentence of life imprisonment. 19. On 19 May 2000 the applicant lodged an appeal with the Supreme Court, alleging that, in breach of his constitutional rights, he had been denied the right to be legally represented in the proceedings. He complained in particular that, although he had not been duly represented, the District Court had proceeded to examine witnesses against him and to consider other evidence. 20. On 7 December 2000 the Supreme Court upheld the Court of Appeal's decision on the following grounds: “The violations alleged by the appellant were noted and redressed by the Court of Appeal without having a significant influence on the substance of the first-instance judgment. During the pre-trial stage and also the trial itself, the accused was granted legal assistance. In the court's opinion, the unjustified absence of defence counsel, in agreement with the accused, in order to adjourn the trial could not have as a consequence the absolute nullity of the District Court's judgment.” 21. The applicant then lodged a complaint with the Constitutional Court, relying on Article 131 (f) of the Constitution. On 19 April 2001 the Constitutional Court, in accordance with section 31 of the Constitutional Court (Organisation and Operation) Act (Law no. 8577) of 10 February 2000, decided de plano to declare the complaint inadmissible as being “outside its jurisdiction”. 22. The relevant provisions of the Albanian Constitution provide: “During criminal proceedings everyone has the right: ... (ç) to defend himself or to be assisted by defence counsel chosen by him; to communicate freely and privately with him, and to be provided with defence counsel free of charge if he does not have sufficient means; (d) to question witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.” “1. The freedom, property and rights recognised in the Constitution and by law may not be infringed without a fair hearing. 2. In order to protect his constitutional and legal rights, freedoms and interests, or when an accusation has been made against him, everyone has the right to a fair and public trial, within a reasonable time, by an independent and impartial tribunal established by law.” 23. Insofar as relevant, the Albanian Code of Criminal Procedure provides: “... 5. Then the presence of a defence lawyer is required and the selected or appointed defence lawyer has not been provided, has not appeared or has abandoned the defence, the court or the prosecutor shall appoint another lawyer as substitute, who shall exercise the rights and assume the obligations of the defence lawyer.”