CASE OF MUCA v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
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 reexamination. 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