CASE OF TOPI v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
6. The applicant was born in Peqin in 1977. He is currently serving a prison sentence. 7. In 1998 the applicant was implicated in the commission of the criminal offence of setting up and being a member of an armed gang and of other criminal offences. 8. On 4 February 1999 the prosecutor charged him with the offences of membership of an armed gang, attempted intentional murder and other crimes. The notification of the prosecutor’s charges was acknowledged by the applicant’s officially appointed lawyer. 9. It appears that throughout the investigation proceedings the applicant was represented by an officially appointed lawyer. 10. On 12 February 1999 the Elbasan District Court ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be traced. 11. On 19 February 1999 the Elbasan District Court declared the applicant a fugitive from justice after unsuccessful attempts to locate him. The decision stated that it was impossible to find him as it appeared that he had escaped to an unknown destination (këto kërkime nuk kanë bërë të mundur kapjen e të pandehurit pasi ai rezulton të ketë ikur në drejtim të paditur). 12. On an unspecified date the prosecutor decided to commit the applicant for trial. 13. On 28 May 1999 the Supreme Court transferred the case for examination to the Durrës District Court. 14. On 2 June 1999 the applicant’s father appointed a lawyer to represent the applicant before the domestic courts. 15. The trial proceedings against the applicant were conducted in absentia and he was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 16. On 15 February 2000 the Durrës District Court convicted the applicant in absentia of establishing and participating in an armed gang and attempted intentional murder. He was sentenced to fifteen years’ imprisonment. The decision was based on evidence from documents and witness testimony. 17. The applicant’s family-appointed lawyer and the other co-accused appealed against the conviction to the Durrës Court of Appeal (“the Court of Appeal”). On 19 April 2000 the Court of Appeal declined to examine the applicant’s appeal on the grounds that the applicant’s family had not given any express authority to the lawyer for such a procedure. However, the Court of Appeal examined the applicant’s case as part of its overall examination, having regard to the appeals of the other defendants. It convicted the applicant of the same offences as before and sentenced him to thirteen years’ imprisonment. 18. On 7 December 2000 the Supreme Court dismissed appeals by the applicant and other co-accused against the Court of Appeal’s decision of 19 April 2000. 19. On 16 September 2005 the applicant was arrested by the Czech authorities on the basis of an arrest warrant issued by Albania. 20. On 25 January 2006 the applicant was extradited to Albania. 21. On 1 March 2006 the applicant was officially informed of his conviction in absentia. 22. On 13 September 2007 the applicant lodged a constitutional appeal against the conviction in absentia. 23. On 24 October 2007 the Constitutional Court, sitting in camera, declared the appeal time-barred as the two-year time-limit had started to run on 7 December 2000. The Constitutional Court’s reasoning stated that throughout the proceedings the applicant had been represented by a courtappointed lawyer or a family-appointed lawyer and that accordingly he had had the opportunity to become acquainted with the proceedings brought against him.