CASE OF IZET HAXHIA v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Altina Xhoxhaj;David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
6. The applicant was born in 1966. He used to be the bodyguard of the then Albanian President, Mr Sali Berisha. At the time of the introduction of the application, he was detained in Turkey pending the outcome of his extradition to Albania. 7. On 12 September 1998 at about 9.15 p.m. Mr Azem Hajdari, a Member of Parliament (“MP”), and his bodyguards B.C and Z.N were shot as they came out of the Democratic Party (“DP”) headquarters in Tirana. Mr Hajdari and B.C died the same day in hospital. The second bodyguard Z.N was seriously injured. Mr Hajdari was a leading member of the DP which was one of the two main political parties in Albania and, at the material time, in opposition. A criminal investigation was opened into the murder. 8. On 13 January 2001 the prosecutor’s office issued an arrest warrant in respect of the applicant, on suspicion of involvement in the assassination of the MP and of one of his bodyguards as well as in the attempted murder of the other bodyguard. The arrest of four other people in connection with the murder was also ordered by the prosecutor. 9. On 31 January 2001 the Tirana District Court (“District Court”) ordered the applicant’s arrest. He was represented by a court-appointed lawyer. 10. On 3 March 2001 the District Court declared the applicant a fugitive after unsuccessful attempts to locate him. The decision stated that the applicant’s family did not know of his whereabouts. His neighbours had also mentioned that no one had lived in the applicant’s residence for two years. 11. On 13 March 2001 the prosecutor lodged a bill of indictment with the District Court. The applicant and four other co-accused were indicted on charges of having participated in, or organised, the assassination of the MP, his bodyguard and the attempted murder of civilians. 12. The trial proceedings against the applicant were conducted in absentia. He was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 13. On 29 April 2001 the District Court convicted the applicant in absentia. He was sentenced to twenty-five years’ imprisonment. 14. The applicant’s family-appointed lawyer as well as the co-accused appealed against the conviction to the Court of Appeal and the Supreme Court. 15. On 9 July 2002 and 14 February 2003 the Court of Appeal and the Supreme Court, respectively, upheld the District Court’s decision. The applicant was represented by the family-appointed lawyer. 16. The applicant’s family-appointed lawyer did not lodge a constitutional appeal, owing to the lack of a power of attorney to do so. The constitutional appeals of two of the co-accused, concerning the overall unfairness of the proceedings, were declared inadmissible by the Constitutional Court on 9 July 2003 on the ground that the appeals did not disclose a breach of the right to a fair trial. 17. A detailed account of the facts, the criminal investigation and the domestic courts’ decisions has been described in Haxhia v. Albania, no. 29861/03, 8 October 2013, not yet final and Mulosmani v. Albania, no. 29861/03, 8 October 2013, not yet final. 18. On 3 June 2006 the applicant was arrested by the Turkish authorities, apparently on the basis of an arrest warrant issued by the Albanian authorities. It would appear that the Albanian authorities requested the applicant’s extradition. A copy of the extradition request has not been submitted to this Court. No further information has been provided by the parties as to the outcome of the extradition proceedings in Turkey. 19. The relevant provisions of the CCP as regards the appointment of and representation by a counsel read as follows: Article 48 – Counsel appointed by the accused “1. The accused has the right to appoint no more than two lawyers. 2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel. 3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”. Article 410 – The defendant’s appeal “2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law”. 20. The relevant provisions of the CCP as regards an application for leave to appeal out of time read as follows: “Article 147 – Leave to appeal out of time “1. The prosecutor, the accused, the private parties and the defence counsel may request the reopening of the time-limit if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure. 2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision. 3. An application for the reopening of the time allowed for appeal 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 proceeding”. 4. The application is examined by the court seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj). 5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case. 6. An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time”. Article 148 – The effects of leave to appeal out of time “1. The court which grants leave to appeal out of time, upon request of the party and in so far as it is possible, orders that those actions in which the party was entitled to participate be carried out again.” 21. Articles 449–461 of the CCP govern the application for review of a final judgment. Article 450 – Cases for review An application for review may be lodged: a) when the facts of the grounds of the decision do not comply with those of another final decision; (b) when the decision has relied on a civil court decision which has subsequently been quashed; (c) when, subsequent to the decision, new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and (d) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence”. 22. An application for review should be lodged with the Supreme Court. 23. Section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act states that “a final criminal decision against an extradited person, which was delivered in his absence, can be reviewed at that person’s request, provided that the Minister of Justice gave such an assurance to the requesting State. The application for review should be submitted within 30 days of the applicant’s arrival in the territory of Albania and its examination is subject to the provisions of the Code of Criminal Procedure”. 24. The relevant provisions of the Constitutional Court Act read as follows: Section 30 “1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law. 2. An individual’s appeal for a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation. If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the last instance body’s decision”. 25. On 3 May 2007 and 10 October 2007 the Gjirokastra District Court granted two accused’s applications for leave to appeal out of time against their conviction in absentia. The accused made their applications following their extradition to Albania. In the meantime, they have lodged two separate applications with this Court (Hysi v. Albania, no. 72361/11 and Malo v. Albania, no. 72359/11) about the fairness of the re-trial. Those applications are pending on the date of the adoption of the present judgment. 26. On 2 November 2010 the Shkodra District Court granted an accused’s application for leave to appeal out of time against his conviction in absentia. The accused made that application following his extradition to Albania (see the Supreme Court’s decision no. 37/2011 for more information). 27. In its unifying decision no. 2 of 14 October 2002, the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him, within ten days of the date on which the accused was effectively informed of the decision given in absentia (decision no. 2/2002). This right could not be exercised by the accused’s family members if the accused was not realistically aware of the decision in absentia. The application for leave to appeal out of time shall be examined by the District Court, sitting in a three-judge formation. The District Court’s decision can be appealed to the Court of Appeal and, thereafter, to the Supreme Court. However, the last finding was rectified by the Constitutional Court’s decision no. 31/2012 (see paragraph 36 below). 28. In its unifying decision no. 1 of 20 January 2011, the Supreme Court Joint Benches examined three issues concerning an application for leave to appeal out of time (decision no. 1/2011). The appellant had been convicted in absentia. His family-appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to the Court of Appeal. The lawyer’s subsequent appeals on the merits of the case were rejected by the Court of Appeal and the Supreme Court. Following his extradition to Albania, the appellant was granted leave to appeal out of time against the Court of Appeal’s judgment to the Supreme Court. He was represented by a lawyer of his own choosing in the proceedings before the Supreme Court Joint Benches. 29. In the first place, the Supreme Court Joint Benches ruled that, when an appeal had been previously examined and rejected by a Supreme Court’s bench, in proceedings in absentia in which the accused was represented by a family-appointed lawyer in accordance with Articles 48 § 3 and 410 § 2 of the CCP, neither the accused nor his lawyer could (re)lodge an application for leave to appeal out of time against a Court of Appeal’s decision on the grounds that the accused had not been informed of the decision in absentia (me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit) as this would run counter to the principle of res judicata. The same reasoning would apply to an application for leave to appeal out of time against a District Court’s decision. 30. Secondly, the Supreme Court Joint Benches held that only when a higher court dismissed an appeal as having been time-barred, without examining the merits or the lawfulness of the complaints raised in the grounds of appeal, would the accused have a right to lodge an application for leave to appeal out of time in accordance with Article 147 § 1 of the CCP. 31. The third finding concerned the effect of an appeal lodged by an accused, in the absence of a co-accused’s appeal, on the latter’s application for leave to appeal out of time. The Supreme Court Joint Benches held that, as a rule, “in criminal proceedings against several co-accused, the court should not grant an accused’s application for leave to appeal out of time, if it is proved that the [merits of the] case were examined upon the appeal lodged by a co-accused”. However, “only when a[n] [co-accused’s] appeal has been declared inadmissible on the strength of Article 420 of the CCP [non-compliance with formal requirements] and, only when the court solely examined [the merits of] that co-accused’s appeal, can the accused, who did not lodge an appeal, seek leave to appeal out of time against a court’s decision given in absentia”. 32. On 5 October 2011, following two accused’s applications for leave to appeal out of time, the Supreme Court, relying on its unifying decision no. 1/2011, rejected those applications (decisions nos. 121/2011 and 122/2011). The Supreme Court held that the accused’s lawyers, who had been appointed by family members in accordance with Articles 48 § 3 and 410 § 2 of the CCP, had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court. Consequently, their conviction in absentia “had acquired the force of res judicata” which barred any re-trial. 33. Following extradition from Italy, an accused lodged an application for leave to appeal out of time. On 12 October 2011 the Supreme Court, relying on its unifying decision no. 1/2011, rejected that application on the ground that the accused’s family-appointed lawyer had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court (decision no. 130/2011). 34. On 5 September 2012 the Supreme Court, relying on its unifying decision no. 1/2011, held, inter alia, that the lower court had erred in granting the accused leave to appeal out of time, since the accused’s family-appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia (decision no. 218/2012). 35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, the Constitutional Court decided, by decision no. 30 of 17 June 2010 (decision no. 30/2010), that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused’s intention not to attend the proceedings. The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused’s family. The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family. 36. In response to a referral request by the Supreme Court on the constitutionality of Article 147 §§ 4 and 6 of the CCP, the Constitutional Court, by decision no. 31 of 17 May 2012 (decision no. 31/2012), clarified that the term “the court seized” provided for in Article 147 § 4 referred to the court against which decision the accused is seeking leave to appeal out of time. If the accused sought leave to appeal against an appellate court decision, the application for leave to appeal out of time should be [lodged with and] examined by the appellate court instead of the District Court. What confused the interpretation of the above term was the use of the words “with the court of appeal” in Article 147 § 6 of the CCP. The Constitutional Court decided that those words were unconstitutional and that they could be replaced by the words “with a higher court”. Since Article 147 of the CCP did not provide for the parties’ [direct] right to appeal against a decision granting leave to appeal out of time (Article 147 § 5 of the CCP) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time (Article 147 § 6 of the CPP), the Constitutional Court further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal. The law as it stood meant that, in the examination of the merits, the Supreme Court would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time, which was not compatible with the nature of proceedings before that instance. 37. On 17 September 2010 the Supreme Court held that an extradited person could make an application for review of the final conviction in absentia under Article 450 of the CCP, provided that the Minister of Justice had given an assurance to the requested State that the extradited person would be re-tried following extradition (decision no. 812/2010). In its reasoning, the Supreme Court relied on Article 3 of the Second Additional Protocol to the European Convention on Extradition which was ratified by Albania and, consequently, took precedence over national law in accordance with the Constitution as well as on section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act (see paragraphs 23 above and 42 below). In that case, the appellant was extradited from Spain on the strength of the Minister of Justice’s assurance that he would be given a re-trial. The Supreme Court accepted his application for review of the conviction in absentia under Article 450 of the CCP, in spite of the exhaustive grounds of review listed in Article 450. 38. On 19 January 2011 the Supreme Court, relying on its decision no. 812/2010, accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 9/2011). The appellant was extradited from the United Kingdom on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 39. On 16 February 2011 the Supreme Court accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 33/2011). The appellant was extradited from Germany on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 40. In decision no. 30 of 26 November 2009 the Constitutional Court accepted an appellant’s constitutional complaint against his trial in absentia, following his extradition to Albania. The appellant had been convicted by a final decision of the Supreme Court on 24 March 2000 in absentia, and was extradited to Albania on 4 June 2008. The Constitutional Court found a breach of the appellant’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him. 41. In decision nos. 83 of 5 July 2013 and 118 of 30 October 2012, the Constitutional Court found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the two-year statutory time-limit, which had started to run on the date they were extradited to Albania. In both cases, the appellants were separately convicted in absentia by Supreme Court decisions of 2001 and 2004. They were extradited on an unspecified date in 2007, one from the United Kingdom and the other from Germany. Upon extradition, they lodged separate applications for leave to appeal out of time, but these were rejected by the Supreme Court on 6 May 2011 and 19 January 2012 respectively. The Constitutional Court held that, having regard to the Supreme Court Joint Benches’ unifying decision no. 1/2011 (see paragraph 28 above), it was not open to the appellants to lodge an application for leave to appeal out of time, as their family-appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia. The appellants should have lodged their constitutional complaints within the two-year statutory time-limit, which had started to run on the date of their extradition to Albania, when they had been notified of the decisions given in absentia. Instead, they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time, after the expiry of the two-year statutory time-limit. 42. The European Convention on Extradition was ratified by Albania on 19 May 1998 and it entered into force on 17 August 1998. Article 3 of its Second Additional Protocol states as follows: “Article 3 – Judgments in absentia 1. When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited. 2. When the requested Party informs the person whose extradition has been requested of the judgment rendered against him in absentia, the requesting Party shall not regard this communication as a formal notification for the purposes of the criminal procedure in that State”.