SULEJMANI v. ALBANIA
Inadmissible
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Mr Petrit Sulejmani, is an Albanian national, who was born in and is currently serving a prison sentence in Lushnjë, Albania. He was represented before the Court by Mr I. Thiée, a lawyer practising in Bonn, Germany. 2. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro, and, subsequently, by Ms L. Mandia of the State Advocate’s Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 31 October 2005 the Fier District Court (“the District Court”) convicted the applicant in absentia of aggravated offences relating to procurement of prostitution (Article 114/a § 4 of the Criminal Code). He was sentenced to ten years’ imprisonment and fined. He was represented by a lawyer (Z.), who had been appointed by his family. 5. On 4 April 2006 and 19 September 2007, following Z.’s appeals, the applicant’s conviction was upheld by the Vlora Court of Appeal (“the Court of Appeal”) and, later, by the Supreme Court. 6. On 23 October 2007 the applicant was arrested in Cologne by the German police on the strength of an Albanian arrest warrant. On 21 November 2007 the Albanian authorities requested his extradition. 7. In the course of the extradition proceedings, the Cologne Court of Appeal requested the Albanian authorities to give an assurance that the applicant would be re-tried if extradition were to take place. 8. On 25 January 2008 the Albanian Minister of Justice (“the Minister”) informed the German authorities that the applicant could lodge a request to appeal out of time. The relevant parts of the Minister’s letter read: “With reference to the request made concerning a right to retrial on behalf of Petrit Sulejmani given his trial in absentia, we hereby inform you that the person in question may effectively exercise his right to request an appeal out of time in accordance with Article 147 § 3 of the Code of Criminal Procedure within ten days of his hand-over in Albania.” 9. On the basis of that assurance the applicant was handed over to the Albanian authorities on 17 March 2008. 10. On 24 March 2008 the applicant lodged a request for leave to appeal out of time against his conviction. On 22 April 2008 the District Court dismissed the request on the ground that his conviction in absentia had become final and had acquired the force of res judicata. It found that the applicant had effectively exercised his right of appeal, since his representative, who had been appointed by the applicant’s family, had appealed against the judgment of 31 October 2005. 11. On 11 November 2008, 19 January and 8 October 2009 the applicant’s appeals were dismissed by the Court of Appeal, by the Supreme Court and by the Constitutional Court, respectively. 12. The relevant provisions of the CCP concerning an application for leave to appeal out of time are as follows: Article 48 – Counsel appointed by the defendant “1. The defendant has the right to appoint no more than two counsel. 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 147 – Leave to appeal out of time “1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time 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 appeal against the judgment where he can establish that he had no effective knowledge. 3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...) ... 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 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. ...” 13. 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 defendant or a lawyer appointed by him, within ten days of the date on which the defendant was effectively informed of the decision given in absentia. This right could not be exercised by the defendant’s family members if the defendant was not realistically aware of the decision in absentia. The application for leave to appeal out of time should be examined by the District Court, sitting in a three-judge formation. The District Court’s decision could be appealed to the Court of Appeal and, thereafter, to the Supreme Court. 14. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010, the Constitutional Court decided 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 defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family.