CASE OF CANI v. ALBANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
6. The applicant was born in 1969 and is currently serving a prison sentence in Lushnja, Albania. 7. Following a number of remittals of the case against the applicant and two other co-defendants, on 4 March 2004 Berat District Court (“the District Court”) convicted the applicant of several criminal charges committed in collusion with the co-defendants. The District Court found that the applicant had acted in aggravating circumstances in that he had been the perpetrator of one of the criminal offences, which had led to the death of a person, whereas the co-defendants had assisted in the commission of that offence. As regards the other criminal offences, the District Court found each co-defendant guilty as charged. The District Court sentenced the applicant to a cumulative sentence of life imprisonment. As the District Court had adopted the use of the summary procedure pursuant to the Code of Criminal Procedure (“the CCP”), the applicant’s sentence was commuted to twenty-five years’ imprisonment. 8. During the District Court proceedings the applicant was mainly represented by court-appointed lawyers. In the final stage of those proceedings, the applicant appointed counsel of his own choosing on the strength of a power of attorney signed on 18 February 2004, which, in so far as relevant, read as follows: “... I hereby authorise S.S as my special counsel and representative to defend and represent me before Berat District Court, the Court of Appeal and the Supreme Court in the trial of the criminal case as regards the charges provided in Articles ... of the Criminal Code. This case has been tried before and by a Court of Appeal decision has been remitted for fresh examination. In accordance with Article 352 of the CCP I request that the case be tried in my absence. I accept the charges levied against me and I authorise counsel to request the use of summary procedure pursuant to Article 403 of the CCP. Counsel has the right to lodge appeals against court decisions that are against my interests. ...” 9. On 12 March 2004 the applicant lodged an appeal with the Vlora Court of Appeal (“the Court of Appeal”). Although he admitted having committed the criminal offences, he challenged the penalty imposed. He argued that the trial court had failed to take account of some mitigating factors in his favour such as the remorse he had shown after committing the crime and his surrender to the authorities, his family’s difficult financial situation and the fact that he had a minor child, the lack of any previous criminal records and his low educational level. 10. On 4 May 2004 a hearing took place which was adjourned to 26 May 2004 in order to summon the applicant to appear before the court. On the same date, a letter was sent by the Court of Appeal to the Police Commissariat and the local prison authorities, requesting them to escort the applicant to the hearing scheduled for 26 May 2004. 11. The applicant did not attend the hearing on 26 May 2004. The court ordered an adjournment until 4 June 2004. The applicant’s representative was present at the hearing. Relevant excerpts from the record of the proceedings read: “The defendant Besnik Cani was summoned and did not appear. The file indicates that he has been informed and will attend the hearing (nga aktet rezulton se ka dijeni dhe do të marrë pjesë në gjykim).” 12. On 27 May 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 4 June 2004 as he had expressed the wish to attend. 13. The applicant did not appear at the hearing of 4 June 2004. The court ordered an adjournment until 18 June 2004. Relevant excerpts from the record of the proceedings read: “The file indicates that the [Police] Commissariat were informed of the need to escort him [to the Court of Appeal] but they did not do so. His lawyer was summoned and was present (nga aktet rezulton se ka dijeni komisariati për ta sjellë dhe nuk e solli).” 14. On 7 June 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 18 June 2004 as he had expressed the wish to be present at the hearing. A handwritten note at the bottom of the letter read: “[they] refused to sign, saying that they are not answerable to the Court of Appeal. [We] do not accompany prisoners. The court does not have any business with us. Send the letter to the Directorate General of Prisons in Tirana.” 15. The applicant was not present at the hearing on 18 June 2004, but his lawyer did attend. Relevant excerpts from the record of the proceedings read: “the lawyer [S.S.] said, “I represented the accused [Besnik Cani] by means of a power of attorney during [the proceedings in] the first-instance [court]. Thus, let us proceed with the hearing.” 16. The Court of Appeal decided to proceed with the hearing in the applicant’s absence as he was represented by his lawyer. 17. On 23 June 2004 the Vlora Court of Appeal sentenced the applicant to a cumulative term of twenty-five years’ imprisonment, reduced by one-third as a result of the use of the summary procedure. The relevant parts of the judgment read as follows. “... The Court [of Appeal] considers that the District Court characterised the criminal offences correctly, but the sentence [of imprisonment] should be changed in the light of large differences in the penalties imposed on each defendant. All the co-defendants are almost in the same position as far as their collusion is concerned and their respective role in the commission of the offences. Despite the fact that the defendant was the perpetrator of one of the offences, there should not be such a large difference in the sentences imposed. Having regard to Article 141 of the Criminal Code which aims at excluding the application of life imprisonment, having regard to the remorse shown by the defendant during the proceedings, his surrender to the authorities following the commission of the crime, and his role as the perpetrator in the commission of the criminal offence, the court considers that he should be ... cumulatively sentenced to twenty-five years’ imprisonment. In these circumstances, having regard to the appeal lodged by the applicant, the District Court decision should be amended in so far as the sentence imposed on the defendant is concerned.” The relevant provisions of the operative part of the judgment read as follows: “... Pursuant to Article 55 of the Criminal Code the accused Besnik Cani is cumulatively sentenced to 25 years’ imprisonment. Pursuant to Article 406 of the Code of Criminal Procedure one third of the sentence imposed on Besnik Cani is reduced.” 18. On an unspecified date the prosecutor lodged an appeal with the Supreme Court on the grounds of an erroneous application of the criminal law. He stated, inter alia, that the penalty imposed by the Court of Appeal, which had not ordered life imprisonment for the applicant for being the perpetrator of a crime that had resulted in the death of a person, did not correspond to the serious danger to society posed by the applicant and the serious criminal consequences of that offence. 19. It would appear that the applicant did not make any written submissions to the Supreme Court in response to the prosecutor’s appeal. On 15 June 2005 the applicant’s brother appointed A.K to represent the applicant before the Supreme Court. 20. At the hearing of 15 June 2005 before the Supreme Court, the applicant was represented by A.K, who requested the court to dismiss the prosecutor’s appeal. On 15 June 2005 the Supreme Court quashed the Court of Appeal judgment and upheld the District Court judgment. The record of the hearing states that the applicant was represented by his lawyer. The relevant parts of the Supreme Court judgment read: “The Supreme Court, having examined the documents in the investigation file and the court file, having examined the grounds of appeal lodged by the prosecutor, considers that the Court of Appeal judgment, which amended the District Court judgment by changing the defendant’s [the applicant’s] conviction, was taken on the basis of an erroneous application of the criminal law, particularly Article 47 et seq. of the Criminal Code, which determine the manner of imposing a sentence. The Supreme Court draws this conclusion because the Court of Appeal did not duly consider the severity of the criminal offences committed by the accused, the serious danger to society that the accused poses by continuing to commit criminal offences, the serious degree of guilt, the grave criminal consequences, and the commission of the criminal offence on more than one occasion, using weapons and acting in collusion with others. The reduction of the sentence by the Court of Appeal on the ground that the accused assisted justice by showing remorse for the offences he had committed and by requesting the use of the summary procedure, is not founded in law. The acceptance of the charges by the accused and his request for the use of the summary procedure assist the speedy rendering of justice. The law takes this into account by reducing the penalty by one-third in accordance with Article 406 of the CCP. A further reduction of the defendant’s sentence, beyond the reduction entitled to by virtue of the application of Article 406 of the CCP, has resulted in a double reduction of the sentence for the same circumstances.” 21. The applicant lodged a constitutional complaint with the Constitutional Court, alleging violations of his right to attend the hearings of the Court of Appeal and of the Supreme Court. 22. On 10 February 2006 the Constitutional Court declared the complaint inadmissible, finding that the grounds of appeal fell outside its jurisdiction (pretendimet e paraqitura prej ankuesit nuk përfshihen në juridiksionin e Gjykatës Kushtetuese ...). 23. The relevant provisions of the Albanian Constitution read as follows. Article 31 “During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge if he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided with free legal counsel if he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.” Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or when a criminal charge is brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 131 “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 24. Article 48 § 3 provides that “the appointment of counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above.” 25. Article 350 provides that “when a defendant, even if in detention, ... does not appear at a hearing and it appears that the absence was caused by force majeure or any other obstacle which exempts him from any responsibility, the court, acting, inter alia, of its own motion, shall adjourn or suspend the judicial examination, set a date for a new hearing and order the renewal of the summons.” 26. Article 352 states that the accused should be represented by counsel when he requests or gives his accord for the judicial examination to continue in his absence. 27. Article 422 provides that any party may appeal against a first-instance court decision, which is the District Court decision. 28. Article 425 § 1 establishes the scope of the examination of an appeal by the Court of Appeal. It provides that the examination of a case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case, namely an examination of both the facts and the law. Article 425 § 3 proscribes reformatio in peius stating that “in an appeal lodged solely by the accused, the court cannot impose a heavier criminal sanction, order a more severe measure of restraint, or characterise innocence less favourably than the grounds relied upon in the impugned judgment.” 29. The Court of Appeal may make a complete re-assessment of the evidence obtained and examined by the first-instance court, in which case it decides afresh on the appellant’s guilt or innocence. Under Article 427 the Court of Appeal could re-open the judicial examination of a case (përsëritja e shqyrtimit gjyqësor). In the event that one of the parties requests the re-examination of evidence administered during the first-instance court proceedings or seeks the collection of additional new evidence, the Court of Appeal, when deemed necessary, may decide to reopen the judicial proceedings, in part or in whole (Article 427 § 1). In so far as evidence has been discovered subsequent to the first-instance court’s judgment or, in so far as evidence has been discovered in the course of the appeal proceedings, the Court of Appeal decides on a case-by-case basis about its admission (Article 427 § 2). The re-opening of a case may also be decided ex officio when deemed necessary (Article 427 § 3). The Court of Appeal may also re-examine evidence provided that the accused did not attend the first-instance court proceedings, either because he was not notified or because he was unable to attend those proceedings on lawful grounds (Article 427 § 4). 30. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the first-instance court decision, to amend the first-instance court decision, to quash the first-instance court decision and terminate the criminal proceedings, or to quash the first-instance court decision and remit the case for a fresh trial. 31. Court of Appeal decisions may be appealed against to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which have resulted in the court’s judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules which have affected the adoption of the judgment. 32. Article 434 provides that the Supreme Court shall examine the appeal in so far as points of law have been raised therein. It has the right to examine and to decide of its own motion and at any stage or instance of the proceedings legal issues which have not been examined before. Section 437 provides that the accused and private parties must be represented by a defence lawyer. As to the procedure, paragraph 5 of the said section states that the judge rapporteur introduces the case, followed by the prosecutor’s oral submissions and the defence lawyer’s pleadings. No counter-pleas are allowed. 33. Under Article 441 the Supreme Court can decide: a) to uphold the decision of the lower court; b) to modify the qualification of the criminal offence, insofar as the type, sentence and civil consequences are concerned; c) to quash the [lower court’s] decision and to adopt a judgment without remitting the case for a rehearing to the lower court; d) to quash the [lower court’s] decision and remit the case for a re-hearing; e) to quash the Court of Appeal’s decision and uphold the District Court’s decision. 34. The summary procedure is governed by Articles 403-406 of the Code of Criminal Procedure (“CCP”). The accused or his representative should make a request in writing for the use of a summary procedure, which is based on the assumption that the case can be decided on the basis of the case file as it stands, without submitting it to judicial examination. If the court grants the accused’s request for summary procedure, when giving its decision on the merits it reduces the penalty by one third. Life imprisonment is commuted to twenty-five years’ imprisonment. Both the prosecutor and the accused may appeal against the court’s decision. 35. The Supreme Court’s unifying decision No. 2 of 29 January 2003 stated, in so far as the summary procedure is concerned, the following. “... The summary procedure is important for the sake of judicial economy, because it simplifies and abridges the procedure, increases the expediency and effectiveness of a judicial examination, and consequently results in a benefit to the accused by reducing his penalty by one-third and by not imposing a sentence of life imprisonment. It is important to underline that this benefit should not be to the detriment of justice. For this purpose, the court accepts the accused’s request only when it is persuaded that it could resolve the case on the basis of the case file as it stands, without submitting it to judicial examination. ... The essence of the summary procedure is to admit the documents as collected during the criminal investigation and to avoid the consideration of other evidence at a hearing and the arguments relating thereto. ... The collection of other evidence and requests relating to their invalidity are not part of the summary procedure. The law provides that the case shall be resolved on the basis of the case file as it stands, which implies a mutual acknowledgment of acts and documents by the parties. It is the court’s obligation to assess whether a decision could be taken on the basis of the case file as it stands, without undermining justice and interfering with the lawful interests of the accused. The trial proceeds with the submission of the parties’ final conclusions, which make reference to the case file as it stands ... and the court takes a decision based thereon. If the parties complain that acts or documents are invalid, the court should revoke its decision for use of a summary procedure and order the continuation of a normal judicial examination.” 36. In three decisions (no. 764 of 9 September 2005, no. 720 of 20 October 2005 and no. 224 of 19 April 2006) the Supreme Court upheld the Court of Appeal’s decisions which had further reduced the defendants’ penalties, despite their having obtained a reduction by way of the application of the summary procedure by the District Courts. In further reducing the penalties, the Court of Appeal had regard to the defendants’ admission of guilt and signs of remorse. 37. In three other decisions (no. 2 of 12 January 2011, no. 11 of 10 January 2011 and no. 26 of 9 February 2011) the Supreme Court further reduced the defendants’ penalties, which had been imposed and reduced by virtue of the application of the summary procedure by the District Court and upheld on appeal. In reducing the penalties, the Supreme Court had regard to mitigating circumstances such as the defendants’ surrender to the authorities and their deep remorse over the commission of the crime.