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FOURTH
SECTION
CASE OF
CANI v. ALBANIA
(Application
no. 11006/06)
JUDGMENT
STRASBOURG
6 March 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Cani v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and
Fatoş Aracı,
Deputy
Registrar,
Having
deliberated in private on 8 November 2011 and on 14 February 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 11006/06) against the Republic
of Albania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Albanian national, Mr Besnik Cani (“the
applicant”), on 11 March 2006.
- The
applicant was represented by Mr V. Cano, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their then Agents, Ms S. Meneri and, subsequently, Mrs
E. Hajro.
- The
applicant alleged that the domestic proceedings determining his
sentence were unfair.
- On
1 February 2008 the President of the Fourth Section, to which the
case was allocated, decided to give notice of the application to the
respondent Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
- The
applicant and the Government each submitted written observations on
the admissibility and merits of the application (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1969 and is currently serving
a prison sentence in Lushnja, Albania.
Judicial proceedings against the applicant
- 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.
- 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.
...”
- 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.
- 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.
- 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).”
- 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.
- 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).”
- 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.”
- 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.”
- The
Court of Appeal decided to proceed with the hearing in the
applicant’s absence as he was represented by his lawyer.
- 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.”
- 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.
- 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.
- 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.”
- 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.
- 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
...).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- 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.”
B. The Code of Criminal Procedure (“the CCP”)
- 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.”
- 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.”
- 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.
1. Appeal proceedings
- Article
422 provides that any party may appeal against a
first-instance
court decision, which is the District Court decision.
- 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.”
- 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).
- 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.
2. The Supreme Court proceedings
-
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.
- 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.
- 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.
3. Summary procedure
- 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.
- 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.”
Supreme Court’s case-law as regards the
application of the summary procedure
- 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.
- 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that there had been a breach of Article 6
§ 1 of the Convention in conjunction with Article 6
§ 3 (c), in that he was denied the right to defend himself at a
public hearing before the Court of Appeal and the Supreme Court.
Article
6 §§ 1 and 3 (c) of the Convention, in so far as relevant,
read as follows.
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
....”
A. Admissibility
- The
Government did not raise objections to the admissibility of this
complaint. The Court finds that this complaint was introduced within
the six-month time-limit, running from the final domestic court
decision of 10 February 2006 (see Caka v. Albania, no.
44023/02, § 74, 8 December 2009). It further considers that this
complaint is not manifestly ill-founded. No other grounds for
declaring it inadmissible have been found. It therefore declares the
complaint admissible.
B. Merits
1. The parties’ observations
(a) The applicant
- The
applicant submitted that he had never waived his right to attend the
hearings before the Court of Appeal. In fact, he had expressed the
wish to be present at the hearings, a fact which, in his opinion, was
mentioned in the letters that the Court of Appeal had sent to the
national authorities with a view to securing his attendance.
- The
applicant further contended that despite his wish to attend the
hearings before the Court of Appeal, no court notification had
reached him in prison. He stated that the prison authorities had
prevented him from participating in the court hearings, acting in
total defiance of the court’s orders.
- The
applicant argued that the Court of Appeal was empowered to examine a
case thoroughly, irrespective of the grounds of appeal lodged with
it. In light of this fact and considering that he had been sentenced
to life imprisonment by the District Court, he considered that his
presence was required at the hearings before the Court of Appeal.
- The
applicant maintained that his case was similar to Kremzow
v. Austria, 21 September 1993, Series A no. 268 B. In
the instant case, as in Kremzow, the Supreme Court had ruled
in favour of the prosecutor’s appeal and aggravated the
applicant’s position by re-imposing the sentence of life
imprisonment. Such a conclusion, the applicant argued, could not have
been reached solely on the basis of the case file. The Supreme Court
should have given him the opportunity to be heard in person in order
to rule on the level of his involvement in the crimes he had been
charged with. The applicant further submitted that neither he nor his
lawyer had made any submissions to the Supreme Court.
(b) The Government
- The
Government submitted that the Court’s case-law allowed for
restrictions to the accused’s right to attend a hearing on
appeal, for example, where the accused had participated in the
first-instance court proceedings (see Ekbatani v. Sweden, 26
May 1988, Series A no. 134).
- The
Government stated that the applicant had requested the use of the
summary procedure, which had been granted by the District Court. The
summary procedure continued to apply even on appeal. Consequently,
the Court of Appeal’s jurisdiction was limited in that no
judicial examination was allowed. Since the applicant had appealed
against the District Court’s judgment, this meant that his
position would not be aggravated and the Court of Appeal would not
impose a heavier sentence.
- The
Government further pointed to the power of attorney of 18 February
2004, which had been signed by the applicant and according to which
he had accepted all the charges against him and had explicitly
requested in accordance with Article 352 of the CCP to be tried in
absentia.
- The
Government maintained that the Court had ruled that an accused’s
presence was not required at hearings before courts which examine
appeals on points of law. They explained that the procedure before
the Supreme Court required that parties be represented by their own
lawyers, who make submissions in writing and orally at a public
hearing. They submitted that the applicant had been duly represented
by counsel, as required by law, before the Supreme Court. The Supreme
Court had not examined any matters or evidence that would have
necessitated his presence at the hearing. At the end of the
proceedings, the Supreme Court, observing that the Court of Appeal
had misinterpreted the provisions concerning the use of the summary
procedure, had decided to uphold the District Court’s judgment.
In the Government’s view this marked the difference between the
instant application and the Court’s judgment in the case of
Kremzow v. Austria, cited above.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the guarantees in Article 6 § 3 (c) of the
Convention are specific aspects of the right to a fair trial set
forth in the first paragraph of this Article. Consequently, the
applicant’s complaint will be examined under the overall
fairness requirements of Article 6 of the Convention.
- In
the interests of a fair and just criminal process it is of capital
importance that the accused should appear at his trial (see Lala
v. the Netherlands,
22 September 1994, § 33, Series A no. 297-A; Poitrimol
v. France, 23 November 1993, § 35, Series A no. 277-A;
and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February
2004), both because of his right to a hearing and because of the need
to verify the accuracy of his statements and compare them with those
of the victim - whose interests need to be protected - and of the
witnesses (see Sejdovic v. Italy [GC], no. 56581/00, § 92,
ECHR 2006-II).
- The
personal appearance of the defendant does not assume the same crucial
significance for an appeal hearing as it does for the trial hearing
(see Kamasinski v. Austria, 19 December 1989, § 106,
Series A no. 168). The manner of application of Article 6 to
proceedings before courts of appeal does, however, depend on the
special features of the proceedings involved; account must be taken
of the entirety of the proceedings in the domestic legal order and of
the role of the appellate court therein (see Ekbatani v. Sweden,
cited above; and Monnell and Morris v. the United Kingdom,
2 March 1987, § 56, Series A no.115).
- Leave-to-appeal
proceedings and proceedings involving only questions of law, as
opposed to questions of fact, may comply with the requirements of
Article 6 even though the appellant has not been given the
opportunity to be heard in person by the appeal or cassation court,
provided that there has been a public hearing at first instance (see,
inter alia, Monnell and Morris, cited above, § 58
(leave to appeal); and Sutter v. Switzerland, 22 February
1984, § 30, Series A no. 74 (Court of Cassation)). However, in
the latter case the underlying reason is that the courts concerned do
not have the task of establishing the facts of the case, but only of
interpreting the legal rules involved (see Ekbatani, cited
above, § 31).
- Indeed,
even where an appeal court has full jurisdiction to review the case
on questions both of fact and of law, Article 6 does not always
require a right to a public hearing and a fortiori a right to
be present in person (see Fejde v. Sweden, 29 October 1991, §
31, Series A no. 212-C). Regard must be had in assessing this
question to, inter alia, the special features of the
proceedings involved and the manner in which the defence’s
interests were presented and protected before the appellate court,
particularly in the light of the issues to be decided by it (see
Helmers v. Sweden, 29 October 1991, §§ 31-32, Series
A no. 212-A), and their importance for the appellant (see Kremzow,
cited above, § 59; Kamasinski, cited above, §
106 in fine; and Ekbatani, cited above, §§ 27-28).
- In
legal systems where an appellate court acts not merely as a court of
revision but has to examine a case as to the facts and the
law and make a fresh re-assessment of the issue of guilt or
innocence, it cannot determine the issue without a direct
assessment of the evidence given in person by the accused for the
purpose of proving that he did not commit the act allegedly
constituting a criminal offence (see Dondarini v. San Marino,
no. 50545/99, § 27, 6 July 2004; Strzałkowski v. Poland,
no. 31509/02, § 41, 9 June 2009; and Sobolewski v. Poland
(no. 2), no. 19847/07, § 35, 9 June 2009).
- Neither
the letter nor the spirit of Article 6 of the Convention prevents a
person from waiving, of his own free will, either expressly or
tacitly, his entitlement to the guarantees of a fair trial. However,
such a waiver must, if it is to be effective for Convention purposes,
be established in an unequivocal manner and be attended by minimum
safeguards commensurate with its importance (see Hermi v. Italy
[GC], no. 18114/02, § 73, ECHR 2006 XII).
(b) Application of these principles to the
present case
- The
Court observes at the outset that it is master of the
characterisation to be given in law to the facts of the case. It does
not consider itself bound by the characterisation given by an
applicant or a government (see Berhani v. Albania, no. 847/05,
§ 46, 27 May 2010; and Scoppola v. Italy (no. 2) [GC],
no. 10249/03, § 54, ECHR 2009 ...). The Court notes that
the present case concerns matters of sentencing which involve the
determination of a criminal charge, notwithstanding that the question
of the applicant’s guilt has been determined, and attract
Article 6 guarantees (see Scoppola v. Italy (no. 2) [GC],
cited above, §§ 48-57 and §§ 132-145).
Whereas it is for the authorities to determine the sentence to be
imposed, the Court’s task is to examine whether the applicant
was afforded the guarantees of the fairness of the proceedings as a
whole.
- In
the circumstances of the instant case, the applicant did not raise
any complaints as regards the proceedings before the District Court.
He was initially represented by court-appointed lawyers and in the
final stage of the proceedings he was defended by counsel of his own
choosing who made submissions on his behalf after consulting the case
file.
- The
Court notes that on 18 February 2004, by way of his power of
attorney, and while the proceedings were still pending before the
District Court, the applicant requested of his own volition the use
of the summary procedure. The summary procedure entails undoubted
advantages for the accused as, in the words of the Supreme Court, it
“is important for the sake of judicial economy, because it
simplifies and abridges the procedure, increases the expediency and
effectiveness of judicial examination and, consequently results in a
benefit to the accused by reducing his penalty by one-third and by
not applying life imprisonment.” On the other hand, the summary
procedure entails a reduction of the procedural guarantees provided
by domestic law, in particular the possibility of requesting the
admission of new evidence not contained in the case file or the
arguments related to the already collected evidence.
- The
Court considers that the applicant, who was assisted by a lawyer, was
undoubtedly capable of realising the consequences of his request for
the use of the summary procedure. The applicant did not request in
his appeals that the use of the summary procedure should be
discontinued. However, under the Albanian CCP, the adoption of the
summary procedure does not entail a diminution of all procedural
safeguards, most notably the accused’s right to appeal against
the sentence imposed by lower courts and the accused’s right to
attend hearings (see paragraphs 36-37 above). Nor does the Supreme
Court’s unifying decision of 29 January 2003 support such an
interpretation.
- In
this connection, the Court notes that it was open to the applicant to
appeal against the sentence imposed by the District Court. Indeed, he
lodged an appeal against his sentence with the Court of Appeal,
arguing that his sentence should be reduced on account of the
existence of mitigating circumstances. In the event, taking account
of his grounds of appeal, the applicant was given a more lenient
sentence.
The
Court observes that under the relevant provisions of the Albanian law
of criminal procedure, the jurisdiction of an appeal court extends to
questions of both fact and law (see paragraphs 28 and 29 above). In
the grounds for its judgment, the Court of Appeal made findings
relevant to the applicant’s guilt. In the appeal proceedings,
as evidenced and documented by the Court of Appeal itself, the
applicant repeated his wish to attend the hearing of his appeal. In
response, the Court of Appeal adjourned the hearing three times in
order to secure the applicant’s presence. It is a matter of
regret that the penitentiary service failed to comply with the Court
of Appeal orders. On 18 June 2004 the applicant’s lawyer
requested the court to continue with the proceedings. In the event,
and having regard to the particular circumstances of the case, the
Court does not consider the applicant’s lawyer’s
statement to constitute a waiver of the applicant’s repeated
and unequivocal wish to attend the hearing.
- However,
the prosecutor considered that the applicant had been treated too
leniently and requested the Supreme Court to reinstate the District
Court’s sentence. The applicant was represented by counsel
before the Supreme Court. Under domestic law, he had no right to
attend the hearing in person and, as a matter of Convention law,
Article 6 did not guarantee him such rights before the Supreme Court,
whose jurisdiction was solely confined to a pure point of legal
interpretation, namely the scope of the Court of Appeal’s
powers of review under the CCP. In the event, the Supreme Court found
that the Court of Appeal had overreached its competence and upheld
the District Court’s sentence.
- The
Court finds nothing in the Supreme Court’s findings to suggest
that the Court of Appeal could not have further reduced the
applicant’s sentence. Indeed, in accordance with Article 428 of
the CCP, it was open to the Court of Appeal to modify the sentence
imposed by the District Court. The Government did not submit any
statute or domestic case-law to the effect that the adoption of the
summary procedure stripped the Court of Appeal of its power to reduce
the sentence imposed by the first-instance court. The Supreme Court’s
unifying decision of 29 January 2003 does not lend any support
whatsoever to such interpretation.
- On
the contrary, according to domestic case-law, and, particularly,
during the time that the applicant’s constitutional complaint
was being examined by the Constitutional Court, the Supreme Court
upheld two Court of Appeal decisions on 9 September 2005 and 20
October 2005, respectively, which had further reduced sentences
imposed by District Courts by way of the application of the summary
procedure (see paragraph 36 above). Most recently in 2011 the Supreme
Court itself handed down more lenient sentences, regardless of
whether defendants had obtained reductions by way of the application
of the summary procedure by lower courts (see paragraph 37 above). It
would therefore appear that this line of case-law and interpretation
of the criminal procedure provisions continues to prevail.
- The
Court further notes that at no stage in the appeal
proceedings, whether in the proceedings before the Court of
Appeal or before the Supreme Court, did the applicant have the
opportunity to argue in person that there were mitigating factors,
such as his remorse following the crime, his lack of previous
criminal convictions, his background and his family’s economic
hardship, which would have militated in favour of imposing a lower
sentence than the one handed down by the District Court. For the
Court these are all matters on which, as a matter of fairness, he
should have been heard in person. There has accordingly
been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of the non-pecuniary
damage suffered as a result of the breach of his Convention rights.
- The
Government did not make any comments.
- Having
regard to the violation found in this case, the Court considers that
an award for non-pecuniary damage is justified. Making an assessment
on an equitable basis, the Court awards the applicant EUR 3,200.
B. Costs and expenses
- The
applicant also claimed EUR 15,290 for costs and expenses incurred
before this Court and the Constitutional Court. He submitted two
bills justifying the legal costs, the translation costs and postage.
- The
Government did not make any comments.
- In
the present case, regard being had to the information in its
possession, the Court considers it reasonable to award the applicant
the sum of EUR 3,500 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into its national currency, at the rate
applicable at the date of settlement:
(i) EUR
3,200 (three thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,500 (three thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
De Gaetano is annexed to this judgment.
L.G.
F.A.
CONCURRING OPIONION OF JUDGE DE GAETANO
I
have voted with the majority in this case only because of a
particularly grave circumstance, namely the persistent, almost
defiant, refusal of the prison authorities to bring the applicant to
court for the appeal hearing (§§ 9-14). In the instant case
it would appear that the applicant’s presence before the Court
of Appeal was of crucial importance for that court’s, and any
subsequent court’s, decision as to the punishment to be
applied. Although the Court of Appeal did reduce the sentence, the
applicant’s absence before it meant that his evidence as
regards the mitigating factors put forward in his application of
appeal, was never taken and, as a result, was not available before
the Supreme Court. That, to my mind, undermined the fairness of the
proceedings taken as a whole.
