CASE OF KOLA v. ALBANIA

THIRD SECTION

CASE OF KOLA v. ALBANIA

(Application no. 70656/17)

JUDGMENT

STRASBOURG

13 June 2023

This judgment is final but it may be subject to editorial revision.

In the case of Kola v. Albania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President, Darian Pavli, Oddný Mjöll Arnardóttir, judges,and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 70656/17) 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”) on 21 September 2017 by an Albanian national, Mr Ndrec Kola, born in 1962 and living in Tirana (“the applicant”) who was represented by Mr T. Prendi, a lawyer practising in Tirana;

the decision to give notice of the complaints concerning the applicant’s right to be tried in his presence and his right of access to the Constitutional Court to the Albanian Government (“the Government”), represented by their former Agent, Ms A. Hicka, and subsequently by Mr O. Moçka, of the State Advocate’s Office, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 23 May 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The applicant was tried in absentia on charges of murder and illegal possession of firearms before the Tirana District Court. On 11 December 2012 he was found guilty as charged and sentenced to nineteen years’ imprisonment.

2. After the applicant was arrested in Greece and extradited to Albania, he lodged an appeal against his conviction, arguing that, even though he had no knowledge of the criminal proceedings against him, he had been tried in absentia. His conviction was based on statements given by four witnesses given during the investigation, who had been questioned only by the prosecution, and had not given their evidence at the trial.

3. On 12 March 2015 the Tirana Appeal Court held a hearing, where the applicant was present. At that hearing no evidence was presented and the Appeal Court dismissed the applicant’s request that witnesses be heard, and upheld the decision of 11 December 2012, holding that the applicant’s guilt had been proven by an on-site inspection, forensic expertise, ballistic expertise, record on seizure of material evidence and statements of four other witnesses given at the trial, as well as statements of witnesses given during the investigation. The whereabouts of these witnesses had been unknown during the trial.

4. In his ensuing appeal to the Supreme Court the applicant requested that the decisions of the Tirana District Court and the Tirana Appeal Court be quashed and that a retrial be ordered. The applicant alleged that his right to be heard and to participate in the trial, under Article 6 of the Convention, was violated since he had not participated in the trial and had no knowledge of it.

5. The Supreme Court dismissed the applicant’s appeal on 28 January 2016. The decision of the Supreme Court was served on the applicant, at his request, on 22 April 2016.

6. On 8 November 2016 Law no. 99/2016 was published in the Official Journal. It shortened the time-limit for lodging a constitutional complaint from two years to four months “of obtaining knowledge of the interference [with a constitutional right or freedom]” (konstatimi i cënimit). It also provided that the new time-limit should enter into force on 1 March 2017.

7. On 8 March 2017 the applicant again asked that the decision of the Supreme Court be served on him. By a letter of 16 March 2017 the Supreme Court informed the applicant again that it had dismissed his appeal on 28 January 2016.

8. The applicant lodged a constitutional complaint on 10 May 2017, requesting that the decisions of the lower courts be quashed and that his request for a retrial before the first-instance court be allowed. He alleged, in so far as relevant for his allegations before the Court, violation of the following:

- the right to defend himself because the trial before the first-instance court was held in his absence and without the presence of his chosen lawyer;

- the right to be heard because, even though he was present in the proceedings before the appeal court, he was not given the opportunity to question witnesses or to contest the evidence against him;

- the right to a reasoned decision, claiming that the first-instance court and the appeal court did not give adequate reasons for their decisions and did not take into account the evidence in his favour.

He claimed that thus his right to a fair trial under Article 42 of the Constitution and Article 6 of the Convention had been violated.

9. On 4 July 2017 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as being lodged out of the four-month time-limit.

THE COURT’S ASSESSMENT

10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11. The general principles concerning access to the Albanian Constitutional Court as regards the newly introduced four-month time-limit for lodging a constitutional complaint have been summarized in Çela v. Albania, no. 73274/17, §§ 20, 27-29 and 32, 29 November 2022.

12. In the present case, the final decision by the Supreme Court was adopted on 28 January 2016, was served on the applicant on 22 April 2016 and the applicant’s constitutional complaint against that decision was lodged on 10 May 2017. It was declared inadmissible as being lodged out of the newly introduced four-month time-limit.

13. The Court has already found in a similar situation that the Constitutional Court’s application of the newly introduced four-month time‑limit for lodging a constitutional complaint in respect of decisions adopted before 1 March 2017 was in breach of the right of access to court under Article 6 § 1 of the Convention. It held that at the time when the applicant had lodged his constitutional complaint the more stringent interpretation adopted by the Constitutional Court could not be seen as constituting established practice of which the applicant should have been aware (see Çela, cited above, §§ 37 and 40). The Court sees no reason to hold otherwise in the present case, since the applicant lodged his constitutional complaint on 10 May 2017 when the position of the Constitutional Court that the newly introduced four-month time-limit would apply in respect of the decisions of the Supreme Court adopted before 1 March 2017 had not yet become clearly established. In that connection, the Court notes that irrespective of whether the two-year time-limit was to be counted from the date when the Supreme Court’s decision had been adopted or from the date when it had been served on the applicant, the applicant complied with it.

14. There has accordingly been a violation of Article 6 § 1 of the Convention as regards the applicant’s right of access to the Constitutional Court.

15. The Court has found a violation of Article 6 of the Convention in so far as the manner in which the Constitutional Court had interpreted the time‑limit for lodging a constitutional complaint deprived the applicant of access to that court. Therefore, the Constitutional Court did not examine the merits of the applicant’s constitutional complaint in which he alleged a violation of his right to a fair trial under Article 42 of the Constitution and Article 6 of the Convention on the ground that he had not had an effective opportunity to present and challenge evidence, to question witnesses and to be represented by a lawyer of his own choosing (see paragraph 7 above).

16. Having regard to its finding concerning the applicant’s right of access to the Constitutional Court under Article 6 § 1 of the Convention (see paragraph 14 above), the Court notes that the applicant now has an opportunity to seek the reopening of proceedings before that court (see paragraph 19 below). The latter would allow for an examination of the applicant’s remaining complaints under the Convention. The Court cannot speculate on what the outcome of such proceedings would be. In these circumstances, the Court considers that the applicant’s remaining complaints are premature and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Baljak and Others v. Croatia, no. 41295/19, §§ 45-46).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 6,200 in respect of costs and expenses before the Constitutional Court and the Court.

18. The Government deemed the sums claimed unfounded and excessive.

19. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. Given the nature of the applicant’s complaint and of the violation found, the Court considers that the most appropriate form of redress in the present case would be the reopening of the proceedings before the Constitutional Court, should the applicant so request, given that it is capable of providing restitutio in integrum as required under Article 41 of the Convention (compare Shkalla v. Albania, no. 26866/05, §§ 77-79, 10 May 2011, and X v. the Netherlands, no. 72631/17, § 61, 27 July 2021). In this connection, the Court notes that Article 71/c of the Law on the Functioning and Organisation of the Constitutional Court provides that the proceedings before the Constitutional Court may be reopened if an international court with binding jurisdiction over the Republic of Albania finds that an individual’s fundamental rights or freedoms have been violated “due to a [prior] decision of the Constitutional Court”. That being so, the finding of a violation constitutes sufficient just satisfaction in the present case.

20. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 for costs and expenses, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement plus any tax that may be chargeable to the applicant;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Georgios A. Serghides Deputy Registrar President