FOURTH SECTION

CASE OF XHERAJ v. ALBANIA

(Application no. 37959/02)

JUDGMENT

STRASBOURG

29 July 2008

FINAL

01/12/2008

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 Xheraj v. Albania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President, 
 Ljiljana Mijović, 
 David Thór Björgvinsson, 
 Ján Šikuta, 
 Päivi Hirvelä, 
 Ledi Bianku, 
 Mihai Poalelungi, judges, 
and Lawrence Early, Section Registrar.

Having deliberated in private on 8 July 2008,

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

PROCEDURE

1.  The case originated in an application (no. 37959/02) 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 Arben Xheraj (“the applicant”), on 20 September 2002.

2.  The applicant was represented by Mr D. Bengasi, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agents, Mr S. Puto and Ms S. Meneri.

3.  The applicant complained under Article 6 §§ 1 and 3 of the Convention that the proceedings to review his acquittal, which had become final, had been unfair as neither he nor his counsel was informed of the hearings and they were therefore unable to present his case. Without giving reasons, the applicant alleged a violation of Article 10 of the Convention. Lastly, he complained under Article 4 of Protocol No. 7 of a breach of the ne bis in idem principle in that the Supreme Court’s judgment of 20 June 2001 constituted a second criminal sanction for the same offence, namely murder.

4.  On 8 September 2005 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

5.  The applicant and the Government each filed written observations (Rule 59 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1970 and is currently serving a sentence in Vicenza Prison in Italy.

A.  The proceedings that led to the applicant’s conviction

7.  In 1995 the prosecutor’s office for the city of Durrës charged the applicant with murder on the basis of evidence from the victim’s father, who maintained that he had been told by the victim, before his death, that the applicant was one of the murderers. The investigation in respect of three other suspects had been discontinued.

8.  The applicant’s father, when interviewed by the police, stated that the applicant had been travelling to Italy with two other persons on the day when the murder was committed.

9.  On 27 November 1996 the applicant, in absentia, was found guilty of murder under Article 76 of the Criminal Code and was sentenced to 20 years’ imprisonment by the Durrës Court of Appeal. His appeal to the then Court of Cassation was declared inadmissible on 10 March 1997.

B.  The proceedings that led to the applicant’s acquittal

10.  Following the signature of an authorisation form by the applicant’s father on 10 December 1997, under Article 450 of the Code of Criminal Procedure (“the CCP”), the applicant’s counsel sought judicial review of the Court of Appeal’s judgment by a request bearing the same date. The application for judicial review reached the District Court on 11 December 1997.

11.  The judicial review request stated that new evidence had emerged in favour of the applicant. Firstly, from the autopsy report it transpired that the victim had been stabbed in the heart and had died instantly; consequently, from a scientific point of view the victim had not been able to communicate. Secondly, two witnesses stated that they had been travelling with the applicant early in the morning to take the ferry to Italy at the time when the murder had occurred.

12.  On 13 December 1997 the applicant authorised the same lawyer, who had already been appointed by his father on 10 December 1997, to represent him in the domestic proceedings.

13.  By means of a letter of 26 August 1998 to the district prosecutor, the Directorate of Investigation and Inspection at the Prosecutor General’s Office forwarded the case file of the applicant and added that

“the request for judicial review meets the legal requirements (kërkesa për rishikimin e vendimit plotëson kriteret ligjore)”.

It requested the district prosecutor to examine objectively the new pieces of evidence to be submitted to the District Court.

14.  The district prosecutor, who happened to be the same person who had attended the first trial, attended the hearing and requested the dismissal of the case pursuant to Article 328 (dh) of the CCP, which states that the case may be dismissed “if it transpires that the defendant has not committed the criminal offence or it cannot be proved that he committed the offence.”

15.  On 27 November 1998 the Durrës District Court declared admissible the applicant’s application for judicial review. The court, deciding on the merits and after examining the new evidence and taking into account the prosecutor’s office request, quashed the Durrës Court of Appeal’s judgment of 27 November 1996 (see paragraphs 9 above) and acquitted the applicant on 14 December 1998 (“the acquittal decision”).

16.  No appeal was lodged against the judgment within the 10 days allowed and it therefore became final on 24 December 1998.

C. The prosecutor’s request for leave to appeal out of time

17.  On 8 October 1999 the prosecutor at the Durrës Court of Appeal (“the appeal prosecutor”) lodged a request for leave to appeal out of time against the acquittal decision with the Durrës District Court. The appeal prosecutor submitted as the ground for his request that shortcomings on the part of the district prosecutor had been observed. Invoking Article 26 § 1 of the CCP about the resignation of a prosecutor in cases of lack of impartiality, whose content makes reference to the resignation of a judge under Article 17 of the CCP, the appeal prosecutor maintained that the district prosecutor who had attended the first trial proceedings should not have participated in the review proceedings. Article 17 § 1 (c) of the CCP provides that a judge must resign “when he has provided advice or expressed opinion about the subject of proceedings.”

18.  The appeal prosecutor contended that the victim’s family, who had been an injured party to the proceedings, had not been informed about the acquittal proceedings in accordance with Article 137 of the CCP. The appeal prosecutor became aware of the acquittal decision on an unspecified date before the end of September 1999, when the victim’s family’s complaint about the acquittal decision was forwarded to other authorities.

19.  On 21 October 1999 the Durrës District Court, in the applicant’s absence and in the presence of an officially appointed defence lawyer, despite the existence of a lawyer of the applicant’s own choosing (see paragraph 12 above), granted the prosecutor leave to appeal out of time.

20.  On an unspecified date the lawyer officially appointed in the proceedings before the Durrës District Court lodged an appeal with the Durrës Court of Appeal challenging the above-mentioned decision because the applicant had not been notified and the decision had not been served on him in accordance with Article 414 of the CCP. Meanwhile, in accordance with the District Court’s decision of 21 October 1999, the appeal prosecutor filed an appeal against the acquittal judgment.

21.  On 15 December 1999 the Durrës Court of Appeal rejected the applicant’s officially appointed lawyer’s appeal on the ground that the decision granting the prosecutor’s request for leave to appeal out of time was not subject to appeal by virtue of Article 147 § 5 of the CCP, as it did not put an end to the criminal proceedings. It also rejected the prosecutor’s appeal as it had not been notified explicitly to the applicant in accordance with Article 414 of the CCP. On an unspecified date the prosecutor appealed to the Supreme Court.

22.  On 19 April 2000 the Criminal Division of the Supreme Court quashed the Durrës Court of Appeal’s decision of 15 December 1999. It found that the requirements concerning the notification of court decisions to the applicant’s officially appointed lawyer had been satisfied since the applicant was considered a fugitive. Accordingly, the court granted the prosecutor’s request for leave to appeal out of time against the acquittal decision and remitted the case to the Durrës Court of Appeal for a fresh examination.

D.  The prosecutor’s late appeal

23.  According to the submissions of the appeal prosecutor to the Durrës Court of Appeal, the acquittal had to be considered null and void in so far as the new evidence adduced by the applicant, even if it gave him an alibi, had been submitted too late. Moreover, the prosecutor who had participated in the judicial review proceedings had also taken part in the first trial. Lastly, it was alleged that the applicant’s counsel lacked standing to initiate proceedings for judicial review as the applicant had signed a form of authority two days after the application for judicial review had been lodged.

24.  On 18 December 2000 the Durrës Court of Appeal confirmed the reasoning set out in the acquittal decision of 14 December 1998 and dismissed the prosecutor’s appeal. The officially appointed lawyer was notified of the decision. On an unspecified date, citing the same grounds of appeal as he had lodged with the Durrës Court of Appeal, the prosecutor appealed to the Supreme Court, claiming that the acquittal decision was null and void.

25.  On 20 June 2001 the Criminal Division of the Supreme Court upheld the prosecutor’s grounds of appeal and, deciding on the merits, quashed the acquittal decision. It held that there had been a breach of the CCP’s provisions relating to the applicant’s counsel’s legal capacity to lodge an application for judicial review on 11 December 1997. It found that he was appointed to act by the applicant on 13 December 1997 i.e. 2 days after he had filed the request with the District Court. The judgment was notified to the officially appointed lawyer.

26.  In 2002 the applicant, who from 1999 onwards had been serving a sentence of 16 years’ imprisonment in Vicenza Prison (Italy), imposed by the Italian courts for international drug trafficking, was notified of the Supreme Court’s judgment that had led to the review of his acquittal, following a request by the Albanian authorities for his extradition.

E.  Constitutional Court proceedings

27.  On 13 February 2002 the lawyer appointed by the applicant, who had already acted for him in the judicial review proceedings (see paragraph 12 above), lodged an appeal with the Constitutional Court, alleging a violation of the applicant’s constitutional right to a fair trial and a breach of Article 6 §§ 1 and 3 (a) and (c) of the Convention.

28.  In his submissions before that court the applicant maintained that the domestic court proceedings had been unfair on the grounds that neither he nor the counsel of his own choosing had been informed of the institution of proceedings and that he had been deemed to be a fugitive despite the fact that he had appointed a lawyer, whose legal capacity formed the basis of the prosecutor’s grounds of appeal against the acquittal.

29.  Moreover, the applicant submitted that in view of the fact that the Albanian authorities had addressed two requests to the Italian authorities for his extradition to Albania, there was reason to believe that the Albanian authorities had had the possibility of giving him notice of the institution of proceedings and of serving the courts’ decisions on him.

30.  As to the merits of the proceedings that led to the quashing of his acquittal, the applicant maintained that his counsel’s legal standing was not open to challenge in so far as on 10 December 1997 his father had authorised the lawyer to represent the applicant before the domestic courts in the proceedings for judicial review, and he himself had confirmed that authority on 13 December 1997.

31.  On 26 April 2002 the Constitutional Court decided de plano to declare the applicant’s appeal inadmissible as being outside its jurisdiction.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Albanian Constitution

32.  The Albanian Constitution, in its relevant parts, provides 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, when 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 free legal counsel when 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 32

1. No one shall be obliged to testify against himself or his family or to confess his guilt.

2. No one shall be declared guilty on the basis of evidence collected unlawfully.

Article 33

1. Everyone has the right to be heard before being judged.

2. A person who is seeking to evade justice may not avail himself of this right.

Article 34

No one shall be punished twice for the same criminal offence or be tried again, except when the reopening of the case is ordered by a higher court, in accordance with the law.

Article 42 § 2

“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”

Article 43

Everyone has the right to appeal against a court decision to a higher court, save as otherwise provided in the Constitution.

Article 142 § 3

“State bodies shall comply with judicial decisions.”

Article 131

“The Constitutional Court shall decide: ...

(f) in a ruling that shall be 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

33.  The relevant parts of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided as follows.

34.  Article 26 § 1 of the CCP required a prosecutor to resign when there were grounds to fear partiality in the cases envisaged under Article 17 of the CCP. Article 17 made reference to the resignation of a judge from adjudicating an existing case. Article 17 § 1 (c) required a judge to resign when he had given advice or expressed an opinion on the subject of the proceedings.

35.  Article 48 of the Code of Criminal Procedure (“the CCP”) provided that the defendant should choose his counsel by means of oral submissions at a court hearing or an authority form to be sent by registered mail. The defendant’s relatives could also choose a lawyer to represent the defendant who had been detained, arrested or convicted and sentenced to imprisonment, by the above-mentioned methods, unless the defendant had already chosen his representative.

36.  Article 58 of the Code of Criminal Procedure gave the injured party resulting from the criminal offence or his heirs the right to request the prosecution of the offender and compensation for damage. Article 409 permitted the injured party to file an appeal him/herself or through his/her representative, in respect of criminal and civil aspects.

37.  Under Article 147 § 1 of the CCP, a party to proceedings who had failed, owing to unforeseen events or force majeure, to lodge an appeal against a judgment within the prescribed time, could seek leave to appeal out of time. Under Article 147 § 2 a defendant convicted in absentia may be granted leave to appeal out of time against a court decision, if he has established that he had no effective knowledge of it. Under Article 147 §3, the request for leave to appeal out of time had to be lodged within ten days of the date on which the party was notified of the judgment. Under Article 147 § 5 the decision to allow a request for leave to appeal out of time could be appealed against in conjunction with the decision on the merits of the case.

38.  Under Article 414 an appeal could be filed with the Court of Appeal within 10 days starting from the day of the pronouncement or notification of the decision.

39.  Articles 449 and 451 of the CCP provided that an application for review of the case on account of a newly discovered circumstance should be lodged by a party to the proceedings with the same court that had delivered the original judgment. Such an application should be lodged within five years from the delivery of an acquittal judgment.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (a) and (c) OF THE CONVENTION

40.  The applicant complained that the Supreme Court’s judgment of 20 June 2001, delivered after his final acquittal, had constituted a violation of his right to a fair trial in that the acquittal decision, which had become final, was quashed. He also complained of the fact that neither he nor the counsel of his own choosing was promptly informed of the prosecutor’s request for leave to appeal out of time against the acquittal decision. He relied on Article 6 § 1 and 6 § 3 (a) and (c) of the Convention, the relevant parts of which provide:

“.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:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.

...

(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

41.  The Government contended that the application was inadmissible, having been lodged out of time. As the Constitutional Court had declared the applicant’s appeal inadmissible on 26 April 2002, the final decision for the purposes of Article 35 of the Convention was in fact the Supreme Court’s decision of 20 June 2001, whereas the applicant had filed his application on 20 September 2002.

42.  The applicant submitted in reply, that an appeal to the Constitutional Court was a domestic remedy to be exhausted within the domestic legal order. Therefore, the Constitutional Court’s inadmissibility decision should be considered the final domestic decision.

43.  The Court reiterates its findings in the Balliu v. Albania admissibility decision (no. 74727/01), subsequently upheld in Beshiri and Others v. Albania, (no. 7352/03, § 32, 22 August 2006), where it held that a complaint to the Albanian Constitutional Court could be considered an effective remedy which had to be used for the purposes of Article 35 of the Convention where fair-trial issues arose. It considers that there are no reasons for it to depart from that finding in the circumstances of the present case.

44.  The applicant did in fact avail himself of this remedy. The Constitutional Court’s decision is dated 26 April 2002 and the applicant lodged his application with the Court on 20 September 2002. He has therefore complied with the six-month time-limit prescribed in Article 35 of the Convention.

45.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Legal certainty: quashing of a final judgment

a. The parties’ submissions

46.  The applicant contended that his father initially appointed a lawyer to act on his behalf by a form of authority signed on 10 December 1997. That became part of the case file and should not have been ignored by the domestic courts in respect of notification procedures vis-à-vis the applicant. He added that the prosecutor did not have any legal grounds (unforeseen events or force majeure) under Article 147 § 1 of the CCP to request leave to appeal out of time against the acquittal decision which had become final, as the authorities had already been made aware of the judicial review request by the letter of 26 August 1998 (see paragraph 13 above).

47.  As to the incompatibility of the district prosecutor, who had previously taken part in the proceedings that had led to the applicant’s conviction in 1996, the applicant maintained that the incompatibilities of judges did not apply to prosecutors if they attended proceedings at the same jurisdictional level.

48.  The Government contended that the prosecutor’s request for leave to appeal out of time resulted from procedural violations attributable to the District Court, which had not notified the victim’s family of the applicant’s acquittal so that they could have filed an appeal against the acquittal decision. The victim’s family accidentally became aware of that decision a few months later.

49.  In the Government’s opinion, another reason which contributed to the prosecutor’s late appeal was that the prosecutor who attended the acquittal hearings at the District Court did not inform his supervisors of the said proceedings.

50.  The Government considered that since the domestic legislation provided for the judicial review of a final decision and the procedure to request leave to appeal out of time against a final court decision, these steps could not be considered to violate the principle of legal certainty under Article 6 § 1 of the Convention.

b.  The Court’s assessment

i.  General principles

51.  The Court reiterates that in the light of the Preamble to the Convention, the rule of law is part of the common heritage of the Contracting States, one of the fundamental aspects of which is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

52.  Moreover, the Court observes that the requirements of legal certainty are not absolute. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX) or if serious legitimate considerations outweigh the principle of legal certainty (see Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006).

53.  The mere possibility of reopening a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6. It must be assessed in the light of, for example, Article 4 § 2 of Protocol No. 7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings, which could affect the outcome of the case (see Nikitin v. Russia, no. 50178/99, § 54-57, ECHR 2004-VIII, and Savinskiy v. Ukraine, no. 6965/02, § 23, 28 February 2006). Certain special circumstances of the case may reveal that the actual manner in which such a review was used impaired the very essence of a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct a [...] review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see Bujniţa v. Moldova, no. 36492/02, § 21, 16 January 2007).

54.  The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant’s individual situation and whether the reopening resulted from the applicant’s own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant’s case; the compliance of the procedure at issue with the requirements of the domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case (Radchikov v. Russia, no. 65582/01, § 44, 24 May 2007).

ii.  Application of the above principles to the instant case

55.  The Court observes, and it seems undisputed between the parties, that in the present case a final judgment acquitting the applicant on all charges was re-examined and quashed by granting the prosecutor’s request for leave to appeal out of time against the acquittal decision (see, by contrast, Fadin v. Russia, no. 58079/00, § 34, 27 July 2006). The issue arises as to whether on the basis of the facts of the case, and regard being had to the review proceedings, the authorities struck, to the maximum extent possible, a fair balance between the interests of the applicant and the need to ensure the effectiveness of the system of criminal justice and thus complied with Article 6.

56.  The bulk of the prosecutor’s request for leave to appeal out of time of 8 October 1999 concerned the breach of procedural safeguards in that the injured party, i.e. the victim’s family, had not been notified of the acquittal decision. The Court notes that under Article 58 § 1 of the CCP the injured party may request the prosecution of the offender and compensation for damage. Under Article 409 of the CCP, the injured party may file an appeal, himself or through his legal representative, in respect of criminal and civil aspects.

57.  The Court regrets that the domestic court did not comply with the notification requirements under Article 137 § 1 of the CCP. However, it notes, on the basis of the documents submitted in the case file, that there is no indication that the victim’s family were granted “injured party” status. Even assuming that the victim’s family had been granted “injured party” status and had had vested interests with regard to any alleged criminal and civil aspects, they did not lodge any appeal with the District Court themselves or through their legal representative. Nor did they make a request for leave to appeal out of time or directly take any necessary action through the assistance of the prosecutor’s office. The victim’s family chose another course. They filed a request with other domestic authorities, i.e. the office of the President of the Republic, which were not empowered to take any action whatsoever, other than to pass on their complaints to the prosecutor’s office.

58.  The Court does not accept the Government’s argument that the prosecutor who attended the acquittal procedures, even though he had previously participated in the proceedings that had led to the applicant’s conviction, had failed to notify his supervisors, so that an appeal could not be lodged within the time prescribed by law. It considers that the mistakes or errors of the State authorities should serve to the benefit of the defendant. In other words, the risk of any mistake made by the prosecuting authority, or indeed a court, must be borne by the State and errors must not be remedied at the expense of the individual concerned (see above Radchikov v. Russia, § 50). Furthermore, the higher instances at the General Prosecutor’s Office were aware of the judicial review proceedings as indicated by the letter of 26 August 1998 (see paragraph 13 above).

59.  A situation where the final judgment in the applicant’s favour was called into question and reviewed could have been avoided had the prosecutor’s office lodged an ordinary appeal within the statutory ten-day time-limit. In the instant case the prosecutor’s office failed to exercise its right to lodge an ordinary appeal and permitted the statutory ten-day time-limit to expire without challenging the acquittal decision. Instead, they requested leave to appeal out of time more than nine months later, after the judgment in the applicant’s favour had become binding and enforceable and after his acquittal. The prosecutor’s request did not contain any information as to the date when the ten-day time-limit provided for under Article 147 § 3 of the CCP had begun to run, and nor did the Government point to any exceptional circumstances that would have prevented the prosecutor’s office from making use of an ordinary appeal in good time.

60.  The Court considers that the arguments used by the prosecutor to justify the request for leave to appeal out of time were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy. The Court considers that allowing the prosecutor’s request did not strike a fair balance between the interest of the applicant and the need to ensure the effectiveness of the criminal justice system.

61.  Having regard to these considerations, the Court finds that by granting the prosecutor’s request, the Supreme Court infringed the principle of legal certainty under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article.

2.  “Promptly informed” and defence by “legal assistance of his own choosing”

a.  The parties’ submissions

62.  The applicant complained that even though the lawyer of his own choosing had been confirmed by the form of authority of 13 December 1997, the authorities informed neither his lawyer nor his family of the new proceedings, in which the prosecutor had been granted leave to appeal out of time, resulting in the quashing of the final acquittal decision, thus rendering the right to defend himself through a lawyer of his own choosing nugatory.

63.  The Government maintained that since the applicant had been declared a fugitive and an officially appointed lawyer had been assigned by the court, it was this lawyer who had been served with the domestic courts’ decisions granting the request for leave to appeal out of time.

b.  The Court’s assessment

64.  The Court reiterates at the outset that the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1 (see, among other authorities, Balliu v. Albania, no. 74727/01, § 25, 16 June 2005). On the whole, the Court is called upon to examine whether the proceedings that led to the applicant’s retrial, in their entirety, were fair (see, among other authorities, Vanyan v. Russia, no. 53203/99, § 63-68, 15 December 2005, Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, § 38 and S.N. v. Sweden, no. 34209/96, § 43, ECHR 2002-V).

65.  Having regard to the finding of a violation in respect of the quashing of a final decision under Article 6 § 1 (see paragraph 61 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (a) and (c).

II.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

66.  The applicant further complained of a violation under Article 10 without providing any reasons. Article 10 of the Convention provides:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

67.  The Court notes that the applicant’s complaint has remained unsubstantiated. The contents of the case file do not disclose a violation of the applicant’s rights under this provision.

68.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION

69.  The applicant further complained that the Supreme Court’s judgment of 20 June 2001 violated the ne bis in idem principle under Article 4 of Protocol No. 7 to the Convention and should be considered a second criminal sanction for the same offence. Article 4 of Protocol No. 7 to the Convention reads as follows:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.  No derogation from this Article shall be made under Article 15 of the Convention.”

70.  The Court notes that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. According to the explanatory report to Protocol No. 7, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a “decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them’ ” (see Nikitin, cited above, § 37).

71.  The Court observes that the acquittal decision of 14 December 1998 became final on 24 December 1998 as no appeal was lodged against it within the ten-day time-limit prescribed under the law (see paragraphs 16 and 38 above). It thus remains to be determined whether the proceedings that occurred following the granting of the request for leave to appeal out of time are considered to be a second trial or a reopening of the acquittal proceedings.

72.  In the Court’s opinion, Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the reopening of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings (see Nikitin, cited above, § 45).

73.  The Albanian legislation permitted at the material time and still permits either of the parties to criminal proceedings to request leave to appeal out of time provided that the conditions under Article 147 § 1 of the CCP are met. The subject matter of the proceedings after leave to appeal out of time had been granted remained the same criminal charge that had led to the applicant’s conviction. The ultimate effect of the leave to appeal out of time was to reopen the proceedings, to quash the acquittal decision and determine the criminal charge in a new decision. It thus constitutes a form of continuation of the previous proceedings (see Nikitin, cited above, § 45).

74.  The Court therefore concludes that for the purposes of the ne bis in idem principle, the purpose of the leave to appeal out of time was an attempt to have the previous proceedings reopened rather than an attempted “second trial”. It follows that there has been no violation of Article 4 § 1 of Protocol No. 7 to the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75.  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

76.  Relying on Article 57 of the CCP, the applicant claimed 31 euros (EUR) for each day served in prison following the Supreme Court’s decision of 20 June 2001 in respect of pecuniary damage.

77.  The Government contested his claim.

78.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged. The applicant was serving a sentence of 16 years’ imprisonment in Italy, imposed by the Italian courts for international drug trafficking (see above paragraph 26) at the time his acquittal decision was quashed by the Supreme Court on 20 June 2001. His imprisonment in Italy had not resulted from the Albanian Supreme Court’s decision of 2001.

79.  The applicant claimed from 30,000 to 100,000 US dollars (USD) in respect of non-pecuniary damage. He claimed that the quashing of the acquittal decision and his conviction had resulted in severe stress and frustration. He leaves it to the Court to award the exact amount.

80.  The Government contested his claim.

81.  The Court recalls that the breach of the Convention found in the instant case was caused by the quashing of the applicant’s acquittal. Notwithstanding the final nature of the judgment acquitting him, he was convicted in breach of the principle of legal certainty. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the quashing of the District Court’s decision of 14 December 1998 (see Bujniţa v. Moldova, cited above, § 28). The particular amount claimed is, however, excessive. Making its assessment on an equitable basis, it awards the applicant EUR 2,000 for non-pecuniary damage.

82.  However, the Court also notes that the applicant continues to be subject to the consequences of the quashing of the decision of 14 December 1998. It considers that the most appropriate form of redress for this continuing situation would be for the applicant’s final acquittal of 14 December 1998 to be confirmed by the authorities and his conviction in breach of the Convention to be erased with effect from that date (see Bujniţa, cited above, § 29).

B.  Costs and expenses

83.  The applicant also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts and those incurred before the Court.

84.  The Government contested the applicant’s claim.

85.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).

86.  In the present case, regard being had to the lack of supporting documents, the Court rejects the claim for costs and expenses in the domestic proceedings and for the proceedings before the Court.

C.  Default interest

87.  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

1.  Declares the application admissible as regards the complaints under Article 6 § 1 alone and in conjunction with Article 6 § 3 (a) and (c) of the Convention and under Article 4 of Protocol No. 7 to the Convention, and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there is no need to examine the complaint under Article 6 § 3 (a) and (c) of the Convention;

4.  Holds that there has been no violation of Article 4 of Protocol No. 7 to the Convention;

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of payment;

(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;

6.  Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 29 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Lech Garlicki 
 Registrar President


XHERAJ v. ALBANIA JUDGMENT


XHERAJ v. ALBANIA JUDGMENT