CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 juin 2012

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De Gaetano, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 16 January 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Petrit Sulejmani, is an Albanian national, who was born in and is currently serving a prison sentence in Lushnjë, Albania. He was represented before the Court by Mr I. Thiée, a lawyer practising in Bonn, Germany. 2.     The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro, and, subsequently, by Ms L. Mandia of the State Advocate’s Office. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant’s conviction in absentia 4.     On 31 October 2005 the Fier District Court (“the District Court”) convicted the applicant in absentia of aggravated offences relating to procurement of prostitution (Article 114/a § 4 of the Criminal Code). He was sentenced to ten years’ imprisonment and fined. He was represented by a lawyer (Z.), who had been appointed by his family. 5.     On 4 April 2006 and 19 September 2007, following Z.’s appeals, the applicant’s conviction was upheld by the Vlora Court of Appeal (“the Court of Appeal”) and, later, by the Supreme Court. 6.     On 23 October 2007 the applicant was arrested in Cologne by the German police on the strength of an Albanian arrest warrant. On 21 November 2007 the Albanian authorities requested his extradition. 7.     In the course of the extradition proceedings, the Cologne Court of Appeal requested the Albanian authorities to give an assurance that the applicant would be re-tried if extradition were to take place. 8.     On 25 January 2008 the Albanian Minister of Justice (“the Minister”) informed the German authorities that the applicant could lodge a request to appeal out of time. The relevant parts of the Minister’s letter read: “With reference to the request made concerning a right to retrial on behalf of Petrit Sulejmani given his trial in absentia , we hereby inform you that the person in question may effectively exercise his right to request an appeal out of time in accordance with Article 147 § 3 of the Code of Criminal Procedure within ten days of his hand-over in Albania.” 9.     On the basis of that assurance the applicant was handed over to the Albanian authorities on 17 March 2008. 2.     The applicant’s request for leave to appeal out of time 10.     On 24 March 2008 the applicant lodged a request for leave to appeal out of time against his conviction. On 22 April 2008 the District Court dismissed the request on the ground that his conviction in absentia had become final and had acquired the force of res judicata . It found that the applicant had effectively exercised his right of appeal, since his representative, who had been appointed by the applicant’s family, had appealed against the judgment of 31 October 2005. 11.     On 11 November 2008, 19 January and 8 October 2009 the applicant’s appeals were dismissed by the Court of Appeal, by the Supreme Court and by the Constitutional Court, respectively. B.     Relevant domestic law and practice 1.     Code of Criminal Procedure (CCP) 12.     The relevant provisions of the CCP concerning an application for leave to appeal out of time are as follows: Article 48 – Counsel appointed by the defendant “1. The defendant has the right to appoint no more than two counsel. 2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel. 3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”. Article 147 – Leave to appeal out of time “1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure. 2. In the event of conviction in absentia , the accused may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge. 3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...) ... 5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case. 6. An appeal may be lodged with the Court of Appeal against the decision refusing an application for leave to appeal out of time”. Article 410 – The defendant’s appeal “... 2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law. ...” 2.     Domestic courts’ practice concerning proceedings in absentia 13.     In its unifying decision no. 2 of 14 October 2002 the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the defendant or a lawyer appointed by him, within ten days of the date on which the defendant was effectively informed of the decision given in absentia . This right could not be exercised by the defendant’s family members if the defendant was not realistically aware of the decision in absentia . The application for leave to appeal out of time should be examined by the District Court, sitting in a three-judge formation. The District Court’s decision could be appealed to the Court of Appeal and, thereafter, to the Supreme Court. 14.     In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010, the Constitutional Court decided that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family. COMPLAINT   15.     The applicant complained about his trial in absentia under Article   6   §§ 1 and 3 of the Convention. THE LAW 16.     The applicant complained that there had been a breach of Article   6   §§ 1 and 3 of the Convention as a result of his trial in absentia . Article 6 §§ 1 and 3 of the Convention 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: (a)     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)     to have adequate time and facilities for the preparation of his defence; (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; (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e)     to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 17.     The Government stated that the applicant was aware of the criminal proceedings against him and that he had deliberately absconded from justice. They submitted a notarised power of attorney of 2 October 2004, signed by the applicant, in which he had stated that he was aware of the criminal proceedings pending against him. The relevant parts of the power of attorney read as follows: “I have been accused of the criminal offence of exploitation of prostitution by the Korça prosecutor’s office on the strength of a police report ( kallzim ) lodged by (...). By way of this power of attorney, I appoint B. and J. as my defence lawyers. They have the right to represent and defend me before the police, the prosecutor’s office, the first-instance court, the Court of Appeal, the Supreme Court and before other instances of the proceedings (...). They have the right to actively take part in all proceedings, investigative measures and hearings conducted against me. (...)” The Government further relied on a letter that lawyers B. and J. had sent to the Korça prosecutor’s office on the applicant’s behalf. 18.     The applicant did not respond to this submission of the Government or otherwise expand on his complaint. 19.     A statement of the general principles concerning trials in absentia may be found in the Court’s judgment in the case of Sejdovic v. Italy [GC], no. 56581/00, §§ 81-95, ECHR 2006-II. 20.     The Court notes that it is not disputed between the parties that the applicant did not receive any official notification about the conduct of the domestic courts’ proceedings. In fact, the notifications were signed by members of the applicant’s family, who had also appointed a lawyer to represent him in absentia before the domestic courts. The Court must therefore ascertain whether the applicant was sufficiently aware of his prosecution and trial in order to determine whether he had waived his right to appear in court. 21.     What is decisive in this regard is whether the facts of the case show unequivocally that the applicant was sufficiently aware of the opportunity to exercise these rights in the context of the specific proceedings instituted against him and whether he can be considered to have waived his right to appear in court. In the absence of any such knowledge this right can neither be seen to have been clearly waived nor exercised effectively (see, amongst others, Stoyanov v. Bulgaria , no. 39206/07, § 32, 31 January 2012). 22.     In the present case, the Government submitted a certified copy of a power of attorney by which the applicant acknowledged the start of the proceedings against him and appointed lawyers B. and J. to represent him. The applicant did not contest the authenticity of this document, or, indeed, respond at all to the Government’s submission in his observations. The fact that lawyers B. and J. were later replaced by lawyers appointed by members of his family does not alter the clear finding that he knew on 2 October 2004 about the criminal proceedings against him. By choosing to leave the country, the applicant must be considered to have intentionally and unequivocally waived his rights under Article 6 of the Convention and could reasonably have foreseen the consequences of his conduct (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). 23.     The Court therefore concludes that this complaint should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Lech Garlicki   Registrar   President