CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 19 septembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s1B9C96E3 { width:14.2pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4598CDF { width:70.9pt; display:inline-block } .sB00DFE03 { width:22.87pt; display:inline-block } .s9A659E2E { width:118.41pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     THIRD SECTION DECISION Application no. 51830/16 Marjan RROKU against Albania   The European Court of Human Rights (Third Section), sitting on 19   September 2023 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.   51830/16) 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 12 August 2016 by an Albanian national, Mr Marjan Rroku, who was born in 1974 and is detained in Burrel (“the applicant”) who was represented by Mr A. Matoshi and Ms R. Mundija, lawyers practising in Tirana and Shkoder; the decision to give notice of the complaint concerning the fairness of the criminal proceedings against him to the Albanian Government (“the Government”), represented by their Agent, Mr O. Moçka, State Advocate General, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the applicant’s trial and conviction in absentia for murder in 2002. 2.     The applicant, at the time working for the Albanian Secret Service, was declared a suspect for murdering two persons on 29 March 2001. The Prosecution opened a criminal investigation against the applicant. 3.     Since the applicant was a fugitive, and after unsuccessful searches for the applicant on two occasions at his and his parents’ house, the criminal proceedings against the applicant were instituted in the Tirana District Court and a hearing was held in his absence. He was initially represented by a court-appointed lawyer and subsequently by one appointed by his family. The Tirana District Court convicted the applicant in absentia for murder and sentenced him to life imprisonment. The subsequent appeals to the Court of Appeal and the Supreme Court, submitted by a lawyer appointed by the applicant’s family, were dismissed. 4.     In 2014, the applicant was extradited from the United States of America (hereinafter the “US”) to Albania and was made aware of his conviction. In 2015, the applicant’s request for a revision of a court decision ( rishikim i vendimit ) under Article 450 of the Code of Penal Procedure (CCP) on account of him being tried in absentia was dismissed by the Supreme Court on procedural grounds. The Supreme Court noted that the revision of a court decision was an extraordinary measure granted under an exhaustive list of circumstances, none of which corresponded to the applicant’s situation. It maintained that the defendant should have made use of another procedural tool, namely leave to appeal out of time ( rivendosje në afat ) under Article 147 of the CCP, in order to reopen proceedings. 5.     On 30 March 2016, the Constitutional Court disagreed with the Supreme Court on the question of the procedural tool used by the applicant, noting that no issues arose with regard to the admissibility of the case. On the merits, however, it dismissed the applicant’s constitutional complaint regarding his trial in absentia , finding that the authorities had done everything in their power to make the applicant aware of the criminal proceedings against him. In coming to this conclusion the Constitutional Court considered the relevant standards of the Court’s case-law on this matter. THE COURT’S ASSESSMENT 6.     The relevant general principles concerning trial in absentia are summarised in Sejdovic v. Italy [GC], no. 56581/00, §§ 81-95, ECHR 2006-II). 7.     It is not contested between the parties that the applicant was not informed of the proceedings against him. 8.     The Government contended that the applicant must have known about the crime he had committed. The authorities had searched the applicant at his place of residence but had not found him because he had absconded and had lived in the US under a false identity for over ten years. In these circumstances, it had been objectively impossible for the authorities to give notice to the applicant of the criminal proceedings against him. 9.     The Government further contended that the applicant had clearly evaded justice, and therefore had waived his Article 6 rights, as he had been sufficiently aware of the crime that he had committed and had absconded. The Government submitted a CD-ROM in support of their submissions which contains a public interview of the applicant from his prison cell for a TV show in Albania, where he claimed that he did not remember having committed the crime, allegedly suffering from amnesia, but admitted to having left the crime scene, obtaining a false identity and illegally immigrating to the USA where he had lived for the next ten years. 10.     The applicant submitted that the trial in absentia had violated his defence rights under Article 6 §§ 1 and 3 (c) of the Convention. He claimed that he had been unaware of the criminal proceedings against him as the authorities had failed to give him notice of such proceedings. Moreover, he claimed to not have unequivocally waived his right to appear in court and defend himself, nor that he had intended to evade justice. The applicant contended that he did not recall the event due to amnesia and claimed that the fact that he had travelled to the US under a false identity did not mean that he had evaded justice – many Albanians had done the same in those years. 11.     The Court notes that it is undisputed between the parties that the applicant was tried and convicted in absentia and that he was not notified of the criminal proceedings against him. It is also undisputed that the applicant absconded in the immediate aftermath of the crime for which he was subsequently convicted in absentia and lived in the US under a false identity for ten years. 12.     In these circumstances, the Court is inclined to agree with the arguments put forward by the Government that the applicant had, or ought to have had, sufficient knowledge of his prosecution and of the charges against him, or, in other words, that he had known or suspected that he was wanted by the authorities and had absconded (compare Medenica v. Switzerland , no.   20491/92, § 58, ECHR 2001-VI, and contrast Shkalla v. Albania , no.   26866/05, §§ 69 et seq., 10 May 2011). Moreover, in contrast to the case of Sejdovic (cited above, §§ 99-101), there are objective factors that indicate that the applicant’s waiver of his rights was not merely due to his status of a “fugitive”, as he could reasonably have foreseen the consequences of his conduct. 13.     In the light of the foregoing, and of all the material in its possession, the Court considers that the applicant, who was tried in absentia , has been shown to have sought to escape trial or to have unequivocally waived his right to appear in court. Therefore, the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 12 October 2023.     Olga Chernishova   Georgios A. Serghides   Deputy Registrar   President