CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 janvier 2008

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s719C48CE { width:279.15pt; display:inline-block } .sBB9EE52A { font-family:Arial } .sF6D41D5D { width:368.55pt; display:inline-block } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s29100277 { font-family:Arial; font-weight:bold } .s132B84CB { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s13887275 { margin-top:12pt; margin-bottom:6pt; text-align:center; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFC1B4D41 { margin-top:36pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid }   17 January 2008       FOURTH SECTION Application no. 41670/04 by Ali SUFJA against Albania lodged on 16 November 2004 and Application no. 2469/05 by Shkelqim SUFJA against Albania lodged on 16 November 2004   STATEMENT OF FACTS THE FACTS The applicants, Mr Ali Sufja and Mr Shkelqim Sufja, brothers, are Albanian nationals who were born in 1970 and 1969 respectively. Mr Ali Sufja, (“the first applicant”) lives in Lezha, Albania, and Mr Shkelqim Sufja, (“the second applicant”) is currently serving a prison sentence in Albania. They are represented before the Court by Ms F. Mavilla, a lawyer practising in Bologna, Italy. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The background to the applicants' arrest On 21 January 2003 the Bologna investigating judge ordered the applicants' arrest on charges of international drug trafficking and imposed on them the precautionary measure ( misure cautelari ) of detention in prison pending trial. On 25 February 2003 the applicants were arrested in Albania in compliance with an Italian arrest warrant. On 28 February 2003 the Lezha District Court validated the applicants' arrest and decided on precautionary measures of detention pending trial in compliance with the Italian arrest warrant. On 21 March 2003 and 28   May 2003, the Shkodra Court of Appeal and the Supreme Court respectively upheld the District Court's decision on the lawfulness of their arrest and pre-trial detention. On 26 March 2003 the Italian authorities requested the applicants' extradition to Italy. Because it was not possible to extradite them, since they were Albanian nationals, the Albanian authorities initiated criminal proceedings against them on the same charges. 2.     The first applicant's detention from 26 June 2003 to 4 March 2004 On 16 June 2003, following an appeal by the first applicant, the Bologna District Court, sitting as the authority with jurisdiction to decide on measures affecting the liberty of persons (“ tribunale della libertà e del riesame ”), upheld his release from prison pending trial. On 18 July 2003 the Italian Ministry of Justice withdrew its request for his extradition to Italy. On 28 July 2003 and 3 October 2003 the Italian Embassy in Albania informed the Albanian Ministry of Justice by a note verbale of the withdrawal of their request for “his extradition or alternatively the initiation of criminal proceedings against him”. The Albanian authorities failed to release the applicant, who had been detained in compliance with the Italian judge's order. On 16 February 2004 the Bologna District Court dropped the charges against the first applicant on the ground that he had not committed the alleged offence (“ per non aver commesso il fatto ”). On an unspecified date the first applicant lodged a request with the Lezha District Court asking to be released in the light of the new circumstances. On an unspecified date the judge requested the Prosecutor's Office to confirm the authenticity of the Italian court's decisions. On 1 March 2004 the Albanian Prosecutor's Office confirmed to the Lezha District Court that the Italian authorities had in fact made those decisions. On 4   March 2004, having regard to the Bologna District Court's decision of 16   June 2003 and the failure of the Lezha prosecutor's office to submit any evidence that could have justified the applicant's detention, the Lezha District Court released him pending trial. The domestic court made the applicant's release conditional on his reporting to a police station. The first applicant did not lodge an appeal with the Albanian courts challenging the lawfulness of his detention from 26 June 2003 to 1 March 2004. On 3 October 2005 the Tirana Assize District Court acquitted the applicant of the charges against him. 3.     The second applicant's detention from 18 August 2004 to 3 October 2005 On 18 August 2004, having regard to the prosecutor's failure to order within the relevant time the initiation of criminal proceedings against the second applicant, the Bologna investigating judge ordered his release pending trial, on the basis of Article 303 of the Italian CCP, which lays down the maximum permitted periods of detention pending trial. On 28 September 2004 the applicant's representative requested the Italian authorities to inform the Albanian authorities of the decision of 18 August 2004, since he was still in detention in Albania in compliance with the Italian judge's warrant. On 6 October 2004, the Italian Ministry of Justice informed the applicant's representative that it had transmitted the decision of 18 August 2004 to the Albanian authorities, without specifying when. On 3 October 2005 the Tirana Assize District Court, reclassifying the charges against the applicants, found the second applicant guilty of the organisation and direction of criminal organisations involved in international drug trafficking and sentenced him to twelve years' imprisonment. The court failed to make any reference to the Bologna court's decision of 18 August 2004 in respect of the second applicant. The second applicant failed to inform the Registry whether he had lodged appeals with the competent domestic courts against the decision which had led to his conviction and on the validity of his detention from 18 August 2004 to 3 October 2005. B.     Relevant domestic law The Code of Criminal Procedure, as follows, in the relevant parts reads: Article 246 Enforcement of detention orders (...) 6. Every two months following the execution of a detention order, the prosecutor shall give information to the court which issued that order. The information shall be submitted in writing and shall contain information on the status of the proceedings, the questioning of the defendant and other persons, and a summary of information received, and shall have attached copies of documents in the file. When the case warrants, the judge may revoke or replace the order. Article 260 Revocation and replacement of detention orders 1. Detention orders are revoked immediately when it is proved that the grounds to apply them are lacking. (...) 4. The application of the prosecutor or defendant for the revocation or replacement of a detention order is heard by the court within five days of its being lodged. When the case warrants, the court may also decide ex officio during pre-trial admission of evidence or during trial. Article 491 Dismissal of requests for extradition 1. Extradition may not be provided: (...) (g) when the person whose extradition is requested is an Albanian citizen and there is no agreement otherwise providing; (...)   Article 494 Temporary deprivation of liberty 1. On a request by another country's authorities, presented by the Minister of Justice through the prosecutor in the competent court, the court may temporarily impose deprivation of liberty before the request for extradition arrives. 2. The measure may be imposed when: (a) the foreign authority has declared that the person has been subjected to a measure restricting his personal freedom or to a prison sentence and that it is going to present a request for extradition; ... 6. Deprivation of liberty shall be revoked in the event that the request for extradition and the documents enclosed do not reach the Ministry of Justice within thirty days of notification . COMPLAINTS Relying on Article 5 §§ 1, 3 and 4 of the Convention, the applicants complained of the unlawfulness of their detention by the Albanian authorities together with the impossibility for them to effectively challenge the reasonableness of the length of the pre-trial detention.       QUESTIONS TO THE PARTIES   1.     Were the applicants deprived of their liberty in the periods from 28 July 2003 to 4 March 2004 (the first applicant) and from 18 August 2004 to 3   October 2005 (the second applicant) in breach of Article 5 § 1 of the Convention? 2. Did the prosecutor's failure to report periodically to the court in accordance with a procedure prescribed by law (Article 246 of the Code of Criminal Procedure) amount to a breach of Article   5   §   1 as regards the applicants' detention? 3. Did the authorities' failure to release the applicants as required by law (Article 494 of the Code of Criminal Procedure) following the Italian judge's decisions ordering the applicants' release amount to a breach of Article 5 § 1? 4. Did the applicants exhaust domestic remedies in respect of their complaints under Article 5 § 1 of the Convention?