THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74727/01 by Taulant BALLIU against Albania

The European Court of Human Rights (Third Section), sitting on 27 May and 30 September 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , Mrs A. Gyulumyan, judges , an d Mr Mark Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 3 August 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties ' oral submissions at the hearing on 27 May 2004 ,

Having deliberated, decides as follows :

THE FACTS

The applicant, Mr Taulant Balliu, is an Albanian national born in 1971 . He is currently serving a prison sentence in Bence -Tepelenë Prison ( Albania ) . He was represented before the Court by Mr P. Pavarini, a lawyer practising in Torino ( Italy ). At an oral hearing on 27 May 2004 the applicant was further represented b y Mr Q. Gjonaj, Mr B. Rusi and Mr L. Gi a bard o , Advisers. The respondent Government were represented by Mr S. Puto, Agent , assisted by Mr L. Bjanku , Counsel , and Mrs H. Me ç aj , Legal Assistant.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

In criminal proceedings against armed gangs operating during the political turmoil in Albania from March to September 1997, the Elbasan public prosecutor ' s office accuse d the applicant of being one of the instigator s of an ar med gang known as the “Kateshi Gang”. The gang , organised as a m ilitary commando, aimed to ave ng e the murder of their member s in conflict s with other gangs and was financed by extorting money from various businessmen in the area.

In the ensuing criminal proceedings, the applicant was represented before all the courts by Mr D. Leli, a lawyer practising in Tirana.

1. The criminal proceedings

In 1999 the applicant was charged before the Durr ë s District Court with five counts of murder, two counts of attempted murder, one count of possession of military weapons and one count of creating and participating in an armed gang.

At public hearings before the c ourt on 25 June 1999 , 13 September 1999 and 10 December 1999 the applicant ' s lawyer was present. However, du ring the period from 10 December 1999 to 15 February 2000 , the lawyer did not assist the applicant, nor did t he latter have an officially assigned lawyer. The applicant submitted that at the hearings during that period the public prosecutor ' s office summoned witnesses against him, questioned witnesses who were present and also produced other evidence against him. The applicant ' s lawyer had summoned two witnesses on the applicant ' s behalf ; but they did not appear at the trial.

According to t he applicant ' s submissions, no defence counsel assisted him during the stage at which the parti es made their final submissions . In this context, it transpires from the minutes of the public hearings that the applicant ' s lawyer was absent without reason and that the applicant refused to present the closing arguments concerning his own defence himself . In th at connection, the applicant complained that he had requested the court to officially assign him a defence lawyer , without however receiving a reply.

According to the Government ' s submissions , the first - instance court proceeding s lasted seven months , and 21 hearings were fixed . The court ' s hearings were adjourned on several occasions as a result of the unjustified absence of la wyers, especially the applicant ' s lawyer . The latter was absent at seven consecutive court hearings without giving any reasons.

In all, only eleven hearings were actual ly held , and ten hearings could not take place on account of the lawyer ' s absence. t he court then order ed the assignment of an official lawyer , who was present at the hearing o n 28 j anuary 2000 . However, t he applicant refused to be defended by a lawyer , not chosen by him . t he court accordingly discharged the assigned lawyer and continue d the proceedings in the applicant ' s presence , but without any defence lawyer.

On 15 February 2000 the Durrës District Court found the applicant guilty and sentenced him to life imprisonment.

On 21 February 2000 the applicant lodged an appeal with the Durrës Court of Appeal against the judgment of 15 February 2000 . He alleged that during the District Court hearings he had been denied a fair trial , in breach of his right to be assisted by a lawyer in the first two months of the trial . Such a lawyer would have enabled him to prepare his defence and to summon the defence witnesses. He claim ed that he ha d not been assist ed even in the presentation of his final submissions. He also claimed that he had been abroad during the period whe n one or more of the crimes with which he had been charged, had been committed and produced customs stamps in his passport to prove that he had left the country. In his appeal, the applicant did not request the hearing of any witnesses.

On 19 April 2000 the Court of Appeal upheld the District Court ' s judgment of 15 February 2000 , while making several changes to the sentences imposed for the different counts. T he changes concerned did not modify the sentence of life imprisonment.

On 19 May 2000 the applicant lodged an appeal with the Supreme Court, alleging that in breach of his constitutional rights he had been denied the right to be legally represented in the proceedings . He complained in particular that, although he had not been duly represented, the District Court had proceeded to hear witnesses against him and consider other evidence.

On 7 December 2000 the Supreme Court upheld the Court of Appeal ' s decision on the following grounds:

“The violations alleged by the appellant were noticed and redressed by the Court of Appeal without having a significant influence on the substance of the first-instance judgment. During the pre-trial and also the trial itself , the accused was granted legal assistance. In the court ' s opinion , the unjustified absence of defence counsel, in agreement with the accused , in order to adjourn the trial could not have as a consequence the absolute nullity of the District Court ' s judgment.”

2. The Constitutional Court proceedings

The applicant lodged a complaint with the Constitutional Court relying on Article 131 (f) of the Constitution. On 19 April 2001 t he Constitutional Court (Organisation and Operation) Act (Law no. 8577) of 10 February 2000 , in accordance with S ection 31 , decided de plano to declare the complaint inadmiss ible as being “outside its jurisdiction”.

B. Relevant domestic law and practice

1. Constitution

Article 31

“During criminal proceedings everyone has the right :

( ... )

( ç ) to defend himself or to the assistance of a defence counsel chosen by him; to communicate freely and privately with him, and to be provided with a defence free of charge if he does not have sufficient means;

(d) to question witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.”

Article 42

“1. The freed om, property and rights recognis ed in the Constitution and by law may not be infringed without a fair hearing .

2. In order to protect his constitutional and legal rights, freedoms and interests, or when an accusation has been made against him, everyone has the right to a fair and public trial, within a reasonable time, by an independent and impartial tribunal establishe d by law.”

Article 131

“The Constitutional Court shall decide on :

( ... )

(f) t he final adjudication of 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.”

2. T he Constitutional Court (Organisation and Operation) Act (Law no. 8577) of 10 February 2000

Article 31

Preliminary review of complaints

1. “ A preliminary review of complaints shall be conducted by a panel of three Constitutional Court judges, including the judge rapporteur.

2. If a complaint, despite being within the jurisdiction of the Constitutional Court and submitted by a person who has Locus sta ndi to bring it, is not complete, the panel shall send it back to the complainant for completion, indicating the reasons for doing so and a deadline for its completion. When the complaint is completed, it shall be resubmitted for preliminary review by the panel. An incomplete complaint may not be subject to review.

3. If a complaint is filed by a claimant who has Locus sta n di and the case falls within the jurisdiction of the Constitutional Court, the panel shall review the case in plenary session, whereas if it is filed by a person without Locus sta n di or if the case is not within the jurisdiction of the Constitutional Court, the panel shall not review the case in plenary session. In all cases, if one of the judges of the panel has a different opinion, the complaint shall be sent for preliminary review by the full court, which shall decide by a m ajority of votes whether the case shall be heard in plenary session.

4. In all the aforementioned cases the panel or the full court shall not review the merits of the case.”

3 . Code of Criminal Procedure

Article 49

The appointed defence lawyer

“ ...

5. When the presence of a defence lawyer is required and the selected or appointed defence lawyer has not been provided, has not appeared or has abandoned the defence, the court or the prosecutor shall appoint another lawyer as substitute, who shall exercise the rights and assume the obligations of the defence lawyer.”

4 . Constitutional Court ' s practice on the right to a fair hearing

The Constitu tional Court is empowered to rule on constitutional complaints lodged by individuals alleging a breach of their right to a fair hearing . The Constitutional Court has w iden ed th e scope of the right to a fair hearing , which now encompasses various additional rights.

Since its establishment in 1992 the Constitutional Court has ruled on a number of cases concerning a fair hearing, especially after 1998 when the new Constitution entered into force. T he court has regarded an accused ' s defence through legal assistance as a w ell-established element of a fair trial .

A statistical overvi ew submitted by the respondent G overnment shows that in 2002 the Constitutional Court r uled on 243 applications, 197 of which where considered inadmissible de plano . In 2003, it rule d on 279 applications, 240 of which were declared inadmissible de plano . In 2002 and 2003, 37 of the cases declared admissible concerned the right to a fair hearing .

For instance, in the case of Ilir Sula , the Constitutional Court found a breach of the right to a fair trial in that the defendant ' s counsel had not enjoyed legal standing in proceedings before the Supreme Court (judgment no. 20 of 18 April 2000 ).

In the case of Elezi Zydi , the Constitutional C ourt quashed the Supreme C ourt ' s judgment as the complainant had not been duly defended o wi ng to the absence of his counsel in the proceedings before the Supreme Court (judgment no. 44 of 18 July 2000 ).

In the case of Hyqmet Pisha , the Constitutional Court held that under Article 42 of the Albanian Constitution it was of vital importance for a fair hearing that the accused be duly defended during the trial ( j udgment no . 5 of 17 February 2003 ) .

In the c ase of Halil Dauti , the Constitutional C ourt considered , referring to its previous case-law , that there was a breach of the requirements of a fair hearing if, in the same proceedings, defence counsel represented defendants having a conflict of interests (j udgment no. 9 of 28 April 2004 ).

COMPLAINTS

The applicant complain ed under Article 6 §§ 1 and 3 (c) and (d) of the Convention that he had been denied a fair hearing . He submitted in particular that the lack of defence counsel at different stages of the trial had breach ed of his right to be defended through legal assistance. Moreover, because of the absence of defence counsel , he had been unable to question witnesses who were present or to obtain the appearance of witnesses, experts and other persons on his behalf.

THE LAW

The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that he had been denied a fair hearing as he had not been duly defended through legal assistance and that he had not been able to question certain witnesses.

In its relevant parts , Article 6 of the Convention reads 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:

( ... )

(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 cond itions as witnesses against him.

( ... ).

A. The Government ' s objection

The Government contended that the application was inadmissible as having been lodg ed outside the six - month period under Article 35 § 1 of the Convention. Thus, owing to the discretionary character of the proce e d ings in the Constitutional Court and the latter ' s de plano inadmissibility decision in the present case , the final effective remedy wit hin the meaning of th at provision was in fact the decision of the Supreme Court of 7 December 2000 , whereas the applicant had filed his application on 3 August 2001 .

The Government argued that a complaint can be validly brought before the Constitutional Court only when the judicia l system ha s failed to identify and redress the violation of the right to a fair hearing . Consequently, the mechanism of complaint available under Article 131 ( f) of the Constitution to individuals before the Constitutional Court was of a subsidiary character. The complaint mechanisms before that court bec a me relevant only if the previously employed remedies , taken as a whole , ha d failed to ensure respect for the right to a fair hearing, as is made clear by Article 135 of the Constitution. It was the entirety of the proceedings , from the District Court to the Supreme Court , which the complainant submitted for the scrutiny of th e Constitutional Court . That court intervened to quash judgments of the Supreme Court only when the latter had failed to respect the constitutional protection of individuals ' rights to a fair hearing. I n the present case , the Constitutional Court considered that the proceeding s as a whole had been fair and consequently issued a de plano inadmissibility decision.

The Government further submitted that the legal and political context in a country had to be taken into account when applying Article 35 of the Convention. In the Albanian legal context , an appeal to th e Constitutional Court was not a remedy offering clear and certain chances for redressing the situation and therefore not to be exhausted for the purposes of Article 35 § 1 of the Convention . The Government referred in particular to the survey of the practice of the Constitutional Court , from which it emerge d that in 2002 and 2003 the Court had declared admissible only 37 complaints relating to the right to a fair hearing.

The applicant replie d, with refer ring to Article 131 ( f) of the Constituti on and the practice of the Constitutional Court , that in order to exhaust a ll internal remedies at the domestic level, individuals had to file a complaint with the Constitutional Court if and when they alleged a breach of the right to a fair hearing. Moreover, the right to a defence counsel was part of the concept of a fair hearing as established by the case-law of the Constitutional Court . The latter had the competence and the obligation to consider the case and to deci de it , if necessary by means of a judgment . Accordingly , the applicant claimed that he had filed his application with the Court in time, as the Constitutional Court ' s decision was dated 19 April 2001 , even if it was a de plano inadmissibility decision.

The Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from having to answer for their acts before an international body prior to having had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – , that there is an effective remedy available in respect of the alleged breach in the domestic system , whether or not the provisions of the Convention are incorporated in national law. Accordingly , that rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems for safeguarding human rights (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65). It follows from the principle of subsidiarity outlined above that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention.

Turning to the circumstances of the instant case , the Court notes that the Constitutional Court ' s decision of 19 April 2001 , when declaring the applicant ' s constitutional complaint inadmissible, gave no reason s other than that the complaint “lay outside its jurisdiction”. The issue arises, therefore, whether the applicant ' s constitutional complaint was nevertheless a justified remedy under the circumstances of the case.

The Court notes at the outset that the right to legal counsel in criminal proceedings – lying at the heart of the applicant ' s complaint before the Court – is enshrined as a constitutional right in Articles 31 and 42 of the Constitution and is indeed well established in the practice of Albanian courts. Moreover, under Article 131 of the Constitution, the Constitutional Court is called upon to examine constitutional complaints alleging, inter alia , breach es of an individual ' s right to a fair hearing. This remedy is exceptional in that the Constitutional C ourt is not called upon to examine the entire case; rather , its jurisdiction is limited to an examination of the alleged breach of the particular constitutional right at issue. On the other hand, as the Government have pointed out, within this scope the Constitutional Court is called upon to examine the entirety of the proceedings, from the proceedings before the court of first instance up to the proceedings before the Supreme Court. Nor is it in dispute between the parties that the ensuing decision of the Constitutional Court , which has the competence to quash decisions of the lower courts, is legally binding and enforceable. In this context , the Court also notes the statistics provid ed by the respondent Government , from which it emerg es that the Constitutional Court upheld a sizeable number of constitutional complaints which were filed in the years 2 002 and 2003 and concerned the right to a fair hearing. It appears that this is not a m erely discretionary remedy. Finally, had the applicant ' s complaint been incomplete, the Constitutional Court , rather than declaring it inadmissible, would have sent it to the applicant for completion in accordance with section 31 of the Constitutional Court (Organisation and Operation) Act ( Law no. 8577 ).

In the Court ' s opinion, therefore, the Constitutional Court was called upon to deal with the applicant ' s constitutional complaint , which it dismissed after examining the facts of the case in the light of the applicant ' s constitu tional right to a fair hearing.

It follows that the constitutional complaint to the Albanian Constitutional Court can be considered an effective remedy the exhaustion of which is required according to Article 35 of the Convention. The applicant did in fact exhaust this remedy. The Constitutional Court ' s decision is dated 19 April 2001 and the applicant introduced his application on 3 August 2001 . He has therefore complied with the six-month ' time-limit prescribed in Article 35.

For these reasons, the Court dismisses the Government ' s objection .

B. Merits

a) T he applicant alleged, first, that in the criminal proceedings against him he had not been properly represented by a lawyer as required by Article 6 § § 1 and 3 (c) of the Convention .

The Government contended that from the time of the investigation onwards , and in particular at the trial , the applicant had had every opportunit y to exercise his right to a fair hearing and , in particular , to be represented by a lawyer Thus, d espite his lawyer ' s continuous and unjustified absence , the District C ourt adjourned the hearing on several occasions , giving the lawyer the chance to be present . There was no statement in the file of that c ourt according to which the applicant ' s lawyer had ceased to represent the applicant. T he District Court a ssign ed the applicant a lawyer under the legal - aid scheme . When t he latter presented herself on 28 January 2000 , the applicant declare d that he wished to have his own lawyer and did not agree to instruct another lawyer assigned by the Court .

In the Government ' s opinion, the decision taken by the District Court to continue the hearing s , regardless of the presence or absence of the applicant ' s legal representation , did not infringe the applicant ' s constitutional right s . In fact, t he applicant ' s right to be defended through legal assistance was sec ured even during the hearing s before the Court of Appeal and Supreme Court, where he was represented by the same lawyer.

The applicant disputed the Government ' s submissions and claimed that his lawyer had not represent ed him during the most important part of the first - instance proceedings. Regardless of the reasons for his lawyer ' s absence , the authorities had authorised such absence , and no disciplinary measures had been taken by the compe tent authority in respect of any misconduct of the lawyer . As a result, and having regard to the complexity of the case and the severity of the punishment , the applicant concluded that he had been unable duly to exercise his rights under A rticle 6 § 3 ( c ) of the Convention .

b) Ins of ar as the applicant complained , second ly , that he had been unable to question certain witnesses, as required by Article 6 §§ 1 and 3 (d) of the Convention, the Government submitted that t he non- appearance of defence witnesses at a time when the defen c e had wished to bring them before the District Court was not that court ' s responsibility . In particular, the applicant had chosen to remain pas sive and deliberately not to exercise his rights under the Convention . Indeed, this was part of the defence strategy which he had chosen. T he trial as a whole ha d been fair, as required by law and the Convention , and the a pplicant ha d effectiv ely had the opportunit y to exercise his rights during the proceedings.

The applicant contended that the District Court had failed to comply with the provisions of the Criminal Code , which required it to summon witnesses on his behalf. Moreover, he could not accept the Government ' s assertions about the possibility of summoning witnesses during the proceedings before the Court of Appeal.

c) Having regard to the applicant ' s complaints and the Government ' s observations, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. This part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reason s, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Mark Villiger Georg Ress              Deputy Registrar President