THIRD SECTION [1]

CASE OF BALLIU v. ALBANIA

(Application no. 74727/01)

JUDGMENT

STRASBOURG

16 June 2005

FINAL

30/11/2005

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 Balliu v. Albania ,

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

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr B.M. Zupančič , Mr J. Hedigan , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having deliberated in private on 27 May 2004 and on 24 May 2005 ,

Delivers the following judgment, which was adopted on the last - mentioned date:

PROCEDURE

2 . The applicant, who had been granted legal aid, was represented by Mr P. Pavarini , a lawyer practising in Turin ( Italy ) . The Albanian Government (“the Government”) were represented by their Agent, Mr S. Puto .

3 . The applicant alleged that the lack of defence counsel at the trial breached his right to be defended through legal assistance. Moreover, because of the absence of defence counsel, he had been unable duly to question witnesses who were present or to obta in the appearance of witnesses on his behalf.

4 . The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5 . By a decision of 30 September 2004 , following a hearing on admissibility and the merits (Rule 54 § 3), the Court declared the application admissible.

6 . The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ) , t he parties replied in writing to each other ' s observations.

7 . On 1 November 2004 the Court changed the compositio n of its Sections (Rule 25 § 1) , but this case remained with the Chamber consti tuted within former Section III .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . The applicant was born in 1971 and is currently serving a prison sentence in Peqin Prison in Albania .

9 . In crim ina l 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 instigators of an ar med gang known as the “ Kateshi Gang”. The gang , organised as a m ilitary commando, aimed to ave nge the murder of their member s in conflict s with other gangs and was f ina nced by extorting money from various businessmen in the area.

A. The crim ina l proceedings

10 . 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.

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

12 . According to t he applicant ' s submissions, no defence counsel assisted him during the stage at which the parti es made their f ina l 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 make his closing defence submissions himself . In th at connection, the applicant complained that he had requested the court to officially assign him a defence lawyer, but had not receiv ed a reply.

13 . According to the Government ' s submissions , the first - instance court proceeding s lasted seven months and 21 hearings were arranged . 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.

14 . In all, only eleven hearings were actually held and ten could not take place on account of the lawyer s ' absence. t he court then order ed the assignment of Mrs Meta, 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 officially assigned lawyer and continue d the proceedings in the applicant ' s presence , but without any defence lawyer.

15 . By letter of 13 December 1999 the Durrës District Court info rmed the Minister of Justice, among others, of the misconduct on the part of the applicant ' s counsel and requested him to interven e in the matter . However, no discipl ina ry measures relating to Mr Leli were taken by the Tirana Bar.

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

17 . 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 that he had not been assisted by a lawyer during 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 f ina l 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 exam ina tion of any witnesses.

18 . 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.

19 . 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 examine witnesses against him and to consider other evidence.

20 . 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 noted and redressed by the Court of Appeal without having a significant influence on the substance of the first-instance judgment. During the pre-trial stage 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.”

B. The Constitutional Court proceedings

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

II. RELEVANT DOMESTIC LAW

A . Constitution

22 . The relevant provisions of the Albanian Constitution provide:

Article 31

“During crim ina l proceedings everyone has the right :

...

(ç) to defend himself or to be assist ed by defence counsel chosen by him; to communicate freely and privately with him, and to be provided with defence counsel 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.”

B . Code of Crim ina l Procedure

23 . Insofar as relevant, the Albanian Code of Criminal Procedure provides:

Article 49

The appointed defence lawyer

“ ...

5. T hen 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.”

THE LAW

ALLEGED VIOLATION S OF ARTICLE 6 § § 1 AND 3 (c) AND (d ) OF THE CONVENTION

24 . 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 or to obta in the appearance of witnesses on his behalf .

The relevant parts of Article 6 of the Convention read as follows:

“1. In the determ ina tion of ... any crim ina l charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ;

3. Everyone charged with a crim ina l 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 exam ina tion of witnesses on his behalf under the same conditions as witnesses against him ;

... ”

A. A lleged violation of A rticle 6 § § 1 and 3 (c)

1. The parties ' submissions

26 . The applicant alleged, first, that in the crim ina l proceedings against him he had not been properly represented by a lawyer as required by Article 6 §§ 1 and 3 (c) of the Convention. This would have been particularly important in view of the complexity of the case and the severity of the sentence.

27 . The applicant observed that it was evident both from the Government ' s submissions and the documents in the file that his lawyer had not duly represent ed him during the most important parts of the first - instance proceeding s before the Durrës District Court . Regardless of the grounds for his counsel ' s absence no discipl ina ry measures had been taken by the competent authority in respect of his misconduct .

28 . On 26 November 2004 the applicant filed with the Court two statements made before a Durrës notary on 4 July 2003 in which Mr Leli , his counsel, and Mrs Meta, the appointed lawyer, declared that the Durrës District Court had made it impossible for them to provide the applicant with due legal assistance. Furthermore, Mr Leli maintained that the District Court had dismissed him from assisting the applicant during the first-instance proceedings and that he had been threatened by unknown persons.

29 . The Government rejected the applicant ' s allegations. They 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 . Furthermore, t he District Court a ssign ed the applicant a lawyer under the legal-aid scheme. When t he latter introduced 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 c ourt .

30 . In the Government ' s submission s , the decision by the District Court to continue the hearing s regardless of the presence or absence of the applicant ' s legal representat ive did not infringe the applicant ' s constitutional rights. 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 the Supreme Court, at which he was represented by the same lawyer.

31 . In respect of the applicant ' s statements filed on 26 November 2004 , the Government maintained that in the District Court ' s file there were no indications to support the claim that the District Court had dismissed the applicant ' s counsel.

2. The Court ' s assessment

32 . The Court reiterates that , as a general principle based on the notion of a fair trial, a person charged with a crim ina l offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require ( see Campbell and Fell v. the United Kingdom , judgment of 28 June 1984, Series A no. 80, p. 45, § 99 , and Pakelli v. Germany , judgment of 25 April 1983, Series A no. 64, p. 15, § 31).

33 . Having regard to the purpose of the Convention, which is to protect rights that are practical and effective , the Court has consistently found that, while State s cannot be held responsible for every shortcoming on the part of lawyer s appointed for legal - aid purposes, it is for the competent authorities to take steps to ensure that , in the particular circumstances of the case , applicant s effectively enjoy the right to which they are entitled ( see Artico v. Italy , judgment of 13 May 1980 , Series A no. 37, p.18, § 36 ).

34 . In the present case, the Court must examine whether the State can be made responsible for the failure of the lawyer chosen by the applicant to fulfil his duty, in breach of the defendant ' s rights under the Convention.

36 . The Court further notes that the applicant never informed the Durr ë s District Court of any shortcomings on the part of his representative or of the officially appointed lawyer, nor did he ask for a different one.

37 . In this situation the Court finds that the authorities adequately discharged their obligation to provide legal assistance, both by adjourning the hearings in order to give the applicant ' s counsel an opportunity to fulfil his duty and by appointing a lawyer under the legal-aid scheme.

38 . Bearing in mind also the authorities ' obligation under Article 6 § 1 of the Convention to conduct the proceedings “within a reasonable time” , the circumstances of the applicant ' s representation during his trial do not disclose a failure to provide legal assistance as required by Article 6 § 3 (c ) of the Convention or a denial of a fair hearing under paragraph 1 of that provision.

B . A lleged violation of A rticle 6 § § 1 and 3 (d)

1. The p arties ' submissions

39 . T he applicant complained , next, that he had been unable to question certain witnesses, as required by Article 6 §§ 1 and 3 (d) of the Convention .

40 . In particular, the District Court had failed to comply with the provisions of domestic law which, in the applicant ' s view, 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. He argued that the improper attitude of his lawyer in the first-instance proceedings had clearly continued even during the proceedings before the Court of Appeal.

41 . T he Government contended that the failure of defence witnesses to appear at a time when the defence had wished them to give evidence before the District Court was not that court ' s responsibility. In particular, the applicant had , as part of his defence strategy, deliberately chosen to remain passive and not to exercise his rights under the Convention. Indeed, the trial as a whole had been fair, as required by law and the Convention, and the applicant had effectively had the opportunity to exercise his rights during the proceedings.

2. The Court ' s assessment

43 . In the present case, it must, therefore, be examined whether the applicant was provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 of the Convention in respect of the evidence given by the witnesses.

44 . A t the hearings before the Durr ë s District Court both the applicant and his counsel, when confronted with the witnesses for the prosecution, had the opportunity to put questions to them, though they chose not to do so: the applicant ' s lawyer by being absent and the applicant by remaining silent.

45 . Accordingly, it cannot be said that the authorities did not comply with their duty under Article 6 §§ 1 and 3 (d) to afford the applicant sufficient opportunity to question witnesses at the trial.

C. Conclusion

46 . In conclusion, the Court considers that, taken as a whole, the criminal proceedings against the applicant could not be regarded as unfair. Thus, no breach was established under Article 6 §§ 1 and 3 (c) in relation to the legal assistance received by the applicant in particular during the trial at first instance before the Durr ë s District Court. There has equally been no violation of the applicant ' s rights under Article 6 § 3 (d) of the Convention in respect of the possibility of questioning witnesses in these proceedings.

FOR THESE REASONS, THE COURT UNANIMOUSLY

H olds that there has been no violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention .

Done in English, and notified in writing on 16 June 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Mark Villiger Georg Ress              Deputy Registrar President

[1] . In its composition before 1 November 2004 .