FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38349/05 by Agim HYSI against Albania

The European Court of Human Rights (Fourth Section), sitting on 26 February 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 15 October 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Agim Hysi , is an Albanian national who was born in 1957 and lives in Tirana.

A. The circumstances of the case

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

1. Administrative and criminal proceedings against the applicant

In 1989 the applicant was appointed a judge at the Vlora District Court. In October 2001 a disciplinary inquiry against him was opened by inspectors of the High Council of Justice (“HCJ”). On the basis of the results of this inquiry, the prosecutor ’ s office was asked to open a criminal investigation against the applicant. The investigation was opened on 12 January 2002 . This resulted in the applicant being suspended from work.

On 26 April 2002 the prosecutor discontinued the criminal investigation for lack of evidence. However, o n 27 May 2002 the HCJ dismiss ed the applicant for flagrant violations of professional discipline.

2. Judicial proceedings concerning the applicant ’ s dismissal

On 3 June 2002 the applicant challenged the decision of 27 May 2002 by filing an appeal with the Supreme Court, which was competent to determine issues of both fact and law. On 18 N ovember 2002 the Joint Colleges of the Supreme Court dismissed the appeal. On 20 June 2003 the applicant lodged a constitutional complaint against this ruling. He alleged violations of his right to a fair trial in the proceedings before the HCJ and before the Supreme Court.

The applicant ’ s constitutional complaint was rejected on 14 July 2003 by the Constitutional Court , which found the complaint inadmissible and stated that

“[the Constitutional Court ] decided not to put the case before a plenary session for examination.”

No specific reasons were given for declaring the complaint inadmissible (“first inadmissibility decision”). No further appeal lay against this ruling. On 16 November 2004 the applicant lodged a fresh complaint with the Constitutional Court . Referring to a number of Constitutional Court decisions given before 14 July 2003 in which the court had found violations of fair trial guarantees similar to the violations which he alleged occurred in his case, the applicant contended that the Constitutional Court had erred in its unreasoned decision of 14 July 2003. On 28 April 2005, t he Constitutional Court dismissed th is new complaint as being substantially the same as his 2003 application (“second inadmissibility decision”) .

B. Relevant domestic law and practice

1. The relevant provisions of the Albanian Constitution read as follows:

Article 42 § 2

“ In the protection of his constitutional and legal rights, freedoms and interests, or in the event of criminal charges being brought against him , everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”

Article 142 § 3

“ State bodies shall comply with judicial decisions.”

Article 131

“ The Constitutional Court shall determine : ... (f) F ina l complaints by individuals alleging violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

Article 147

“ 4. The High Council of Justice decides on the transfer of judges as well as their disciplinary responsibility pursuant to the law. (...)

6. A judge may be removed from office by the High Council of Justice for commission of a crime, mental or physical incapacity, acts and behaviour that seriously discredit the position and image of a judge or professional incompetence . The judge has the right to complain against this decision to the Supreme Court, which decides by Joint Colleges.”

Article 141

“The Supreme Court has original and review jurisdiction ...”

2 . Law on the organi s ation and functioning of the HCJ (Law No. 8811 dated 17 May 2001, amended by Law No. 9448 dated 5 December 2005)

Th is law governs the membership, organis ation, functioning and responsibilities of the H CJ , which is chaired by the President of the Republic. Among its chief tasks, the HCJ decides on the appointment and dismissal of judges for courts of first instance and courts of appeal. The law also governs the conduct of disciplinary proceedings taken against judges. According to the law, it is incumbent upon the Minister of Justice to inspect courts of first instance and courts of appeal. The Minister submits requests for disciplinary proceedings to be taken against judges by the HCJ , which takes a decision thereon. An appeal against a disciplinary decision of the HCJ lies with the Supreme Court .

3 . Law on the organi s ation of judicial power in the Republic of Albania (Law No. 8436 dated 28 December 1998)

Chapter V of th is law governs the disciplinary responsibility of judges. Section 40 provides that judges bear responsibility for breaches of discipline and the commission of acts or behaviour that seriously di scredit their image and the authority of justice.

4 . Law on the organi s ation and functioning of the Constitutional Court of the Republic of Albania (Law No. 8577 dated 10 February 2000)

Section 30 of th is law concerns the deadline for the submission of applications to the Constitutional Court . Individual applications for alleged violations of constitutional rights should be submitted no later than 2 years from the commission of the violation. The same 2 year time - limit applies in the event of the notification of a decision from the relevant public authority, follo wing exhaustion of domestic remedies.

Section 31 provides that a prior examination of a constitutional application is conducted by a panel of 3 judges. If the constitutional application does not fall within the jurisdiction of the Constitutional Court or has been lodged by a party who does not have locus standi , the panel decides on its inadmissibility. If the constitutional complaint falls within the jurisdiction of the Constitutional Court or has been lodged by a party who has locus standi , the panel decides that it should be examined in a plenary session, which then proceeds to examine the merits of the complaint.

COMPLAINTS

The applicant complained under Article 6 § 1 about lack of reasoning in both of the Constitutional Court ’ s decisions and about the unfairness of the proceedings before the Supreme Court and the HCJ.

THE LAW

The applicant ’ s complaints under Article 6 § 1 of the Convention relate to the lack of reasoning of the Constitutional Court ’ s decisions and unfairness of proceedings before the Supreme Court and the HCJ.

Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision ( Paul and Audrey Edwards v. the United Kingdom ( dec .) , no. 46477/99, 7 June 2001) . This entitles only remedies which are normal and effective to be taken into account (see Fernie v. the United Kingdom ( dec .), no. 14881/04, decision of 5 January 2006).

The Court reiterates that a complaint to the Albanian Constitutional Court is one of the remedies that should in principle be exhausted in respect of issues arising under Article 6 § 1 of the Convention (see Qufaj Co. Sh.p.k . v. Albania , no. 54268/00, § 42 , 18 November 2004 ; Beshiri and Others v. Albania , no. 7352/03, § 32 , 22 August 2006 ).

In the present case, the Court notes that the applicant ’ s first constitutional complaint of 20 June 2003 was rejected as being inadmissible by the Constitutional Court on 14 July 2003 and that no further domestic appeal lay against that ruling. However, the applicant lodged a fresh constitutional complaint with the Constitutional Court on 16 November 2004. He invoked a number of Constitutional Court ’ s decisions, requesting that court to review his constitutional grievances and to give reasons for its first inadmissibility decision. The second constitutional complaint was rejected on 28 April 2005 by the Constitutional Court as being substantially the same as the first application. No further reasons were provided in respect of the specific issues raised by the applicant.

The application to the Court was introduced on 15 October 2005, namely less than six months from the date of the Constitutional Court ’ s second inadmissibility decision, but more than six months after the date of the Constitutional Court ’ s first inadmissibility decision. It must therefore be determined which ruling constitutes the final decision for the purpose of Article 35 § 1 of the Convention.

The Court notes that at the material time the law on the organisation and functioning of the Constitutional Court of the Republic of Albania did not provide for any appeal against a ruling adopted by the Constitutional Court itself, which was considered final.

It further observes that in his second constitutional complaint, the applicant invoked Constitutional Court decisions that had been adopted even before the introduction of his first constitutional complaint. There is no indication in the file that the applicant was prevented from referring to this case-law in his first application to the Constitutional Court .

The Court is of the opinion that the applicant ’ s second complaint was in fact an unsuccessful attempt to reopen the proceedings on a decision which had obtained the force of res judicata . Therefore, the applicant ’ s second constitutional complaint is akin to an application for reopening.

The Court reiterates its case-law that an application for a reopening of proceedings does not restart the running of the six months ’ period under Article 35 § 1 of the Convention, unless it is successful and results in a reopening of the proceedings (see, most recently, Wende and Kukówka v. Poland , no. 56026/00, § 48, 10 May 2007; and Eder v. Germany ( dec .), no. 11816/02, 13 October 2005). As the applicant ’ s second constitutional complaint was rejected as being substantially the same as the first constitutional complaint, it follows that the final decision within the meaning of Article 35 § 1 was given on 14 July 2003, which is more than six months before the date on which the present application was submitted to the Court. Consequently, the application has been submitted out of time and for that reason must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these re asons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President