FOURTH SECTION

DECISION

Application no . 21718/05 Gjolek ZENELI against Albania

The European Court of Human Rights ( Fourth Section ), sitting on 10 March 2015 as a Committee composed of:

George Nicolaou , President, Nona Tsotsoria , Krzysztof Wojtyczek , judges, and Fatos Arac ı , Deputy Section Registrar ,

Having regard to the above application lodged on 26 May 2005 ,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Gjolek Zeneli , is an Albanian national, who was born in 1939 and lives in Tirana . The applicant, who was granted legal aid, was represented before the Court by Mr S. Puto , a lawyer practising in Tirana .

2. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Meneri.

A. The circumstances of the case

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

4 . On 3 February 2000 the Tirana Court of Appeal acquitted the applicant of the offence of production and importation of and trading in food that was dangerous for the health of consumers on the ground that he had not committed the offence. However, the applicant had already served two years ’ imprisonment on the strength of the sentence imposed by the District Court, which had found him guilty of the above offence.

5 . On an unspecified date , relying on Article 269 of the Code of Criminal Procedure, the applicant lodged a claim with the District Court requesting compensation for the damage he had sustained as a result of 810 days of unlawful detention.

6 . On 3 July 2000 the District Court , relying on Article 57 of the Criminal Code (“CC”) which provided that one day of pre-trial detention equalled 1,000 Albanian leks (“ALL”), awarded him ALL 810,000 in compensation for non-pecuniary damage. The judgment was enforced on an unspecified date in 2000, when the Ministry of Finance paid the applicant the above-mentioned amount.

7 . On 24 January 2001 Article 57 of the C C was amended to provide, inter alia , that one day of pre-trial detention should be converted into a fine of ALL 5,000.

8 . On 15 July 2002 the applicant , who was represented by a lawyer, brought proceedings before the District Court seeking the adjustment of the compensation awarded in 2000, in accordance with the new criteria set forth in the amended Article 57 of the C C . He did not rely on any domestic case ‑ law in support of his claim .

9 . On 2 December 2002 the District Court dismissed the applicant ’ s request. It found that the judgment of 3 July 2000 had acquired the force of res judicata and that the amended Article 57 of the C C did not have retrospective effect . The court further held that the principle of retroactive application of a favourable criminal law, as enshrined in Article 29 § 3 of the Constitution and Article 3 of the CC, did not apply to civil proceedings which had been resolved by way of a final decision . The applicant appealed.

10 . On 27 May 2003 the Court of Appeal upheld the decision. The applicant was represented by a lawyer.

11. On 26 June 2003 the applicant appealed to the Supreme Court.

12. At the hearing of 10 June 2004 the applicant ’ s lawyer relied on a District Court ’ s decision of 15 March 2002 given in favour of claimant D.B (see paragraph 20 below). On the same day, the Supreme Court upheld the lower courts ’ decisions. It held that the applicant had obtained a decision which had acquired the force of res judicata . The subsequent change or reversal of the domestic practice could not serve as grounds for review or re-consideration of final decisions.

13. The applicant lodged a constitutional appeal complaining about the interpretation of the domestic law by the courts.

14. On 1 March 2005 the Constitutional Court, sitting as a bench of three judges, declared the complaint outside of its jurisdiction ( nuk përfshihet në juridiksionin e gjykatës ) .

B. Relevant domestic law and practice

1 . The Constitution

15. The relevant articles of the Constitution read as follows:

Article 29

( ... )

3. A favourable criminal law has retroactive effect.

Article 141

( ... )

2. With a view to harmonising or amending the judicial practice [case-law], the Supreme Court has the right to select and examine specific judicial cases in Joint Benches.

2 . Criminal Code (“CC”)

16. The relevant provisions of the CC read as follows:

Article 3 – Application in time of the criminal law

No one may be sentenced for an offence which did not constitute a criminal offence under the law at the time it was committed.

A new law which decriminalises a criminal offence has retroactive effect. If the person has been sentenced, the enforcement of the sentence shall not commence and, if it has begun, it shall cease.

If a law in force at the time when a criminal offence was committed differs from a subsequent law, the law whose provisions are more favourable to the person who has committed the criminal act shall apply.

Article 57 – Calculation of detention

For the purposes of converting the period spent in pre-trial detention into a term of imprisonment, a fine, or forced labour serving the public interest, the following criteria shall be applied:

One day of pre-trial detention shall be converted into one and a half days ’ imprisonment.

One day of pre-trial detention shall be converted into a fine of one thousand leks.

One day of pre- trial detention shall be converted into eighteen hours of forced work serving the public interest.

17 . As amended by Law no. 8733 of 24 January 2001 the third paragraph of Article 57 reads as follows:

O ne day of pre-trial detention shall be converted into a fine of five thousand leks.

3 . Code of Criminal Procedure (“CCP”)

18. The relevant provisions of the CCP read as follows:

Article 269

1. On pain of nullity, a request for compensation must be presented within three years from the date of the final acquittal judgment.

2. The amount of compensation and the method of assessment shall be determined by means of a special law.

Article 438

1. In the event of harmonising or changing the judicial practice, the Supreme Court has the right to select and examine a case in Joint Benches.

( ... )

4 . Domestic courts ’ practice

19 . In their decision no. 4 of 27 March 2003 the Supreme Court ’ s Joint Benches held that under paragraph 3 of Article 3 of the CC a favourable criminal law had retrospective effect in so far as a final decision had not been adopted in relation to an accused ’ s conviction and sentence.

20 . By a final decision of 18 November 1998 the Tirana Court of Appeal awarded a certain D.B. compensation for an unlawful period of detention pending the outcome of the proceedings, following his acquittal. On an unspecified date, on the basis of the amended Article 57 of the CC , D.B. sought to obtain an adjustment of his compensation. On 15 March 2002 the District Court granted hi s request . On 9 July 2002 and 11 July 2003 the Court of Appeal and the Supreme Court upheld the District Court ’ s judgment of 15 March 2002.

COMPLAINTS

21. The applicant complained of a violation of Article 6 § 1 of the Convention as well as of Article 14 taken in conjunction with both Article 1 of Protocol No. 1 to the Convention and Article 3 of Protocol No. 7 to the Convention concerning the discriminatory nature of the domestic courts ’ decision in his regard.

THE LAW

A. As regards an alleged breach of Article 6 § 1 of the Convention

22. The applicant complained about the unfairness of the proceedings under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

23 . The Government argued that the applicant ’ s complaint about unjust compensation constituted res judicata . A favourable criminal law did not have retroactive effect in respect of decisions that had acquired the force of res judicata . They also contended that a change in the legislation as regards the amount of compensation for unlawful detention did not affect those persons who had already received such compensation under the existing standards .

24 . Further, the Government submitted that had the domestic courts ruled in favour of the applicant, as they did in the case of D.B., when a decision had become res judicata , they would have set the wrong precedent as regards the retroactive effect of the legislation. The Government stated that the judgment in the case of D.B. had been adopted two months after the amended law ’ s entry into force. The lack of case-law in that regard had led the domestic courts to adopt an unjust conclusion. The change of the domestic court ’ s reasoning in the applicant ’ s case was objective and justified as it brought the case-law into harmony with the principle of the good administration of justice and other general principles of law.

25 . The applicant argued that he had been discriminated against in that his case had had a different outcome to the decision in the similar case of D. B. He submitted that a change in the domestic case-law could result only from a decision of the Supreme Court ’ s Joint Benches in accordance with Article 438 of the Code of Criminal Procedure.

26. The Court reiterates that its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly made by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action. The Court ’ s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 197, ECHR 2012 and the references cited therein).

27. In the instant case, the Court can see no evidence to suggest the domestic proceedings were not conducted in accordance with the requirements of a fair hearing. The applicant benefitted from adversarial proceedings, he was represented by a lawyer and availed himself of every opportunity to make submissions before the domestic courts. He did not point to any failure on the part of the national court to apply and respect any specific procedural guarantees under Article 6 § 1 of the Convention . The Court further reiterates that it is for the national courts to interpret domestic law and assess the relevance of proposed evidence . It considers that the national courts ’ assessment was not flawed by arbitrariness or manifest unreasonableness and their decisions contained adequate reasons.

28 . It follows that this complaint must be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

B. As regards an alleged breach of Article 14 taken in conjunction with Article 5 § 5 of the Convention

29 . The applicant complained that there had been a breach of Article 14 taken in conjunction with both Article 1 of Protocol No. 1 to the Convention and Article 3 of Protocol No. 7 to the Convention, in so far as the domestic courts ’ judgments wer e discriminatory in his regard.

30 . The Court reiterates that it is master of the characterisation to be given in law to the facts of a case. It does not consider itself bound by the characterisation given by an applicant or a respondent State (see Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). In communicating the case, t he Court consider ed that it was appropriate to examine the applicant ’ s complaint s under Article 14 in conjunction with Article 5 § 5 of the Convention , since the application mainly concerned the alleged discriminatory treatment of the applicant as regards his compensation owing to unlawful detention.

Article 5 § 5 of the Convention reads:

“5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 14 of the Convention reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

3 1 . The Government submitted that the applicant had never raised at any stage of the proceedings a complaint of an infringement of his right under Article 14 of the Convention. They asserted that the applicant made reference to another domestic court judgment in order to support his allegation that his civil claim did not constitute res judicata . They requested that this complaint be declared inadmissible for non-exhaustion. The Government also questioned the applicability of Article 14 of the Convention.

3 2 . The applicant argued that he had exhausted the domestic remedies, as he had submitted his complaints to the domestic courts, and that Article 14 was applicable.

3 3 . The Court finds it unnecessary to rule separately on the Government ’ s objection of non-exhaustion of domestic remedies, as, in any event, the complaint is inadmissible on the following grounds .

3 4 . The Court reiterates that under Article 35 § 1 of the Convention it examines a complaint if “all domestic remedies have been exhausted” and if it has been submitted “within a period of six months from the date on which the final decision was taken”. It is not open to the Court to set aside the application of the six-month rule even in the absence of a relevant objection from the Government (see, amongst others, Rizi v. Albania (dec.), no. 49201/06, 8 November 2011).

3 5 . The Court further recalls that for the purposes of Article 35 § 1 of the Convention a constitutional complaint is an effective remedy and is thus required for exhaustion purposes in respect of an applicant ’ s right to a fair hearing under Article 6 of the Convention (see Jakupi v. Albania (dec.), no. 11186/03, 1 December 2009; Beshiri and Others v. Albania , no. 7352/03, §§ 30-34, 22 August 2006; and Balliu v. Albania (dec.), no. 74727/01, 30 September 2004 ). A constitutional appeal is not an effective remedy and is thus not required for exha ustion purposes in respect of an alleged breach of other Convention rights (see Jakupi , cited above) . The Supreme Court ’ s ruling would be considered final for the purposes of Article 35 § 1 of the Convention. Therefore, applications must be lodged within six months from the date of such decision .

3 6 . T urning to the instant case, t he Court considers that the final domestic court ’ s judgment in respect of th ese complaint s is the Supreme Court ’ s decision of 10 June 2004. The applicant lodged these complaint s on 26 May 2005 , that is more than six months after that decision. They should therefore be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for having been lodged out of time .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 April 2015 .

Fatoş Aracı George Nicolaou Deputy Registrar President