Communicated on 5 February 2016

FIRST SECTION

Application no. 47403/15 Mark FRROKU against Albania lodged on 22 September 2015

STATEMENT OF FACTS

The applicant, Mr Mark Frroku, is an Albanian national who was born in 1972 and lives in Tirana. He is represented before the Court by Mr T. Prendi, a lawyer practising in Tirana.

A. The circumstances of the case

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

The applicant is Member of Parliament. He is chairman of a political party.

1. The first set of criminal proceedings against the applicant

On 20 March 2015 the General Prosecutor ’ s Office (“GPO”) opened criminal proceedings against the applicant on suspicion of having made a false report of a crime and false statements before the prosecutor as well as for having threatened people in order to obtain false statements in breach of Articles 305, 305/a and 312/a of the Criminal Code (“CC”).

Having regard to his p arliamentary immunity, on 26 March 2015 Parliament authorised the applicant ’ s arrest. As a result, on the same day the GPO ordered the applicant ’ s arrest which was carried out with immediate effect.

On 27 March 2015 the GPO requested the Supreme Court to validate the applicant ’ s arrest.

On 28 March 2015 the Supreme Court found that the GPO had complied with domestic law in ordering the applicant ’ s arrest, since it had obtained Parliament ’ s prior authorisation in accordance with Article 73 § 2 of the Constitution. The applicant had been charged with a number of offences. Given his public office, the financial situation, the possibility that he could tamper with evidence as well as the information obtained from the Belgian authorities about the applicant ’ s alleged involvement in the commission of a crime in Belgium, there was reasonable suspicion of his fleeing. The Supreme Court thus considered that the applicant ’ s deprivation of liberty was lawful. As to the security measure to be imposed on the applicant, the Supreme Court ordered the applicant ’ s placement under house arrest.

2. The second set of criminal proceedings against the applicant

On 27 March 2015 the Interpol office in Tirana (“Interpol Tirana”) informed the GPO of the existence of an international arrest warrant (“IAW”) against the applicant. The IAW had been issued by the Belgian prosecutor ’ s office in connection with the criminal offence of premeditated murder committed in collusion with others.

On 28 March 2015 the GPO, relying on Article 6 of the CC, Article 287 of the Code of Criminal Procedure (“CCP”) and Article 38 § 7 of the Jurisdictional Relations Act, opened fresh criminal proceedings against the applicant on suspicion of having committed premeditated murder in collusion with others under Article 78/1 and 25 of the CC. On the same day the prosecutor ’ s office requested to have Parliament ’ s authorisation with a view to ordering the applicant ’ s arrest.

On 2 April 2015 Parliament authorised the applicant ’ s arrest in pursuance of the GPO ’ s request of 28 March 2015.

3. The third set of criminal proceedings against the applicant

On 1 April 2015 the prosecutor ’ s office, relying on a criminal report filed by the High Inspectorate for Declaration and Audit of Assets and Prevention of Conflict of Interest, opened criminal proceedings against the applicant on suspicion of having laundered the proceeds from a criminal offence or activity as well as of having refused to state or having falsely made a statement of his possessions in breach of Articles 287 and 257/a of the CC. On the same date the prosecutor ’ s office decided to join this set of proceedings to the second set of proceedings.

On 2 April 2015, following Parliament ’ s authorisation of the same day (see above), the applicant was detained in connection to the second and third set of criminal proceedings. The arrest warrant referred to a letter of the Tirana Police Directorate, which stated that “the enforcement of the security measure of house arrest cannot be entirely secured on account of the geographical position of the applicant ’ s house, the large surface area of the house, the existence of more than two entry and exit gates, the existence of numerous buildings constructed adjacent to and around the house ( nuk mund të garantohet ekzekutimi i [arrestit në shtëpi] plotësisht, për faktin se pozicioni gjeografik ku ndodhet banesa e të arrestuarit , sipërfaqja e madhe e territorit të banesës, numri më shumë se dy i portave hyrëse dhe dalëse të banesës, rrethimi i banesës me shumë banesa të tjera ngjitur me të, të ndërthurua me njëra-tjetrën ”) .

4. Judicial proceedings concerning the lawfulness of the applicant ’ s detention of 2 April 2015

(a) Proceedings before the Supreme Court

On 2 April 2015 the prosecutor requested the Supreme Court to validate the applicant ’ s detention.

On 3 April 2015 the Supreme Court decided that the applicant ’ s detention was lawful. Since he was charged with offences providing for no less than two years ’ imprisonment, his detention was in compliance with Article 253 of the CCP. There were reasonable grounds to believe that there was a risk of flight on account of the offences with which he was charged. The applicant was an MP, he had financial means and there was a risk that he might tamper with the collection of evidence or that he might abscond from justice.

The Supreme Court further stated that the security measure of “detention ( arrest )” should be imposed in accordance with Article 228-230 of the CCP and this entailed the fulfilment of three conditions: first, that there was a reasonable suspicion, grounded on evidence, that the accused had committed a crime; second, that the facts attributed to the accused constituted a criminal offence, which had not become time-barred, as provided for by the criminal law; and, third, that the accused was criminally responsible for the alleged criminal offence. In its view, all three conditions were cumulatively fulfilled in the applicant ’ s case. The applicant ’ s detention further corresponded to the criteria laid down in Article 229 of the CCP and would also be justified by the need to prevent any interference from the applicant, because of his public office, in the administration of justice as well as the need to prevent the occurrence of further consequences resulting from the offence.

In his dissenting opinion, judge A.B stated that a risk of flight should not rest on assumptions, hypotheses, suppositions or second guesses. The fact that the police could not secure the applicant ’ s house arrest should not be held against him. The prosecutor had not discharged the burden of proof that the applicant intended or attempted to flee. The case file did not contain evidence of any risk of flight.

(b) Proceedings before the Constitutional Court

On 26 May 2015 the applicant appealed to the Constitutional Court. He complained that the prosecutor should have first sought Parliament ’ s authorisation to institute a criminal investigation against him before seeking authorisation for his arrest. Further, no authorisation for his arrest was given by Parliament in relation to the charges under Articles 287 and 257/ a of the CC. The criminal proceedings opened against him in relation to the alleged crime having occurred in Belgium were in breach of the European Convention on the Transfer of Proceedings in Criminal Matters, because the Belgian authorities had not requested the Albanian authorities to take any proceedings against the applicant.

On 6 July 2015 the Constitutional Court, composed as a bench of three judges, dismissed the applicant ’ s appeal. It reasoned that Article 73 § 2 of the Constitution, as amended in 2012, required Parliament ’ s authorisation for, amongst others, the arrest of an MP, Parliament ’ s authorisation for the institution of a criminal investigation having been repealed. The security measures imposed on the applicant by the Supreme Court were in response to all criminal proceedings opened against the applicant, including the charges under Articles 257/a and 287 of the CC.

5. Criminal proceedings against the applicant in Belgium

On 19 February 2015 the Belgian Assize Court of Brabant Wallon decided to re-open the criminal proceedings against the applicant and scheduled a hearing on 19 October 2015.

On 15 July 2015 the Albanian GPO decided that they were not competent to examine a request by the applicant to attend the hearing of 19 October 2015 in Belgium.

On 4 September 2015 the Assize Court of Brabant Walllon adjourned the proceedings sine die .

B. Relevant domestic law

1. Criminal offences charged against the applicant

Article 78 of the Criminal Code (“CC”) provides for the offence of premeditated murder, which is punishable by between 15 and 25 years ’ imprisonment.

Article 257/a of the CC makes provision for the offence of refusing to state, failing to state, concealment and false statement of properties, private interest by elected persons, public officials or any other person who is under a legal obligation to make such statement. The offence is punishable by a fine or by up to three years ’ imprisonment.

Article 287 of the CC makes provision for the offence of laundering of the proceeds from a criminal offence or activity, which is punishable by between five and ten years ’ imprisonment.

Article 305 of the CC provides that false reporting of a crime is punishable by a fine or by up to five years ’ imprisonment. Article 305/ a of the CC provides that the offence of false statements made before a prosecutor is punishable by a fine or by up to one year ’ s imprisonment. Article 312/a of the CC provides that threatening a person to obtain, inter alia , false statements, testimony, translation or expert ’ s report is punishable by between one and four year ’ s imprisonment.

2. The arrest of a Member of Parliament

Article 73 § 2 of the Constitution, as amended, provides that Parliament ’ s authorisation is required, amongst others, prior to ordering an MP ’ s arrest or his deprivation of liberty. Article 141 of the Constitution states that the Supreme Court has initial/original jurisdiction when examining criminal charges against, amongst others, an MP. Article 28 § 2 of the Constitution states that any person who has been deprived of liberty should be taken, within forty-eight hours, to a judge who decides on the lawfulness of his arrest or detention.

Article 289 § 1 of the Code of Criminal Procedure (“CCP”) states that no actions or measures whatsoever may be taken until authorisation is given.

3. Personal security measures

Under Article 228 § 1 of the CCP a personal security measure ( mas ë sigurimi personal ) may be imposed if, on the basis of evidence, there exists a reasonable suspicion that the accused has commi tted a crime. Under Article 228 § 2 of the CCP no security measures may be imposed when there are grounds of exculpation or when the criminal offence ceases to exist. Under Article 228 § 3 of the CCP, security measures are imposed when: (a) there are important reasons which would put into danger the collection or veracity of evidence; (b) the accused has absconded or there is a risk of flight; (c) there is a danger that the accused, owing to factual circumstances or his personality, may commit serious crimes or other similar offences to the one with which he or she has been charged.

Under Article 229 § 1 of the CCP, in ordering a security measure, the court considers its appropriateness and the degree of security to be taken in a case. In accordance with Article 229 § 2 of the CCP, the court should also consider the severity of the offence, the penalty envisaged for it, continuity, recidivism as well as attenuating or aggravating circumstances.

Under Article 232 of the CCP, the court may order, amongst others, house arrest or detention of the suspect in a pre-trial detention facility as security measures.

Article 230 § 1 of the CCP states that the placement in a detention facility may be ordered, if no other security measure is appropriate owing to the particular danger posed by the offence and the accused.

Article 253 § 1 of the CCP provides that when there are reasonable grounds to believe that there is a risk of flight, the prosecutor orders the detention of the person suspected of having committed a crime, which is punishable by a prison term of not less than two years.

The prosecutor seeks the validation of the lawfulness of a suspect ’ s arrest or detention in accordance with Article 25 8 of the CCP. Under Article 259 § 1 of the CCP, the hearing for the validation of the lawfulness of the detention should take place in the presence of the prosecutor and the suspect ’ s lawyer. The court hears both parties and examines the evidence submitted to it (Article 259 § 2 of the CCP). If the court deems the detention to be lawful, it validates it. The court ’ s decision is amenable to appeal to a higher court (Article 259 § 3 of the CCP).

C. Relevant international law

The European Convention on the Transfer of Proceedings in Criminal Matters (“the Transfer Convention”) entered into force in respect of Albania on 5 July 2000. Under this Convention any Party may request another Party to take proceedings against a suspected person in its stead (Article 6). Such a request may be made: if the suspected person is normally resident in the requested State or he/she is a national of that State; if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested State; if proceedings for the same or other offences are being taken against the suspected person in the requested State (Article 8). Proceedings may not be taken in the requested State unless the offence in respect of which the proceedings are requested would be an offence if committed in its territory and when, under these circumstances, the offender would be liable to sanction under its own law also (Article 7).

Article 6 of the CC reads that Albanian criminal law applies to an Albanian national who has committed an offence in the territory of another country, provided that the offence is punishable and that no final decision has been given by a foreign court.

In accordance with the Jurisdiction Relations Act (law no. 10193 dated 3 December 2009), an IAW is transmitted by Interpol Tirana to the Ministry of Justice, which forwards it to the GPO (section 38 §§ 1-3). Should the GPO not proceed with the detention of the suspect and the extradition procedure, it makes an entry in the register of notification of criminal offences the information contained in the IAW with a view to instituting criminal proceedings. This decision is notified to the Ministry of Justice (section 38 § 7).

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention in relation to the third set of the criminal proceedings was unlawful.

QUESTIONS TO THE PARTIES

1. Was authorisation by Parliament required in relation to the charges under Articles 257/ a and 287 of the Criminal Code?

2. Did the General Prosecutor ’ s Office (“GPO”) request Parliament ’ s authorisation?

3. Was authorisation given by Parliament?

4. Has there been a breach of Article 5 § 1 (c) of the Convention in relation to those charges?