FOURTH SECTION

Application no. 6858/11 Mihal DELIJORGJI against Albania lodged on 4 January 2011

STATEMENT OF FACTS

The applicant, Mr Mihal Delijorgji , is an Albanian national, who was born in 1966 and lives in Albania. He is represented before the Court by Mr M. Haxhia and Ms E. Kokona , lawyers practising in Tirana.

A. Criminal proceedings against the applicant

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

On 15 March 2008 a massive explosion occurred at an arms depot in Gërdec , a village around thirty kilometres from Tirana (“the incident”). The explosion claimed more than two dozen lives and seriously damaged a number of nearby buildings.

The arms depot was the site of munitions-disposal work by a private commercial company, Albdemil sh.p.k . The applicant was the administrator of that company.

Following the incident, the prosecutor started criminal proceedings against the applicant and 28 other persons.

On 12 March 2012, in a lengthy decision, the Tirana District Court found the applicant guilty of a “breach of the rules on explosive, flammable or radioactive substances” – contrary to Article 282 of the Criminal Code and sentenced him to 10 years ’ imprisonment. All parties appealed.

On 13 February 2013 the Tirana Court of Appeal upheld the decision. H owever, it reduced the applicant ’ s sentence by one third on account of the use of the summary procedure.

On 11 March 2013 the applicant appealed to the Supreme Court. His appeal remains pending before that court.

It would appear that on 18 March 2013 the applicant, having served the remainder of his sentence, was released from prison.

B. The applicant ’ s detention and requests for release

On 15 March 2008 the applicant was detained on remand on a charge of a “breach of the rules on explosive, flammable or radioactive substances” contrary to Article 282 of the Criminal Code.

On 17 March 2008 the lawfulness of his detention on remand was confirmed by the District Court. No time-limits were imposed on the length of the applicant ’ s detention.

On 13 March 2009 the Supreme Court was asked to examine the case as a first-instance court, since one of the co-accused was a Member of Parliament (MP) and a Cabinet Minister. After the Supreme Court decided to disjoin the proceedings against the MP and the Cabinet Minister, on 11 June 2009 the case file against the remaining co-accused, including the applicant, was registered with the Tirana District Court (“the District Court”) for examination.

1. First request for release

On 19 July 2010 the applicant requested his release on the expiry of the time-limits laid down by Articles 262 and 263 § 2 (c) of the Code of Criminal Procedure (“CCP”), arguing that the prescribed time-limit started to run from 14 March 2009, the date on which the case was sent for examination to the Supreme Court.

On 23 July 2010 the Tirana District Court, in an interlocutory decision, rejected the request. It argued that, since the time-limit had started to run from 11 June 2009, the date on which the case file was registered at its registry and, since it had been stayed or prolonged on account of other interlocutory decisions which had not been appealed, the time-limit had not yet expired.

On 6 August 2010 the Court of Appeal upheld the decision.

On 3 November 2010 the Supreme Court quashed both decisions. It reasoned that Article 263 of the CCP provided for three time-limits: the first runs from the date of an accused ’ s arrest to the date the file is transfer red to the trial court (Article 263 § 1 of the CCP); the second runs from the n to the date of delivery of the decision by that court (Article 263 § 2 of the CCP); and the third runs from the n to the date of delivery of the appellate court ’ s decision (Article 263 § 3 of the CCP). In the applicant ’ s case, the first time-limit stopped to run on 13 March 2009 when the case was sent to the Supreme Court (Article 263 § 1 of the CCP). On that date , the second time-limit before the trial court began to run (Article 263 § 2 of the CCP), since the Supreme Court heard the case as a first-instance court , because one of the co-accused was an MP and a Cabinet Minister. Even though the proceedings against the MP were disjoined from those against the applicant and other co-accused, the period between 13 March 2009 and 11 June 2009, the date on which the case file against the applicant was registered with the District Court, should be taken into account for the purposes of the time-limit prescribed by Article 263 § 2 of the CCP. The Supreme Court indicated that the time-limit for which Article 265 of the CPP provided should be deducted from the running of the time-limit prescribed by Article 263, even if the stay was attributed to one of the co-accused or his lawyer. For the above reasons, the Supreme Court remitted the case for re-hearing by a different bench.

(a) The f irst re-hearing

On 25 November 2010 the applicant ’ s lawyer, relying on the Supreme Court ’ s decision of 3 November 2010, requested, in writing, the applicant ’ s release. He argued that his lawful pre -trial detention period had exceeded by 81 days.

On 26 November 2010 the District Court rejected the request arguing that it had not been submitted in writing in accordance with the law. The applicant appealed.

On 17 December 2010 the Court of Appeal quashed the decision and remitted the case for a re-hearing by a different bench. It found that the District Court had failed to carry out any of the tasks delegated by the Supreme Court ’ s decision of 3 November 2010. The applicant appealed on the ground that the Court of Appeal should have examined the case itself instead of delaying the proceedings.

On 27 January 2011 the Supreme Court rejected the appeal.

(b) The s econd re-hearing

On 7 February 2011 the applicant ’ s lawyer requested the applicant ’ s release on the ground that the time-limits laid down by Articles 262 and 263 § 2 (c) of the CCP had expired.

On the same day, in an interlocutory decision, the District Court ordered the applicant ’ s immediate release and his placement under house arrest in accordance with Article 266 § 1 of the CCP. The District Court relied on a Supreme Court decision of 2 February 2011 which had ordered the release of another co-accused who had been detained on the same day as the applicant , because the pre-trial detention time-limits , laid down in Article 263 § 2 (c) , had expired. It accepted that the time-limit had started to run from 13 March 2009 and had exceeded the twelve-month period prescribed by law. The decision did not indicate the expiry date of the time-limit. The prosecutors appealed.

It would appear that the applicant was immediately placed under house arrest.

On 11 March 2011 the Court of Appeal upheld the District Court ’ s decision. The prosecutors appealed.

On 9 May 2011 the Supreme Court upheld the lower courts ’ decision.

2. Second request for release

On 24 November 2010 the District Court rejected a co-accused ’ s request for release on the ground that the time-limit for his pre-trial detention had expired. The District Court argued that the time-limit had started to run from 11 June 2009. It further held that the Supreme Court ’ s decision of 3 November 2010 was not binding on that bench, since it was not re-hearing the case. The applicant ’ s lawyer left the court room in protest of this court ’ s decision.

On 6 December 2010 the applicant ’ s lawyer lodged a second request for the applicant ’ s release on the ground that the time-limits laid down by Articles 262 and 263 § 2 (c) of the CCP had expired.

On the same day the District Court, in an interlocutory decision, rejected the request. It argued that the time-limit had started to run from 11 June 2009, the date on which the case file was registered with it. It had been stayed for a period of 8 months and 12 days. Consequently, there remained 2 months and 18 days of pre-trial detention until the expiry of the twelve-month time-limit as provided for by Article 263 § 2 (c). As regards the findings of the Supreme Court on 3 November 2010, the District Court stated that they were binding on the bench re-hearing the case and not on a court hearing a separate request for release .

B. Relevant domestic law

1. Code of Criminal Procedure

Article 75/b provides that the Supreme Court hears as a first-instance court cases concerning criminal offences committed by, inter alia , a Member of Parliament and a Cabinet Minister.

Article 262 § 1 stipulates that at the expiry of the detention, the court orders the immediate release of the person who was subjected to it.

Article 263 § 2 read as follows:

“2. Pre -trial detention ends if, from the date of the registration of the case with the [first-instance] court, the following time-limit expires without a decision being taken by the [first-instance] court:

c) twelve months when criminal proceedings relate to offences which are liable to a punishment of between 10 years ’ and life imprisonment.”

Article 265 provides for the stay of the running of pre-trial detention time-limits by court decision, which is appealable.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his continued detention from 20 July 2010 or, alternatively, from 14 August or 7 October 2010 was not in accordance with the law. Under Article 5 § 4 of the Convention he complains that the lawfulness of his continued detention was not dealt with speedily.

QUESTIONS TO THE PARTIES

1 . Has there been a breach of Article 5 § 1 of the Convention? In particular:

(a) Was the applicant ’ s continued detention lawful within the meaning of Article 5 § 1 of the Convention?

(b) Having regard to the provision s in Article 263 § 2 of the Code of Criminal Procedure, when did the time-limit prescribed therein expire in the applicant ’ s case?

(c) Was the applicant ’ s continued detention arbitrary?

2 . Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention, comply with the “speed ily ” requirement of Article 5 § 4 of the Convention?

3 . Did the applicant have an effective compensatory remedy in respect of his complaint under Article 5 § 4 of the Convention (see, for example, Knebl v. the Czech Republic , no. 20157/05, 28 October 2010)?