Published on 20 December 2021

THIRD SECTION

Application no. 52610/19 Gerd GJINARARI against Albania lodged on 9 October 2019 communicated on 30 November 2021

STATEMENT OF FACTS

1. The applicant, Mr Gerd Gjinarari, is an Albanian national, who was born in 1974 and is serving a prison sentence in Albania. He is represented before the Court by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome, Italy.

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

3. In 1997 Italian courts found the applicant guilty of forgery of documents and sentenced him to one year and six months’ imprisonment and a fine. By another separate decision given in 1999, which became final on 30 January 2002, the Italian courts found the applicant guilty of other offences, such as premeditated murder in aggravating circumstances, possession of firearms, production and sale of narcotic drugs and commission of crimes by an armed group, and sentenced him to life imprisonment. On 20 January 2003 the Italian prosecutor’s office combined the applicant’s sentences and ordered a whole life sentence ( e scade mai ), the starting point having been on 13 February 1998.

4. On 10 March 2014 the Tirana District Court accepted a request by the prosecutor for the recognition of the Italian courts’ decisions convicting the applicant and imposing on him a life sentence. It appears that the decision became final on 10 June 2016. In the meantime, in reliance on the Tirana District Court’s decision, on 24 November 2014 the applicant was transferred to Albania to serve the life sentence.

5. On 23 July 2018 the applicant filed a request for release on parole under Articles 64 and 65 of the Criminal Code claiming, amongst other things, that he had shown exemplary behaviour in prison, as attested by the prison authorities, and had served more than 25 years’ imprisonment. He argued that his request should be examined in light of criminal law provisions which existed prior to the entry into force of certain amendments to those provisions in 2017.

6. On 14 February 2019 a single-judge bench of the Korça District Court delivered a 69-page decision. It found that the applicant was not prevented by the application of Article 65 § 3 of the Criminal Code (see paragraph 16 below) from making a request for release on parole, since, at the time of the recognition of his conviction by the Albanian courts, he had not been sentenced under Article 78/a of the Criminal Code. It further held that the applicant was eligible to apply for release on parole, as he had served at least twenty-five years’ imprisonment, in accordance with Article 65 as in force at the time of the imposition of the sentence. The statutory amendments to that Article in 2017 were to his disadvantage and not foreseeable in the applicant’s case.

7. The court relied on a positive report which had been drawn up by the director of the prison where the applicant was serving his sentence, as well as on another positive report produced by the probation service, in accordance with the Supreme Court’s unifying decision no. 2/2015 (see paragraph 20 below). Having heard the applicant and a family member of the victims, and having further considered the educational programmes that the applicant had attended while serving his sentence in Italy, the court held that the applicant had satisfactorily demonstrated that he was capable of reintegrating into society.

8. As regards the existence of “exceptional circumstances” which were required by Article 65 of the Criminal Code, the court stated that domestic case-law did not provide any guidance as how best to construe that phrase. In the court’s view, a request by a life prisoner for release on parole was to be accepted on rare occasions and upon the court identifying exceptional reasons justifying such an acceptance. The court considered that the applicant had displayed “an extraordinary and conscious commitment... to reintegrate into society ( ky i dënuar paraqet anagazhim të jashtëzakonshëm dhe koshient )”. He had followed the extraordinary path of pursuing a course in psychology in order to gain a better understanding of himself. The pursuit of higher education studies during his imprisonment in Italy was indicative of the extraordinary efforts he had made, in an attempt to reform and introduce himself as an individual with human values which did not have any links to the individual who had committed the crime. He had observed the prison rules and his exemplary behaviour showed that he had made all efforts to achieve rehabilitation. He had established contacts with the victims’ families and expressed his sincere remorse for the unlawful actions, which was an extraordinary commitment on his part.

9. The court concluded that the applicant satisfied the requirements laid down in Articles 64 and 65 of the Criminal Code and accepted his request for release on parole, subject to a number of conditions.

10. The prosecutor appealed against the decision contending that the Korça District Court had made an erroneous interpretation of domestic law and evidence in the case file.

11. On 26 June 2019 the Korça Court of Appeal quashed the decision. It reasoned, amongst other things, that, having regard to the commission of a number of wilful criminal offences and the applicant’s conviction, he was to be considered a recidivist which constituted a legal obstacle to the application of Article 64 of the Criminal Code. Making an assessment of the evidence in the case file, the Court of Appeal found that there were no “special reasons”, as provided for in Article 64 of the Criminal Code, in favour of the applicant’s release on parole. In addition, the prison authorities had not set up an individual plan for the applicant’s rehabilitation and reintegration into society and, contrary to the findings made by the Korça District Court, there was little information in the case file in support of such a finding. Also, the case file did not contain any information regarding the applicant’s period of imprisonment in Italy, whereas he had been serving his sentence in Albania for four years. As regards the interpretation of Article 65 of the Criminal Code, the Court of Appeal held that there were no “exceptional circumstances”, which, in any event, required the satisfaction of more stringent conditions than those needed for the existence of “special reasons” provided for in Article 64 of the Criminal Code.

12. The applicant claims that on 6 August 2019 he lodged a cassation appeal, which is still pending before the Supreme Court. He complained, amongst other things, that the Court of Appeal had made a wrong assessment of evidence and an erroneous interpretation of domestic law by considering him a recidivist. Also, the Court of Appeal had retroactively applied section 65 of the Criminal Code, as amended in 2017, which required the serving of thirty-five years’ imprisonment for life prisoners before applying for release on parole.

(a) Article 64

13. On 13 March 2001 certain amendments to Article 64 of the Criminal Code entered into force by means of law no. 8733/2001, according to which it read as follows:

Article 64 – Release on parole

“A prisoner may be released on parole only for special reasons, provided that his or her conduct and work demonstrate that the sentence has achieved the purpose towards his or her education ( nëse me sjelljen dhe punën e tij tregon se me dënimin e vuajtur i është arritur qëllimit për edukimin e tij ), and he or she has served:

- no less than half of the sentence imposed in respect of criminal misdemeanours ( kundërvajtje penale );

- no less than two-thirds of the sentence imposed in respect of crimes punishable by up to five years’ imprisonment;

- no less than three-fourths of the sentence imposed in respect of crimes punishable by five to twenty-five years’ imprisonment.

Remission of the sentence by means of an amnesty or pardon shall not be taken into account in calculating the overall sentence served.

The court may revoke the release on parole of a prisoner convicted of wilful criminal offences if, during the parole time, he or she re-offends by committing another wilful offence which is as serious as, or more serious than, the first offence, and [in so doing, the court] shall apply the provisions regarding the imposition of a combined sentence.”

14. On 4 June 2013 other amendments to the third paragraph of Article 64 of the Criminal Code entered into force by means of law no. 144/2013. As of 20 May 2017, following the entry into force of further amendments to Article 64 of the Criminal Code (law no. 36/2017), it reads as follows (the amendments having been underlined below):

Article 64 – Release on parole

“A prisoner may be released on parole, only for special reasons, provided that his or her conduct and work demonstrate that the sentence has achieved the purpose towards his or her education, and he or she has served:

- no less than half of the sentence imposed in respect of criminal misdemeanours;

- no less than two-thirds of the sentence imposed in respect of crimes punishable by up to five years’ imprisonment;

- no less than three-fourths of the sentence imposed in respect of crimes punishable by more than 5 years’ imprisonment as prescribed by law, save for the provision of paragraph 3 [below] .

Remission of the sentence by means of an amnesty or pardon shall not be taken into account in calculating the overall sentence served.

Release on parole of a re-offender convicted of wilful criminal offences and of a prisoner convicted of offences envisaged by Articles 78/a, 79/a, 79/b, 79/c or 100(3) [of the Criminal Code] shall not be permitted .”

(b) Article 65

15 . Between 15 January 2009 and 19 May 2017, Article 65 of the Criminal Code read as follows:

Article 65

“1. Release on parole shall not be permitted for a life prisoner.

2. A life prisoner may, in exceptional circumstances, be released on parole if he or she has served no less than twenty-five years’ imprisonment, he or she has displayed exemplary conduct during imprisonment and it is considered that the purpose of his or her sentence towards education has been achieved ( dhe çmohet se i është arritur qëllimit të dënimit për edukimin e tij ).”

16 . As of 20 May 2017, following the entry into force of certain amendments to Article 65 of the Criminal Code, it reads as follows (the amendments having been underlined below):

Article 65

“1. Release on parole shall not be permitted for a life prisoner.

2. A life prisoner may, in exceptional circumstances, be released on parole if he or she has served no less than thirty-five years’ imprisonment, he or she has displayed exemplary conduct during imprisonment and it is considered that the purpose of his or her sentence towards education has been achieved.”

3. Prisoners convicted of offences envisaged by Articles 78/a, 79/a, 79/b, 79/c and 100 § 3 [of the Criminal Code] shall be excluded from [the application of paragraph 2] .”

17. Section 31/6 of the Execution of Criminal Decisions Act states that a prisoner has the right to make a request for release on parole to the court responsible for the execution of sentences. Upon filing the request, the director of the prison will provide the court responsible for the execution of sentences with a copy of the prisoner’s personal file, containing information about the nature of the criminal offence committed, the prisoner’s stance on the criminal offence and the victim or the victim’s relatives, any prior criminal offences committed by the prisoner, the physical and psychological state of the prisoner as well as his behaviour in prison. Also, the probation service will furnish a report, containing information about the prisoner’s social and family background as well as concrete plans enabling his reintegration into society upon release, to the court responsible for the execution of sentences. A single-judge bench, which is different from the bench that convicted and sentenced the prisoner, will examine the request for release on parole in view of the reports made available to the court responsible for the execution of sentences.

(a) Constitutional Court’s decisions

18. In decision no. 35 of 20 December 2005 the Constitutional Court held that criminal law did not apply retroactively. The exception to that general principle related to the retrospectivity of a more favourable criminal law, which was to apply in so far as no final court decision had been given in respect of a case. The principle of retrospectivity of a more favourable criminal law was also re-affirmed in the Constitutional Court’s decision no. 14 of 17 April 2007.

19. In response to a referral request made by a lower court regarding the constitutionality of a criminal law provision, which is unrelated to the circumstances of the present case, in decision no. 19 of 1 June 2011 the Constitutional Court described the purposes of a criminal sanction, as follows:

“A sentence serves two different purposes, which may be considered educational in nature. On one hand, it serves the purpose of general prevention of committing other criminal offences. [T]he threat that the [authorities] will impose criminal sanctions each time a [person] commits a punishable offence serves the purpose of dissuading and preventing that person from carrying out any actions which would be in breach of criminal law provisions. On the other hand, it serves the purpose of special prevention which is directly linked to the perpetrator of the offence. [T]he imposition of a criminal sanction aims at re-educating the perpetrator so that, upon release, he or she will not carry out any future criminal actions.”

(b) Supreme Court’s unifying decision

20 . On 25 May 2015 the Supreme Court Joint Benches gave a unifying decision in relation to the interpretation of the phrase “special reasons”, as provided for in Article 64 of the Criminal Code. The Supreme Court stated that Article 64 of the Criminal Code was to be interpreted in accordance with the purpose envisaged by the legislator, which was the re-education and reintegration of a prisoner into society. It confirmed that “special reasons” did not concern extraneous elements or factors pertaining to the prisoner’s work and conduct but related to the re-education and reintegration of the prisoner into society. The legislator had not laid down a detailed list of “special reasons” which had to be assessed by lower courts in view of the circumstances of an individual case. In determining the existence of “special reasons”, the Supreme Court listed the following elements which had to be considered by the lower courts: the nature of the criminal offence which the prisoner had committed, the attitude of the prisoner towards the criminal offence and the victim or the victim’s relatives, prior criminal offences which may have been committed by the prisoner and his physical and psychological state. In addition, the lower courts had to benefit from a report to be drawn up by prison authorities describing the nature of the prisoner’s conduct in prison, as well as a report to be produced by the probation service outlining the prisoner’s family conditions and social status as well as concrete plans enabling the prisoner’s reintegration into society upon release.

21. The applicant complains of a breach of Article 3 of the Convention about the alleged irreducibility of the life sentence imposed on him

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in relation to the Convention rights on which he now wishes to rely before the Court (see Questions nos. 2-4 below)? In particular:

(a) Is the Supreme Court an effective remedy to be exhausted (see, for example, Story and Others v. Malta , nos. 56854/13 and 2 others, § 80, 29 October 2015, and the references cited therein)? If so, when will the Supreme Court examine the applicant’s cassation appeal?

(b) Having regard to section 71 of the Constitutional Court Act (Law no. 8577 of 10 February 2000, as amended), is the Constitutional Court an effective remedy to be exhausted in theory as well as in practice?

2. Has there been a breach of Article 3 of the Convention? In particular:

(a) Does the domestic law provide for a system of review of life sentences so that the authorities could consider the prospect of the release of a life prisoner (see, amongst other authorities, Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts), and Murray v. the Netherlands [GC], no. 10511/10, 26 April 2016)? If so:

(i) Does the system lay down clear conditions for the review of life sentences by the national authorities? In particular, what is the domestic case-law regarding the interpretation and application of “exceptional circumstances”, as provided for in Article 65 § 2 of the Criminal Code?

(ii) When does the system provide for the initial review of the imposition of a life sentence? Is this compatible with the Convention requirements (see Vinter and Others, cited above, § 120; Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 246, ECHR 2014 (extracts); and Murray, cited above, §§ 99-100)?

(iii) When does the system guarantee further periodic reviews of a life sentence?

(b) Can the applicant’s life sentence be regarded as reducible de iure or de facto for the purposes of Article 3 of the Convention (see, for example, László Magyar v. Hungary , no. 73593/10, §§ 49-50, 20 May 2014, and T.P. and A.T. v. Hungary , nos. 37871/14 and 73986/14, §§ 45-50, 4 October 2016)?

(c) Does recidivism entailing wilful criminal offences, as laid down in Article 64 of the Criminal Code, constitute a bar to release on parole for life prisoners?

(d) The Government are invited to provide statistical figures regarding the number of life prisoners who have benefited from the existence and application of the system of review of life sentences.