Published on 5 December 2022

THIRD SECTION

Application no. 68393/17 David GJOKEJA against Albania lodged on 12 September 2017 communicated on 17 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s trial and conviction in absentia for murder in 2006. In the trial proceedings, in which he was sentenced to life imprisonment, the applicant was represented by a lawyer appointed by his family. In 2016, the applicant was arrested while crossing the Albanian border from Greece and was made aware of his conviction.

In 2017, while his request for leave to appeal out of time was still pending before the Supreme Court, the applicant lodged a complaint with the Constitutional Court regarding his trial in absentia . He relied on that court’s previous case-law which had allowed for such a constitutional complaint in a similar setting. The Constitutional Court dismissed the complaint, reasoning that the applicant did not exhaust domestic remedies in that his request for leave to appeal out of time was still pending before the Supreme Court, thus not meeting the legal requirements and criteria for its assessment by the Constitutional Court.

The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention about his trial and conviction in absentia .

QUESTIONS TO THE PARTIES

1. Did the applicant exhaust all effective domestic remedies, as required under Article 35 § 1 of the Convention, as regards his complaint under Article 6 § 1 of the Convention ( Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014)?

(a) In particular, was the request for leave to appeal out of time under Article 147 of the Code of Criminal Procedure (CCP) an effective remedy for the applicant tried in absentia ? In this respect, did the applicant have to exhaust a request to appeal out of time to the Supreme Court before lodging a constitutional complaint with the Constitutional Court?

(b) With respect to the same legal question, did the Constitutional Court have an established jurisprudence at the relevant time? In particular, was that court’s decision in the applicant’s case consistent with Constitutional Court decision no. 31, dated 25 May 2015, as relied upon by the applicant?

(c) Was the request for review of a court decision under Article 450 CCP at the relevant time an effective remedy for the applicant tried in absentia, which he was required to exhaust?

The parties are invited to submit domestic case-law examples related to these questions. The parties are also invited to provide the Court with updated information and copies of any relevant documents concerning the state of proceedings in the applicant’s case, notably those lodged before the Supreme Court.

2. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 of the Convention, given that he was tried and convicted in absentia (compare, inter alia , Sejdovic v. Italy [GC], no. 56581/00, §§ 81 et seq. , ECHR 2006 ‑ II; Shkalla v. Albania , no. 26866/05, §§ 66 et seq. , 10 May 2011; and Topi v. Albania , no. 14816/08, §§ 53 et seq. , 22 May 2018)?

(a) In particular, was the applicant sufficiently aware of the proceedings against him and did he unequivocally waive his right to appear at trial and defend himself?

(b) Did the applicant have the opportunity to obtain, after his conviction in absentia , a fresh determination of the merits of the charges against him, in respect of both law and fact?