JOINT CONCURRING OPINION OF JUDGES DEDOV AND RAVARANI

« A l’impossible nul n’est tenu. »

1. We voted in favour of finding a violation of Article 6 § 1 in the present case as we acknowledge that there have been unacceptable shortcomings in the timely handling of cases brought before the Supreme Court of Albania between 2016 and 2021.

2. We feel obliged, however, to highlight one point on which we have serious reservations about the findings of the judgment. What troubles us is that the periods of time between July 2018 and May 2019, when the Supreme Court had to operate with an extremely reduced number of judges, namely three and eventually four, whereas the number of judges legally provided for was nineteen, and between May 2019 and March 2020, when it was unable to sit as it lacked the necessary quorum, are counted within the overall period taken into account for assessing the length of the proceedings the applicants complained of.

3. The bloodletting the Albanian Supreme Court had to face from 2016 onwards was due mainly, if not exclusively, to the vetting process of the judiciary that had been undertaken that year by Albania, encouraged and supported by Council of Europe bodies and considered compatible with the Convention requirements by the Court (see Xhoxhaj v. Albania , no. 15227/19, 9 February 2021).

4. When called upon to examine the first applicant’s complaint about the length of the proceedings in which he was involved in the context of the newly introduced remedy for the excessive length of judicial proceedings, the Albanian courts argued that the critical period during which the Supreme Court had not been able to operate constituted an “objective element” to be taken into account pursuant to domestic law for the calculation of the length of the proceedings. It is true that their reliance on this argument was far too general and designed to absolve the Supreme Court of any blame for the excessive length of proceedings, but the Court could easily have separated the wheat from the chaff.

5. Instead, the judgment brushes away this argument with a somewhat curious mixture of abstract and concrete elements of reasoning.

6. On the abstract side, the Court “notes that States have a general obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1, including that of a fair hearing within a reasonable time” (see paragraph 70 of the judgment; this statement is reiterated in paragraph 94). We certainly do not disagree with such a statement on a principled and abstract level. However, as in so many areas, one size doesn’t always fit all. In smaller countries, it can often be impossible to find enough qualified persons to occupy high judicial functions within a short period of time. Filling vacant posts with only moderately qualified candidates is obviously not a solution, as such appointments are made for a long term and one should be aware of the fact that a short-term solution can trigger disastrous effects in the longer run.

7. On a concrete level, the judgment finds, regarding the first applicant, that “the case was of importance for the applicant and should have prompted the Supreme Court to examine it with diligence” (see paragraph 72 in fine of the judgment), and, as regards the second applicant, that “owing to the seriousness of the criminal charge against the second applicant and its impact on his rights, the proceedings called for some level of expedition” (see paragraph 96).

8. Here the judgment engages in a kind of micro-management and assesses the relative importance of the two domestic cases to which the respective applicants’ complaints related. In order to be able to perform this exercise properly, the Court needed to have a full picture of the other cases pending and to be able to decide which cases were of lesser importance, so that the priority it asked the domestic courts to grant the two cases in question was really justified in practical terms. The Court, however, was not in possession of such essential information.

9. It would consequently have been preferable for the Chamber to engage in a more balanced assessment, taking into account the concrete difficulties which the judiciary faced and which neither the judiciary itself, nor the State authorities in general could fix at short notice.

10. In other circumstances, the Court has previously shown a much more careful approach to the concrete problems a small country had to face following the introduction of far-reaching judicial reforms (see, for example, P.H. v. Ireland (dec.) [Committee], no. 45046/16, 10 October 2017, where the Court paid tribute to the Irish authorities, which, confronted with a serious backlog and an average time of thirty-four months for completion of an appeal from the High Court to the Supreme Court, had significantly modified the national legal system by creating a new Court of Appeal, and most importantly, took into account those difficulties when assessing the overall length of the proceedings the applicant complained of).

11. As a consequence, without neglecting the shortcomings before the vetting process produced its dramatic effects on the judiciary, the judgment could have gone beyond paying quite modest regard to the difficulties triggered by the vetting process and actually removed the relevant period – instead of assessing it in a consolidated way (see paragraph 65 of the judgment) – from the overall delay which the two applicants had to face.

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth

Application no.

Nationality

Place of residence

1.

Petrit BARA

1953

43391/18

Albanian

TIRANA

2.

Eduard KOLA

1986

17766/19

Albanian

SHKODËR

[1] Retrieved from a press release issued by the Supreme Court on 21 March 2013, as accessible at

http://www.gjykataelarte.gov.al/web/Kryetarja_e_Gjykates_se_Larte_Znj_Shpresa_Becaj ka_mbledhur_diten_e_enjte_trupen_gjyqesore_te_Gjykates_se_Larte_1463_1.php .

[2] Retrieved from a press release issued by the Supreme Court on of 18 February 2015, as accessible at

http://www.gjykataelarte.gov.al/web/NJOFTIM_P_R_MEDIAN_2475_1.php .

[3] European Commission annual progress report on Albania 2016 (SWD(2016) 364), page 60, as accessible at

https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/2016/20161109_report_albania.pdf .