SECOND SECTION
 
 
 
 
 
 
 
CASE OF TOPI v. ALBANIA
 
(Application no. 14816/08)
 
 
 
 
 
JUDGMENT
 
 
 
 
 
STRASBOURG
 
 
22 May 2018
 
 
FINAL
 
22/08/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Topi v. Albania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Robert Spano, President,
 Paul Lemmens,
 Ledi Bianku,
 Işıl Karakaş,
 Nebojša Vučinić,
 Jon Fridrik Kjølbro,
 Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 17 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 14816/08) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Arben Topi (“the applicant”), on 14 February 2008. 2. The applicant was represented by Mr A. Kasapi, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s office. 3. The applicant alleged that he had been denied access to the Constitutional Court and that his trial in absentia had breached Article 6 of the Convention. 4. On 26 June 2012 the application was communicated to the Government. 5. The Government implicitly objected to the examination of the case by a Committee (Article 28 § 1 (b)), arguing that it included issues that were not the subject of the Court’s well-established case-law. The Court accepts that objection. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in Peqin in 1977. He is currently serving a prison sentence. 7. In 1998 the applicant was implicated in the commission of the criminal offence of setting up and being a member of an armed gang and of other criminal offences. 8. On 4 February 1999 the prosecutor charged him with the offences of membership of an armed gang, attempted intentional murder and other crimes. The notification of the prosecutor’s charges was acknowledged by the applicant’s officially appointed lawyer. 9. It appears that throughout the investigation proceedings the applicant was represented by an officially appointed lawyer. 10. On 12 February 1999 the Elbasan District Court ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be traced. 11. On 19 February 1999 the Elbasan District Court declared the applicant a fugitive from justice after unsuccessful attempts to locate him. The decision stated that it was impossible to find him as it appeared that he had escaped to an unknown destination (këto kërkime nuk kanë bërë të mundur kapjen e të pandehurit pasi ai rezulton të ketë ikur në drejtim të paditur). 12. On an unspecified date the prosecutor decided to commit the applicant for trial. 13. On 28 May 1999 the Supreme Court transferred the case for examination to the Durrës District Court. 14. On 2 June 1999 the applicant’s father appointed a lawyer to represent the applicant before the domestic courts. 15. The trial proceedings against the applicant were conducted in absentia and he was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 16. On 15 February 2000 the Durrës District Court convicted the applicant in absentia of establishing and participating in an armed gang and attempted intentional murder. He was sentenced to fifteen years’ imprisonment. The decision was based on evidence from documents and witness testimony. 17. The applicant’s family-appointed lawyer and the other co-accused appealed against the conviction to the Durrës Court of Appeal (“the Court of Appeal”). On 19 April 2000 the Court of Appeal declined to examine the applicant’s appeal on the grounds that the applicant’s family had not given any express authority to the lawyer for such a procedure. However, the Court of Appeal examined the applicant’s case as part of its overall examination, having regard to the appeals of the other defendants. It convicted the applicant of the same offences as before and sentenced him to thirteen years’ imprisonment. 18. On 7 December 2000 the Supreme Court dismissed appeals by the applicant and other co-accused against the Court of Appeal’s decision of 19 April 2000. 19. On 16 September 2005 the applicant was arrested by the Czech authorities on the basis of an arrest warrant issued by Albania. 20. On 25 January 2006 the applicant was extradited to Albania. 21. On 1 March 2006 the applicant was officially informed of his conviction in absentia. 22. On 13 September 2007 the applicant lodged a constitutional appeal against the conviction in absentia. 23. On 24 October 2007 the Constitutional Court, sitting in camera, declared the appeal time-barred as the two-year time-limit had started to run on 7 December 2000. The Constitutional Court’s reasoning stated that throughout the proceedings the applicant had been represented by a court‑appointed lawyer or a family-appointed lawyer and that accordingly he had had the opportunity to become acquainted with the proceedings brought against him. II. RELEVANT DOMESTIC LAW AND PRACTICE
24. The relevant domestic law and practice at the material time have been described in detail in the judgments of Shkalla v. Albania (no. 26866/05, §§ 28-35, 10 May 2011), and Izet Haxhia v. Albania, (no. 34783/06, §§ 19-42, 5 November 2013). 25. On 30 March 2017 the Code of Criminal Procedure (“the CCP”) was amended by Law no. 35/2017 and the new provisions entered into force on 1 August 2017. The relevant new provisions applicable to the present case read as follows:
Article 147 – Leave to appeal out of time (rivendosja në afat) (as amended in 2017)
“1. The prosecutor, the defendant, the victim or accusing victim, and the private parties are allowed to have the time-limit reset if they establish that they were unable to comply with the time-limit owing to unforeseen events or force majeure. 2. Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceedings. 3. An application for the resetting of the time-limit for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure. The application shall be examined by the authority seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj). 4. An appeal against a refusal to grant leave to appeal out of time may be lodged with the court within five days ...”.

Outcome for Article 6: violation