Přehled
Rozhodnutí
THIRD SECTION
DECISION
Application no. 48393/12
Pajtim ABAZI
against Albania
The European Court of Human Rights (Third Section), sitting on 28 February 2023 as a Committee composed of:
Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 48393/12) 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”) on 24 July 2012 by an Albanian national, Mr Pajtim Abazi, who was born in 1978 and is detained in Peqin Prison (“the applicant”), who was represented by Mr J. Dhrami, lawyer practising in Tirana;
the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agent, Ms. A. Hicka, and subsequently by Mr O. Moçka, of the State Advocate’s Office;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicant’s trial in absentia on murder charges, having allegedly not being questioned during trial and on appeal. He alleges that the trial in his absence prevented him from presenting mitigating factors relevant for the classification of the criminal offence with which he was charged and for sentencing him to life imprisonment.
2. The applicant was charged with the criminal offences of murder in other qualifying circumstances of a pregnant woman, illegal possession of firearms and ammunition and disturbing the public peace (as defined respectively under articles 79/b, 278/2 and 274 of the Criminal Code), in connection with the events of 9 March 2007 when his partner was shot dead. He was represented by a lawyer.
3. At the hearing of 6 November 2007, the lawyer appointed by the Fier District Court (“district court”) did not appear. The district court admitted another lawyer, chosen by the applicant.
4. On 20 November 2007 the applicant’s request to conduct a new expert evaluation of his mental state was rejected by the district court, since a previous one had found the applicant fit for trial.
5. The applicant did not appear at the hearing on 16 January 2008 before the district court, but instead submitted a written statement to the effect that he did not wish to participate on account of his health. The district court noted that the defendant had been notified of the date and time of the hearing by summons of 7 January 2008.
6. The applicant did not appear either at the hearing on 24 January 2008, but instead again submitted a written statement that he did not wish to participate in the hearing on account of his health. The district court noted that the applicant had been duly summoned, but deliberately chose not to appear. It also noted that the defendant had stated that he had been diagnosed with mental illness for which he was receiving treatment.
7. At a hearing held in the applicant’s absence on 31 January 2008, the prosecutor and the applicant’s lawyer presented their closing arguments.
8. At a hearing held in the applicant’s absence on 11 February 2008 the district court pronounced its judgment, finding the applicant guilty of murder in other qualifying circumstances of a pregnant woman and of illegal possession of firearms and ammunition and acquitted him of the charges of disturbing the public peace. The applicant was sentenced to life imprisonment.
9. On 27 May 2008 the Vlora Appeal Court, having heard the applicant and his chosen lawyer, upheld the district court judgment.
10. On 6 October 2011 the Supreme Court dismissed the applicant’s appeal on points of law.
11. On 1 March 2012 the Constitutional Court dismissed the applicant’s constitutional complaint.
12. The relevant part of the decision of the Constitutional Court reads as follows:
“(...) from the court judgments, it appears that the defendant, in a signed statement, refused to participate in the first hearing, adducing health reasons. For the same reason, three other hearings were postponed at the defendant’s request, and at the fourth hearing he requested to be defended by another [chosen] lawyer, a request which was accepted by the [first instance] court. At that hearing, where the defendant’s chosen lawyer was present, the new court composition was introduced, and this was not opposed by the defendant’s lawyer. Furthermore, in order to investigate the reason for the defendant’s absence, the court postponed three hearings; at a hearing of 6 November 2007, the court proceeded with presentation of the evidence, and several witnesses gave their statements in the presence of the defendant’s lawyer and the defendant himself.
The defendant was present at hearings held on 20 November, 5 December and 19 December 2007. It follows that at the hearings on which the defendant was not present, he refused to participate, or alleged unsubstantiated health grounds without any medical report; [these hearings], however, were not irregular since the lawyer chosen by the defendant was present. This indicates the defendant’s own lack of will to be present at the trial, an action which does not contradict the principle of fair defence”.
13. The relevant domestic law is set out in Cani v. Albania (no. 11006/06, §§ 23-37, 6 March 2012).
THE COURT’S ASSESSMENT
14. The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the trial in his absence prevented him from arguing the existence of mitigating factors in classifying the criminal facts attributed to him and imposing the criminal sentence of life imprisonment.
15. The general principles relating to trials in absentia are set out in Sejdovic v. Italy [GC], no. 56581/00, §§ 81-95, 1 March 2006.
16. While it is of capital importance that a defendant in criminal proceedings should be present during his or her trial, proceedings held in the absence of the accused are not always incompatible with the Convention if the person concerned can subsequently obtain from a court which has tried him a fresh determination of the merits of the charge, in respect of both law and fact (see Idalov v. Russia [GC], no. 5826/03, § 170, 22 May 2012). Moreover, it is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself. In order to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A). For example, the Court considers that before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6 it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Sejdović, cited above, § 87).
17. Coming to the present case, the Court notes that the applicant was notified and was thus aware that an indictment had been brought against him and that a criminal trial had started. During his trial the applicant was represented and assisted by a lawyer of his choosing. The trial court’s records show that the applicant was summoned to appear at a hearing of 16 January 2008, but he stated that, because of (undocumented) health reasons, he did not wish to participate in the hearing before the district court, providing no evidence for the alleged impediment to attending. The Court notes that the applicant was absent from three hearings before the district court (see paragraphs 5-7 above).
18. The Court observes that the district court assessed that the applicant’s absence was ‘deliberate’ and without legitimate grounds and, therefore, continued the applicant’s trial in his absence.
19. The Court considers that the applicant, knowing that the trial against him was pending, could have expected that his failure to attend hearings would result in his being tried and convicted in his absence. The applicant, represented by a lawyer of his choice, could not have been unaware that without having requested the adjournment of the hearings and without having presented reliable justification for not being able to attend, the scheduled hearings would be held in his absence.
20. The Court also reiterates that a defect at first instance may be remedied on appeal, as long as the appeal body has full jurisdiction (see Idalov v. Russia, no. 5826/03, §§ 179-180, 22 May 2012). In Albania appeal courts in criminal proceedings may assess all issues, both of fact and of law, and evidence may be adduced before them.
21. The Court notes that, under Article 427 of the Albanian Criminal Procedure Code (‘CPP’), an accused may apply to have new evidence put before a court of appeal, to have prosecution witnesses heard or to present his own (oral) evidence. Under Article 166 of the CPP an accused may also answer questions.
22. The applicant participated in the proceedings before the Vlora Appeal Court and was able in these proceedings to seek that any evidence be presented, to contest any evidence and to advance any arguments in his defence, including those relevant for the classification of the charges against him and to present all factors that might mitigate his sentence (see paragraph 9 above).
23. The Court notes that the applicant did not raise any complaints about the appeal proceedings, nor did he challenge the district court’s conclusion that he had agreed that the trial be conducted in his absence.
24. Having regard to all circumstances of the case, namely the applicant’s own conduct, the fact that he did not wish to participate in the hearings held before the district court, his participation in the appeal proceedings where he could present arguments concerning the classification of the charges against him as well as about any mitigating factors relevant for the sentence, the nature of these proceedings, the fact that the applicant was represented by a lawyer of his own choosing at all stages of the proceedings and the reasoning of the appeal court’s judgment, the Court finds that the applicant’s complaint about unfairness of proceedings under Article 6 is manifestly ill-founded. Accordingly, this complaint should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2023.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President