FASKO proti Albánii

THIRD SECTION

DECISION

Application no. 4079/18
Fatos FASKO
against Albania

The European Court of Human Rights (Third Section), sitting on 22 November 2022 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. 4079/18) 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 16 January 2018 by an Albanian national, Mr Fatos Fasko, who was born in 1969 and is currently serving a prison term in Albania (“the applicant”), represented before the Court by Mr A. Visha, a lawyer practising in Tirana;

the decision to give notice of the complaint concerning the applicant’s right of access to the Constitutional Court to the Albanian Government (“the Government”), represented by their former Agent Ms. B. Lilo and subsequently Mr O. Moçaj, State Advocate General, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. By a judgment of 3 February 2015, the Serious Crimes Court in Tirana convicted the applicant of numerous crimes and sentenced him to fourteen years’ imprisonment. That judgment was upheld by the Appeal Court for Serious Crimes in Tirana on 10 February 2016. The applicant’s ensuing appeal with the Supreme Court was dismissed at a public hearing in the presence of the applicant’s lawyer on 1 February 2017, where the operative part of the Supreme Court’s decision was pronounced.

2. On 31 May 2017 the applicant lodged a constitutional complaint alleging that it was impossible for him to enclose a copy of the Supreme Court’s decision with full reasons as no such decision had been served at the relevant time.

3. The Supreme Court delivered its decision containing full reasoning on 7 July 2017 and it became available in the Supreme Court’s registry and on its website.

4. The Constitutional Court’s registry contacted the applicant’s lawyer by telephone, inviting him to submit a copy of the Supreme Court’s reasoned decision, and he agreed to do so. On 17 July 2017 the Constitutional Court found that the applicant’s constitutional complaint had been lodged within the four-month time-limit, counting from the date the Supreme Court’s decision had been announced, but that it was inadmissible because the applicant had failed to provide a written copy of the contested Supreme Court’s reasoned decision.

THE COURT’S ASSESSMENT

5. The applicant complains under Article 6 § 1 of the Convention that he had no access to the Constitutional Court. He argues that he could not have submitted the Supreme Court’s decision together with his constitutional complaint since at that time the Supreme Court had not yet issued the full reasoning of its decision.

6. The general principles concerning the right of access to a court are set out in the case of Zubac v. Croatia [GC], no. 40160/12, §§ 76-99, 5 April 2018.

7. The Court notes at the outset that the Constitutional Court counted the four-month time-limit for lodging a constitutional complaint from the date the Supreme Court’s decision was adopted and not from the date it was served on the applicant. However, that is not the issue in the present case because the applicant has not made any complaints in that respect. Moreover, his constitutional complaint was declared inadmissible on the ground that he had failed to enclose a copy of the contested decision of the Supreme Court and therefore, the Court will address only that issue.

8. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature such as the filing of documents or the lodging of appeals. The Court further considers that the rules governing the formal steps to be taken in lodging an appeal are aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty. Litigants should expect those rules to be applied (see Miragall Escolano and Others v. Spain, nos. 38366/97 and 9 others, § 33, 25 January 2000).

9. The Court notes that at the time when the applicant lodged his constitutional complaint, the Supreme Court had not yet issued the full reasoning of the decision contested by the applicant. However, it is clear from the decision of the Constitutional Court that that court’s registry had invited the applicant’s lawyer by telephone to submit a copy of the Supreme Court’s decision and he agreed to do so, but did not follow up on that in due time. The Court also notes that the Supreme Court’s decision with full reasoning was deposited in that court’s registry and published on its website on 7 July 2017. The applicant does not argue that it was not accessible to him prior to the examination of the complaint by the Constitutional Court on 17 July 2017 (contrast Miragall Escolano and Others, cited above, § 36).

10. In the particular circumstances of this case, the Court finds that by inviting the applicant’s lawyer to submit the contested decision of the Supreme Court, which had become available in the meantime, the Constitutional Court afforded the applicant an opportunity to comply with the formal requirements for lodging a constitutional complaint (compare, mutatis, mutandis, Cañete de Goñi v. Spain, no. 55782/00, § 40, ECHR 2002‑VIII).

11. The Court considers that the applicant himself bears responsibility for the situation he is complaining of to the Court because his lawyer did not comply with the request of the Constitutional Court and did not provide any reasons for this failure, either to the domestic courts or to the Court (see Zubac, cited above, §§ 90-95; and compare with, mutatis mutandis, Kamenova v. Bulgaria, no. 62784/09, § 50, 12 July 2018).

12. Given the above considerations, the Court finds that the applicant’s right of access to the Constitutional Court was not unduly restricted.

13. It follows that this part of the application is manifestly ill-founded and must 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 15 December 2022.

Olga Chernishova Georgios A. Serghides
Deputy Registrar President