Přehled
Rozhodnutí
THIRD SECTION
DECISION
Application no. 52610/19
Gerd GJINARARI
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. 52610/19) 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 9 October 2019 by an Albanian national, Mr Gerd Gjinarari, who was born in 1974 and lives in Tirana (“the applicant”), and was represented before the Court by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome, Italy;
the decision to give notice of the complaint under Article 3 of the Convention concerning refusal to grant him release on parole to the Albanian Government (“the Government”), represented by their Agent, Ms Enkelejda Muçaj, General State Advocate, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. In 1997 Italian courts found the applicant guilty of forgery of documents and sentenced him to one year and six months’ imprisonment and a fine. By another separate decision given in 1999, which became final on 30 January 2002, the Italian courts found the applicant guilty of other offences, such as premeditated murder in aggravating circumstances, possession of firearms, production and sale of narcotic drugs and commission of crimes by an armed group, and sentenced him to life imprisonment. On 20 January 2003 the Italian prosecutor’s office combined the applicant’s sentences and ordered a whole life sentence, the starting point having been 13 February 1998.
2. On 10 March 2014 the Tirana District Court accepted a request by the prosecutor for the recognition of the Italian courts’ decisions convicting the applicant and imposing on him a life sentence. On 24 November 2014 the applicant was transferred to Albania to serve the life sentence.
3. On 23 July 2018 the applicant filed a request for release on parole (lirim me kusht).
4. On 14 February 2019 the Korça District Court accepted the applicant’s request for release on parole, subject to a number of conditions and the applicant was released.
5. Upon prosecutor’s appeal, on 26 June 2019 the Korça Court of Appeal overturned the decision, dismissing the applicant’s request.
6. On 6 August 2019 the applicant lodged a cassation appeal with the Supreme Court. He complained, amongst other things, that the Court of Appeal had made a wrong assessment of evidence and an erroneous interpretation of domestic law by considering him a recidivist. Also, the Court of Appeal had retroactively applied Article 64 of the Criminal Code, as amended in 2017, which required the serving of thirty-five years’ imprisonment for life prisoners before applying for release on parole.
7. On 14 June 2022 the Supreme Court dismissed the applicant’s appeal.
8. The applicant is considered a fugitive since he could not be found following the reversal of the decision granting his request for release on parole.
THE COURT’S ASSESSMENT
9. The applicant complains of a breach of Article 3 of the Convention about the alleged irreducibility of the life sentence imposed on him.
10. The Government objected that the applicant had not properly exhausted domestic remedies because he had not lodged a constitutional complaint.
11. The applicant argued that the Constitutional Court was not properly functioning because, owing to the vetting process of judges, it did not have a full bench and could not process complaints in due time.
12. The Court notes at the outset that the applicant is a fugitive and that a question may arise as to whether he may be considered a victim of a violation claimed under Article 3 of the Convention. However, the Court does not have to address that issue in the present case since the application is, in any event, inadmissible on the following ground.
13. The general principles concerning the exhaustion of domestic remedies and the principle of subsidiarity have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court stresses, in particular, that the principle of subsidiarity is one of the fundamental principles on which the Convention system is based. In order to enforce the principle of subsidiarity and give life to the provisions of domestic law guaranteeing the same rights as the Convention, the applicants are required to make use of available remedies at domestic level (see, among other authorities, Vučković and Others, cited above, § 69; and Habulinec and Filipović v. Croatia (dec.), no. 51166/10, § 26, ECHR, 4 June 2013).
14. In the present case the applicant did not lodge a constitutional complaint against the Supreme Court’s decision.
15. The Court has found that following the amendments as regards the jurisdiction of the Constitutional Court of 12 August 2016, a constitutional complaint became an effective remedy to be exhausted in principle for all Convention complaints (see Fullani v. Albania (dec.), no. 4586/18, § 79, 20 September 2022). The Court firstly notes that in the applicant’s case the Supreme Court adopted a decision against which a constitutional complaint could be lodged on 14 June 2022, almost six years after the said amendments (see paragraph 7 above).
16. The Court further notes that under Article 122 of the Albanian Constitution any ratified international agreement constitutes part of the internal legal system (after it is published in the Official Journal), is directly applicable in principle and has priority over the laws of the country that are incompatible with it. Under Article 17 § 2 of the Constitution, any restriction of constitutional rights and freedoms “in no case may exceed the limitations provided for in the European Convention on Human Rights”. Thus, the Convention forms an integral part of the Albanian legal system, where it takes precedence over contrary statutory provisions and is directly applicable (see, as the latest example in application of the same principles, AGONSET SH.P.K. v. Albania (dec.) [Committee], no. 33104/15, §§ 13 and 14, 10 May 2022, with further references).
17. In this connection the Court notes that its case-law is an integral part of the Convention system (see Habulinec and Filipović, cited above, § 30; and Budimir v. Croatia (dec.), no. 14303/11, § 54, 5 January 2016). The Court has already addressed the issue of compatibility of life sentences with the Convention, and, in particular its Article 3, in a number of cases and established the relevant principles in that respect (see, for example, Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts); Hutchinson v. the United Kingdom [GC], no. 57592/08, 17 January 2017; and Bancsók and László Magyar (no. 2) v. Hungary, nos. 52374/15 and 53364/15, 28 October 2021).
18. Therefore, it was open to the applicant, relying on the Court’s case-law, to argue before the Constitutional Court that guarantees of Article 3 of the Convention had been violated. Also, Article 25 of the Albanian Constitution provides that “No one may be subjected to torture, cruel, inhuman or degrading punishment or treatment”. The Constitutional Court would thus have had the opportunity to give a reply to such arguments. The Constitutional Court in its decisions may rely on the Convention and the Court’s case-law and has held that, within the scope of the constitutional review process, it has the authority to annul judicial decisions that have brought about infringement of constitutional and Convention rights (see, for example, Constitutional Court’s decision no. 20/2011 of 1 June 2011).
19. In view of this, the applicant’s argument that he had no prospect of success, because of the manner in which the national court had interpreted statutory provisions relevant for his request, is not persuasive, since in the Albanian legal system the Convention has precedence over domestic statutes (see paragraph 16 above). Also, the applicant’s contention that the Constitutional Court was not fully functional owing to the vetting process of judges and that the examination of his case would not be done in due time is of speculative nature, and the Court cannot accept it (see Fullani, cited above, § 77, and compare with Mendrei v. Hungary (dec.), no. 54927/15, § 39, 19 June 2018). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust them (see Mendrei, cited above, § 26).
20. Had the applicant complied with this requirement, it would have given the Constitutional Court the opportunity which the rule of exhaustion of domestic remedies is designed to afford States, namely to determine the issue of compatibility of the impugned decisions of the lower courts with the Convention and, should the applicant nonetheless have pursued his complaint before the Court, it would have had the benefit of the views of the Constitutional Court, as the highest court in Albania (see Fullani, cited above, §§ 78-80; and compare with Bakiu and Others v. Albania, no. 43928/13 et al., § 81, 10 April 2018).
21. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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