European Court of Human Rights

 

 

THIRD SECTION

CASE OF ZAJMI v. ALBANIA

(Application no. 83907/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

20 June 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Zajmi v. Albania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Georgios A. Serghides, President,
          Darian Pavli,
          Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 83907/17) 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 12 December 2017 by an Albanian national, Ms Çetina Zajmi, born in 1957 and living in Tirana (“the applicant”) who was represented by Mr O. Samarxhi, a lawyer practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their former Agents, Ms A. Hiçka and Mr A. Metani and, subsequently, by Mr O. Moçka of the State Advocate’s Office;

the Government’s observations;

Having deliberated in private on 30 May 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the criminal proceedings against the applicant in which she was found guilty of aggravated fraud and sentenced to fourteen years’ imprisonment by the Tirana District Court on 13 March 2013. The applicant’s appeal was dismissed by the Tirana Appeal Court on 8 November 2013. The applicant then brought a further appeal with the Supreme Court which dismissed it on 25 May 2015.

2.  On 8 November 2016 Law no. 99/2016 of 6 November 2016 was published in the Official Journal. It shortened the time-limit for lodging a constitutional complaint from two years to four months “of obtaining knowledge of the interference [with a constitutional right or freedom]” (konstatimi i cënimit). It also provided that the new time-limit should enter into force on 1 March 2017.

3.  On 27 February 2017 the applicant sent a constitutional complaint through a post office. On the envelope she put the address as: “Gj - K.SH, Tirané”.

4.  On an unspecified date the applicant checked with the post office whether her mail had been delivered to the Constitutional Court and learned that it had not because the recipient of her mail could not be identified since the name and address were incomplete.

5.  The applicant re-sent her constitutional complaint at the proper address of the Constitutional Court on 22 May 2017. It was declared inadmissible as being lodged out of the four-month time-limit on 16 June 2017.

6.  On 16 June 2017 the Constitutional Court adopted two other separate decisions in the cases of Pajova (decision no. 157) and Ibrahimi (decision no.152) in which it applied the newly introduced four-month time-limit in respect of the Supreme Court’s decisions adopted respectively on 7 May 2015 and 25 June 2015 and counting from the date of their adoption.

THE COURT’S ASSESSMENT

7.  The general principles concerning access to the Albanian Constitutional Court as regards the newly introduced four-month time-limit for lodging a constitutional complaint in Albania have been summarized in Çela v. Albania (no. 73274/17, §§ 20, 27-29 and 32, 29 November 2022).

8.  The Court notes that the final decision by the Supreme Court was adopted on 25 May 2015 and that at that time the time-limit for lodging a constitutional complaint was two years, counting from the adoption of the Supreme Court’s decision. The new law, shortening that time-limit to four months was published on 8 November 2016 and provided that the new time-limit would be applicable from 1 March 2017. The applicant lodged her constitutional complaint on 22 May 2017, within the two-year time-limit. However, it was declared inadmissible by the Constitutional Court as being lodged out of the four-month time-limit, counting from the date of adoption of the Supreme Court’s judgment.

9.  The Court notes that, initially, when the law introducing the new four-month time-limit was adopted it was not clear whether it would also apply in respect of contested decisions adopted before 1 March 2017 (see Çela, cited above, §§ 36-39). The Constitutional Court made its position clear no later than by 16 June 2017 when its decisions in the applicant’s case and the cases of Pajova and Ibrahimi were adopted (see paragraphs 5 and 6 above, see also Çela, cited above, § 6), holding in effect that the two-year time limit ceased to apply after 1 March 2017 and that any constitutional complaints filed after that date would be subject to the new four-month time limit in all cases, without exception. This meant in practice that with respect to all cases in which a Supreme Court judgment (or other final challenged decision) had been adopted prior to 1 November 2016, constitutional complaints had had to be filed by 1 March 2017, failing which they would be declared inadmissible.

10.  The Court has already held in the similar circumstances of the Çela case that such an interpretation of the new time-limit had not been sufficiently foreseeable for potential constitutional complainants on 1 March 2017. The new law, providing for a shorter time-limit, could not have been applied to the applicant’s constitutional complaint since it had been lodged on 22 May 2017, when the position of the Constitutional Court that the new time-limit would apply also in respect of contested decisions adopted before 1 March 2017 had not yet become clearly established practice (see Çela, cited above, § 37). It follows that a two-year time-limit for lodging a constitutional complaint was applicable in the present case. To hold otherwise would run contrary to the principle of legal certainty (see Çela, cited above, § 38). The Court notes that the applicant’s complaint to the Constitutional Court’s proper address has been submitted within the two-year time-limit.

11.  In these circumstances, the Court considers that the impugned decision of the Constitutional Court, dismissing the applicant’s constitutional complaint as being lodged out of time, amounted to an unjustified denial of the applicant’s right of access to the Constitutional Court. There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicant did not submit a timely claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 20 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

         Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President