Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in 1951 and lives in Gozd.

He married E.K. in October 1989. On 9 May 1990 K., the couple's daughter, was born. Two weeks later the couple split up.

On 2 November 1992 the Warsaw Regional Court pronounced their divorce. The court awarded custody of the couple's child to both parents and ordered that her place of residence should be with her mother.

Between 1992 and 1997 several sets of proceedings were conducted concerning the enforcement of the access arrangements provided in the divorce judgment. Ultimately, on 22 July 1997 the parties reached an agreement validated by the court as to the manner of implementing the custody arrangements. The applicant was allowed to see K. once a month on Sundays for two hours, from 3 to 5 p.m.

Subsequently, the Warsaw-Mokotów District Court and, upon appeal, the Warsaw Regional Court, conducted successive sets of enforcement proceedings in respect of the 1997 agreement. In particular, it examined the applicant's successive applications for a fine to be imposed on the mother and/or to have time-limits fixed within which she should comply with the access arrangements and allow the applicant to see K.

On 16 October 1997 the applicant lodged an application with the Warsaw District Court for a fine to be imposed on K.'s mother. He submitted that she had consistently failed to comply with the conditions of the agreement concluded in July. On 2 December 1998 the mother was summoned by the court and ordered to allow the applicant access to their child within fourteen days. Upon her appeal, on 23 February 1999 the Warsaw Regional Court quashed that decision on formal grounds and remitted the case. On 21 October 1999 the Warsaw-Mokotów District Court set a one-month time-limit within which the mother was to comply with the conditions of the access agreement.

In letters to the Warszawa Mokotów District Court of 31 March and 26 April 1998, 19 April 1999 and 10 April 2001, E.K. requested the court to order the applicant to attend the meetings with the child without male friends, to dress appropriately for the occasion, to arrive on time and not to tease the child. In a letter of 9 March 1998 she informed the court that the applicant had failed to attend meetings planned for November, December, January and February, without having informed her that he would not come. She further stated that despite this the child would be ready to meet her father under the conditions specified in the agreement. In a letter of 29 January 1999 she informed the court that out of eighteen monthly meetings planned since the agreement had been concluded the applicant had failed to attend nine.

In 2000 the District Court appointed a custody officer to supervise the execution of the access agreement. She periodically submitted reports to the court, dated, inter alia, 15 September 2000, 6 April and 8 May 2001, 12 September 2003, 26 April and 2 May 2004 and 25 May 2005.

In January 2000 the first-instance court, following the applicant's complaint, again set a one-month timelimit for the mother to comply with the access arrangements and imposed a fine on her in the amount of 1,000 Polish zlotys (PLN).

On 4 June and 29 November 2000 the applicant renewed his applications. The court dismissed them on 6 September 2001. It observed that there were no grounds for imposing a fine, as the mother had not taken any steps to make it impossible for the father to see the child. It was the child herself who was hostile to her father.

The applicant appealed, complaining that the court lacked impartiality and that it had wrongly assessed the evidence before it. The Warsaw Regional Court dismissed his appeal on 10 December 2001. It found that the parties had been in a bitter conflict; that the child had a negative attitude towards her father; that the mother had not done anything to prevent the girl from having contact with her father; that it was not in the child's best interest to force her to have frequent contact with him; and that the lower court had made correct findings of fact.

In May 2002 the applicant submitted a new application for a fine to be imposed on the mother. On 1 August 2002 the court dismissed it, essentially reiterating the reasoning adopted in its decision of 6 September 2001 and referring to similar findings of fact. It observed that the mother and father were in a conflict so bitter that they had become unable to see how much their conflict affected the child. They both blamed the other party for all the problems arising in connection with the exercise of custody and access rights, failing to see their own shortcomings and being unable to reach any compromise. The child had become an instrument in the fight between the parties. The child's hostility to her father and, in particular, the fact that the mother had not sought to influence her attitude, was alarming. The parents had told the court that they needed therapy, but had failed to do anything about it. The father had repeatedly asked for the mother to be punished by a fine but he had not challenged the assertion that it was the child herself who did not want to see him.

The applicant appealed, complaining that the first-instance court had been very superficial in the examination of the evidence.

On 14 November 2002 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision. It observed that forcing the child to see his father would not by itself restore the emotional ties between the girl and her father, and that these ties had become seriously weakened.

On 4 June 2003 the applicant submitted a new application to make the mother comply with the access arrangements. In the proceedings instituted by this application the court ordered that another opinion should be prepared by psychologists to assess both the feasibility of the applicant's contact with K. and the psychological state of the persons concerned.

In that opinion, dated 1 October 2003, the experts stated that the child had declared that she had agreed to talk to the experts only at her mother's request. She had stressed that she had not changed and would not change her attitude towards her father. She could not understand why the applicant wanted to pursue contact, given that he had filed an application for denial of paternity (see paragraphs 37-38 below). She was convinced that he was motivated by his wish to annoy and cause stress to herself and her mother. She had complained about his visits to her school and the fact that he had told her teachers and her friends that she was a “bad daughter”. K. had called the applicant a “sadist”. She had objected to his criticising her mother, to whom she was very strongly attached. K. had strongly denied that her mother had ever forbidden her to see the applicant.

In their conclusion the experts reiterated the conclusion of their 2001 report and noted that the therapy, which both the parents and the daughter had undergone separately, had not produced positive results.

On 25 February 2004 the first-instance court again set a one-month time-limit for the mother, on pain of a fine of PLN 1,500. The court summarised the enforcement proceedings and the decisions given in them. It noted that the applicant had not behaved badly towards the child and that he had reported regularly for the meetings. His behaviour towards the child might have been awkward but this was due essentially to the fact that he did not actually know the girl as he had had very little opportunity to get to know her. The court referred to an expert opinion prepared for the purposes of the proceedings and concerning the child's psychological situation. K. was very hostile towards her father, despite the fact that she had had no personal experience with him capable of justifying her hostility. The mother had failed to take any steps to persuade the child to have contact with her father or to alter the negative image which the child had formed of him. The court found K.'s attitude alarming. It further noted that had the mother been dissatisfied with the scope or character of the applicant's access rights, it had been open to her to challenge them in separate proceedings. The present case was concerned only with the enforcement of the existing access rights as defined by the 1997 agreement and it was obvious that the mother was not complying with them.

Both parties appealed. In her appeal E.K. stressed that she had never taken any steps to prevent her daughter from meeting the applicant. It was the child who had steadfastly refused to see her father, which left the mother helpless. In his appeal, the applicant insisted that the mother should be obliged to pay the fine after the expiry of the timelimit, as provided for by Article 1050 of the Code of Civil Procedure.

The appeals were dismissed on 7 June 2004. The Warsaw Regional Court dismissed the applicant's appeal, in which he sought that a fine be imposed on the mother, noting that a fine could only be imposed if she had failed to honour her obligation within the time-limit set by the court. It further observed that it was actually the child, not the mother, who had refused contact, while it was the mother who was the debtor within the meaning of Article 1050 of the Code of Civil Procedure.

It also dismissed the mother's appeal, observing that the child had, beyond any doubt, been drawn into the conflict between the parties. The image she had of her father had been shaped by her mother, particularly as the child had not had any contact with her father for several years, despite the fact that he had always been ready to see her and continued to come to the meetings fixed for that purpose. It was the mother who was responsible for the child's attitude, which was full of hatred and hostility towards her father. The court found the mother's attitude inappropriate. It further noted that the applicant and the mother and child had undergone therapy, but separately. However, as the child had refused to talk about her father, the issue of contact with him had not been addressed in her therapy. There were no grounds for believing that contact with her father would harm the child.

On 16 November 2004 the Warszawa-Mokotów District Court examined a complaint by the applicant, submitted on 15 September 2004, that the access rights had not been properly implemented, despite the expiry of the time-limit set for that purpose in the decision of 25 February 2004. The court noted that the time-limit for ensuring compliance had expired and that since that date the applicant had not seen the child as she steadfastly refused to meet him. The court imposed a fine of PLN 1,000 on the mother. It further set a timelimit of thirty days for her to comply with the access arrangements.

E.K. appealed. On 7 June 2005 the Warsaw Regional Court allowed her appeal and remitted the case. It observed that while it was true that the contact arrangements had not been respected, this was not because of the mother's failure to comply with them, but because of the girl's attitude. It further noted that she was fifteen years old and her views and feelings had to be taken into account by the courts.

On 7 November 2005 the Warszawa-Mokotów District Court dismissed the applicant's application for a fine to be imposed on E. K. The court heard K. in the absence of the parties and referred to her statements in its decision. She stated that it was she who had not complied with the access agreement. She told the court that the applicant had never been around when she needed him, he had never listened to her and had only wanted to hurt and annoy her mother. She stated that she would not see her father.

The court emphasised that the father had a right to contact his daughter and the parties themselves had had regard to this right when concluding the 1997 agreement. However, while the situation obtaining at that time had probably offered prospects of contact, the court was obliged to take into consideration the current situation. K. was now fifteen years old and her opinion had to be taken into account. Lack of regular and peaceful contact for over eight years had resulted on her part in a lack of any emotional ties with her father. It could not be overlooked that the applicant did not want to listen to her views or to respect them. Even before the proceedings before the court he was dismissive of her views and expressed the opinion that they had been dictated by her mother.

The court concluded that it could not be said that the mother was to blame for making contact impossible. There were no grounds for imposing a fine on her.

The applicant appealed, requesting that the decision be quashed.

On 25 April 2006 the Warsaw Regional Court dismissed his appeal, finding that there were no grounds on which to impose a fine on the mother, given that the child was old enough to express her own views and feelings on the question of contact, which she obviously did not want to maintain. The mother could not be said to bear responsibility for the non-enforcement of the access arrangements.

On 26 June 2006 the applicant again requested that a fine be imposed on E.K. for failure to respect the access arrangements.

After that date, he had no further contact with the girl, even sporadically.

In reports submitted to the court on 4 December 2007 and 13 February 2008 the custody officer summarised her conversations with E.K. and K. She stated that K. was very mature for her age and very articulate. She did not understand how her father could say that he loved her and behave towards her in the way he did. He did not take her views into account, criticised her mother and her family, and had told many persons in K.'s environment that her mother was incapable of taking proper care of her. During the contact visits, he had complained about her mother. She did not want to be exposed to this. She requested recognition and understanding of her feelings and views. She stated that she was almost an adult and able to make a sensible judgment for herself. The contact with her father had been a source of stress, anxiety and shame for her.

On a subsequent unspecified date the Warszawa-Mokotów District Court ordered the applicant to submit the original of the access agreement of 1997. The applicant complied on 14 March 2008.

His application of 26 June 2006 (see paragraph 23 above) was dismissed by the Warsaw District Court on 9 May 2008. The court had regard to all the material gathered in the file on the enforcement proceedings. It took into account K.'s persistent refusal to see the applicant and the fact that she had repeatedly said that she disliked or even hated him. It noted that there was no evidence that E.K. had prevented her daughter from seeing her father. It observed that the applicant's conduct towards K. could not have contributed to building good relations between them as he had tried on various occasions to see her unexpectedly at school or in other places or circumstances, which had only heightened the child's dislike and fear of him. It also noted that K. was eighteen years old and her views had to be taken into consideration.

On 20 May 2008 the court discontinued the proceedings concerning the enforcement of the 1997 agreement on the ground that K. was now 18 years old and thus the proceedings had become devoid of purpose.

On 21 April 1999 the court extended the applicant's access rights specified in the 1997 agreement and ordered that his meetings with K. be supervised by child contact supervisors. This decision was later amended by the Warsaw Regional Court on 22 February 2000. That court held that the temporal scope of the applicant's contact visits with K. should remain as determined in the original agreement but upheld the proviso that they should be supervised by child contact supervisors.

In 2001 the applicant again requested the Warsaw District Court to change the access arrangements specified in the 1997 agreement and to extend his visiting rights in respect of the child. Simultaneously, the mother requested the court to limit the applicant's access rights to a minimum. These two applications were subsequently joined and examined in the same set of proceedings.

The applicant's daughter was examined by experts in the course of these proceedings. The objective of the expert opinion, submitted to the Mokotów District Court, was to examine the nature of the relationship between the applicant and his daughter and to assess the value of contact visits for the child's development and well-being.

The experts observed that K. had a highly negative opinion of her father. She refused to use his surname as her own name. She was of the view that he had failed to show a proper interest in her and that in fact he despised her and all his actions were aimed at annoying her and her mother. The experts concluded that because of that negative attitude relations between the applicant and his daughter were strained to such an extent that any meaningful contact was impossible.

On 23 October 2001 the court deprived the applicant of his access rights. The judgment was amended on 28 February 2002 by the Warsaw Regional Court and the mother's application to restrict the applicant's access rights was dismissed.

In May 2002 the applicant submitted to the same court an application to have the mother's custody rights restricted. In July 2002 E.K. submitted an application to have the applicant divested of his rights.

By a decision of 8 August 2002 the Warszawa-Mokotów District Court dismissed the applicant's request, ordered him to undergo therapy and imposed an identical obligation on E. K. and K. The court observed that, as the conflict between the parties had made it impossible for them to show a modicum of co-operation in the child's interest, therapy offered a chance for their relationship to improve. The court found that the conflict between the parents had caused the child to suffer from very serious psychological disturbances.

In a new set of proceedings instituted by the applicant by which he requested that E.K. be divested of her parental rights, the court questioned experts at a hearing held on 7 January 2004.

On 18 February 2004 the Warszawa-Mokotów District Court dismissed the request submitted by the applicant, expressing the view that the applicant was essentially motivated by his wish to harass his former wife.

On 30 March 2006 E.K. requested the Warszawa-Mokotów District Court to divest the applicant of his parental rights. The applicant lodged an identical application with the same court. The cases were subsequently joined at a hearing held on 17 July 2006. A hearing scheduled for 16 October 2006 was adjourned as a refusal to allow the request to disqualify the judge, submitted by the mother, issued on 4 September 2006, had not become final. Subsequent hearings scheduled for 25 January and 5 March 2007 were adjourned as the parties failed to attend them. On 23 May 2007 a witness failed to comply with the summons and the hearing was adjourned. The next hearing was scheduled for 12 September 2007. On 4 June 2007 the applicant submitted a motion for a lay judge to be disqualified. On 12 September 2007 the court decided that the mother and child should be examined by the experts. The mother and K. were accordingly summoned to report to the Family Diagnostics Centre on 1 April 2008 but failed to comply with the summonses on that date. The court scheduled the hearing for 27 May 2008. The interview in the Centre was rescheduled for 11 June 2008.

On 27 May 2008 the court discontinued the proceedings as K. had turned eighteen on 9 May 2008.

In 2001 the applicant requested the Piaseczno District Prosecutor to bring, on his behalf, proceedings for denial of his paternity in respect of K. The child's mother was heard by the prosecutor on 17 October 2001. She gave her consent to DNA tests being carried out. The prosecutor informed the applicant thereof and stated that he would bring proceedings before the court only if the results of the tests showed that the applicant was not the father. By a letter of 2 November 2001 the applicant refused to undergo a DNA test and requested the prosecutor to lodge the case with the court. He submitted that the court should order the mother and child to undergo a test.

The prosecuting authorities brought no proceedings, finding, in the light of the parties' submissions, that there were no justified grounds on which to challenge the applicant's paternity.

On an unspecified date in 2006 the applicant filed a complaint under Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) about a breach of his right to have his case heard within a reasonable time in the enforcement proceedings instituted by his application of 4 June 2003 and terminated by the decision of 25 April 2006 (see paragraphs 16 and 22 above).

On 21 September 2006 the Warsaw Regional Court dismissed his complaint. It observed that the applicant complained essentially about the second-instance court's quashing, on substantive law grounds, the decisions given by the first-instance court, which, in his view, had unduly prolonged the proceedings. The court noted that the length complaint could not go to the merits of the decisions and that there had been no periods of inactivity in the proceedings. Having examined the conduct of the District Court since the entry into force of the 2004 Act on 17 September 2004, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time.

On 6 June 2008 the Warsaw Regional Court discontinued the proceedings instituted by the applicant's complaint about the unreasonable length of the proceedings, summarised in paragraphs 35 and 36 above. The court found that, given that the impugned proceedings had been discontinued on 27 May 2008, a ruling on their length had become redundant.

The relevant domestic law and judicial practice concerning the enforcement of a parent's visiting rights are set out in the Court's judgment in the case of Zawadka v. Poland, no. 48542/99, § 48, 23 June 2005.

In particular, according to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, access decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8).

“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of fine (...).

If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.”

If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation.

Article 12 of the UN Convention on the Rights of the Child provides that the States Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the provisions of the 2004 Act as applicable at the material time, are set out in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


The applicant, Mr Silvio Unterguggenberger, is an Austrian national, born in 1935 and living in Vienna. He is represented before the Court by Mr M. Graff, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was a member of the executive board of the V. Company and was responsible for the management of the company’s finances.

On 7 March 1990 this company laid an information against the applicant inter alia on the suspicion that the applicant had caused financial damage by abusing his position as financial manager of the company. Point a) of the information concerns transactions with the K. Bank. It alleges that the K. Bank, chosen by the applicant to carry out the management of the V. Company’s investment portfolio, had charged the latter excessive fees. It alleges further that the applicant had requested a refund of about 12 million Austrian schillings (ATS) for entrusting the K. Bank with these financial transactions.

On 2 April 1990 preliminary investigations were opened against the applicant.

On 19 April 1990 the Economic Police (Wirtschaftspolizei) carried out searches at the applicant’s premises and at the premises of M.W., the former director of the K. Bank, who was at the same time a witness against the applicant. Three diaries and about a hundred pages of other documentary evidence (the so-called “green folder”) were seized at M.W.’s home. The documents which were considered relevant to the investigation were listed in a report of 21 May 1990.

On 20 April 1990 the investigating judge at the Vienna Regional Criminal Court heard the applicant. According to the minutes, the questioning started at 9 a.m. The applicant was informed that preliminary investigations on the suspicion of a breach of trust (Untreue) under section 153 of the Criminal Code (Strafgesetzbuch) and on the suspicion of offences under the Company Act (Aktiengesetz) were pending against him. He was first heard as regards the alleged breach of the Company Act and then about the transactions with the K. Bank. In this respect, he was told that he was suspected of having received a refund from M.W. and indications as to the amount at issue and the date of receipt were also given. The applicant stated that he was aware of the allegations and handed over a written statement outlining his position. The questioning on the transactions with the K. Bank ended at about 10 a.m. whereas the further questioning, which lasted until 12 a.m., concerned facts which are not relevant in the present context.

On 8 May 1990 the investigating judge decided that the defence was not entitled to inspect certain specified parts of the file. On 29 May 1990 the applicant lodged a complaint against this decision with the Review Chamber (Ratskammer) of the Regional Court which was unsuccessful.

On 22 June 1990 the Economic Police submitted a report on the result of their investigations to the Regional Court. The latter confirmed in writing the receipt of the green folder, which was subsequently transmitted to an expert.

On 24 April 1991 the V. Company filed a supplementary information against the applicant concerning transactions with the K. Bank.

On 6 June 1991 the V. Company filed another supplementary information against the applicant concerning new facts. It alleged that he had introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, a subsidiary of the V. Company, and that the commission paid had caused financial damage to the V. Company.

On 13 and 16 December 1991 the V. Company filed further documentary evidence and information.

On 6 August 1993 the Regional Court received the applicant’s request to obtain the green folder from the expert in order to enable him to inspect it. He submitted that, according to the report of 21 May 1990 by the Economic Police, documents which were relevant to the proceedings had been seized at M.W.’s premises and had apparently been handed over to the expert who referred in his written opinion to one of those documents. The investigating judge at the Regional Court did not take any decision on this request.

On 1 March 1994 the Public Prosecutor’s Office preferred the thirty-page indictment against the applicant and his co-accused, L., concerning charges of breach of trust under section 153 of the Criminal Code. The applicant was accused, inter alia, of having in 1985 and 1986 demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank, and for having introduced, between 1985 and mid-1987, L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus, creating a fictitious claim for commission, causing damage of about ATS 9 million. Detailed information as to the underlying facts was given with regard to both charges. The indictment was served on the applicant on 22 March 1994.

On 7 March 1994 the investigating judge, upon the request of the Public Prosecutor’s Office on 23 February 1994, discontinued the criminal proceedings against the applicant inter alia as regards point a) of the information concerning “excessive fees for transactions with the K. Bank” (see above, the information of 7 March 1990).

On 12 April 1995 the applicant repeated his request that the green folder be made available to him. Again the Regional Court took no decision.

On 27 April 1995 the applicant filed a motion for the hearing of two witnesses and for access to four related criminal court files.

On 8 May 1995 the trial started before the Vienna Regional Criminal Court sitting as a court with lay assessors (Schöffengericht). When the co-accused, L., was heard, the presiding judge ruled that the applicant was not allowed to be present. Neither the applicant nor his counsel contested this measure. Defence counsel was present during the interrogation. The applicant was re-admitted to the court room as soon as the questioning of L. was finished and the presiding judge gave him a summary of L.’s statements. At that stage, neither the applicant nor his counsel asked for further information or complained that the summary of L.’s statements was insufficient. The former director of the K. Bank, M.W., was heard as a witness in the presence of the applicant and the defence questioned him in some detail.

On 9, 10, 15, 16 and 17 May 1995 further hearings were held and numerous witnesses were heard.

It is in dispute between the parties when the green folder was made available to the defence. The Government submit that it was available as of the first day of the trial, whereas the applicant submits that he only received copies of parts of it on 15 May 1995, i.e. on the fourth day of the trial.

On 17 May 1995, the last hearing day, the applicant’s counsel filed a further application for the hearing of witnesses. According to the minutes, he also requested that documents from the green folder be read out and - in case it was disputed that M.W. was the author of those documents - to hear M.W. and to appoint a handwriting expert. At the close of the hearing the presiding judge dismissed all outstanding requests for the taking of further evidence.

On 17 May 1995 the court gave judgment, convicting the applicant of a breach of trust within the meaning of section 153 of the Criminal Code, and sentencing him to six years’ imprisonment for having demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank. He was also convicted of having introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus creating a fictitious claim for commission and causing damage of about ATS 9 million. It found that, in both cases, he had not transferred the commission to the V. Company and that he had abused his position as the financial director of the V. Company, causing it financial damage. The court recalled that the case-law on the question of whether the acceptance of commission by trustees fell within the scope of section 153 of the Criminal Code had been contradictory for some time, but had been settled by the Supreme Court’s judgment of 17 May 1983 in another case. According to that judgment, section 153 was applicable to the applicant’s case.

On 11 December 1995 the applicant filed a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung). He complained about the refusal to hear several witnesses he had called for, and the fact that he had not had access to the green folder before the trial hearings. Thus he had not been able to prepare his defence properly. He further noted that he had not been present when his co-accused had been heard. He alleged that he had been insufficiently informed about the statements made by the co-accused afterwards. Furthermore, he criticised the evaluation of evidence. As to the facts concerning the K. Bank, he alleged that his conviction violated the principle of ne bis in idem because the investigating judge had ordered the criminal proceedings to be discontinued in this respect on 7 March 1994. Finally, he complained that the court had erred in law when applying section 153 of the Criminal Code to his case. He argued that it was section 153a of the Criminal Code which was pertinent to the offence concerning the acceptance of advantages by trustees (Geschenkannahme durch Machthaber). As this section had entered into force after he had committed the acts in issue, he could not be punished at all.

On 4 April 1996 the Attorney-General (Generalprokurator) filed thirty pages of observations (Croquis) on the applicant’s plea of nullity and his appeal.

On 12 April 1996 the applicant was notified that the hearing before the Supreme Court would take place on 25 April 1996.

On 15 April 1996 the applicant, who was at that stage still represented by the lawyer who had filed his plea of nullity and appeal, received the Attorney-General’s observations and was informed that he could comment on them within a delay of eight days. He sent his twelve-page reply by mail on 23 April 1996, which reached the Supreme Court the next day. He did not request an adjournment of the hearing.

On 25 April 1996 the hearing took place and the Supreme Court confirmed the Regional Court’s judgment.

As to the applicant’s complaint that he had not been adequately informed about the statement of his co-accused L., who had been heard in his absence, the Supreme Court noted that the presiding judge had given the necessary information by way of a summary of the statements. It would have been open to defence counsel to challenge the applicant’s exclusion from L.’s hearing and to complain about the alleged insufficiency of the summary of L’s evidence, in order to obtain an interim decision from the court in this respect.

Further, the Supreme Court found that the court of first instance had justifiably refused to hear certain witnesses as it had in any case considered that the facts to be proved by those witnesses had already been established. Thus, the refusal did not cause any prejudice to the applicant.

As to the green folder, it noted that the applicant could have applied for the further questioning of M.W. after having obtained the folder, but that he failed to make such an application and had therefore not fulfilled the conditions for a plea of nullity in this respect.

The Supreme Court found that the applicant’s further submissions constituted an inadmissible attempt to challenge the Regional Court’s assessment of the evidence, which was duly reasoned and free from contradiction.

As to section 153 of the Criminal Code, the Supreme Court confirmed that it was applicable to the applicant’s case. Finally, it found that the facts described in the investigating judge’s order of 7 March 1994, namely “excessive fees for transactions with the K. Bank” were not identical to those facts underlying the conviction, namely the receipt of refunds by the applicant. Therefore, the conviction did not violate the principle of ne bis in idem.


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 34;Non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1971 and is currently serving sentences of life imprisonment and 15 years’ imprisonment in Peqin High Security Prison (Albania).

On 6 October 1997 the Italian authorities issued an arrest warrant in respect of the applicant, charging him with the premeditated homicide of an Albanian national in Milan, Italy.

On 2 February 2001 the applicant was sentenced in absentia to life imprisonment by the Milan Assize Court of Appeal on a count of murder and to five years’ imprisonment on a count of illegal possession of firearms.

On 16 February 2001 the Italian authorities issued a second arrest warrant concerning the applicant which related to a new charge against him, namely participation in a criminal organisation and international narcotics trafficking. From the documents in the file it transpires that during the period of the proceedings before the Italian courts the applicant was carrying on a lawful business and resided in Albania.

On 29 April 2001 Interpol Albania transmitted to the Tirana Police the two arrest warrants mentioned above. On the same date the Chief of the Tirana Criminal Police ordered that “the arrest warrants be immediately enforced”.

On 30 April 2001 Interpol Rome sent a fax to the Albanian authorities seeking the initiation of criminal proceedings against the applicant for crimes committed on Italian territory.

On 30 April 2001 the applicant was arrested in Albania on the strength of the arrest warrant issued on 16 February 2001 by the investigating judge at the Milan Court of Appeal. The charge related to the applicant’s involvement in a criminal organisation and international drug trafficking.

On 1 May 2001 the applicant was remanded in detention for 15 days.

On 12 May 2001 the Tirana District Court, (“the District Court”), dismissed an appeal by the applicant against the grounds of his arrest. On the same day, the prosecutor informed the applicant about the charges against him, namely participation in a criminal organisation and international narcotics trafficking.

On 15 May 2001 the District Court upheld the prosecutor’s application and ordered the applicant’s detention in prison for an undetermined period. On 4 June 2001 the Supreme Court upheld the decision.

In June and December 2001 the General Prosecutor’s Office repeatedly requested the Italian authorities to transmit the evidence that grounded the charges against the applicant. In January 2002 the request was also repeated by the Albanian Minister of Justice.

On 30 July 2002 the General Prosecutor’s Office instituted criminal proceedings in the Tirana District Court, charging the applicant with international narcotics trafficking (hereinafter “the criminal proceedings”).

On 29 December 2003 the District Court found the applicant guilty of establishing a criminal organisation and international narcotics trafficking and sentenced him to 19 years’ imprisonment. According to the applicant, the conviction related to a new charge of which he had never been informed. On 25 June 2004 the Tirana Court of Appeal, (“the Court of Appeal”), upheld the District Court’s judgment but changed the applicant’s sentence to 17 years’ imprisonment. The applicant appealed to the Supreme Court. On 23 June 2006 the Supreme Court changed the qualification of one of the criminal offences of which the applicant had been convicted. It upheld the Court of Appeal’s judgment and changed the applicant’s sentence to 15 years’ imprisonment. A constitutional complaint by the applicant to the Constitutional Court against the above-mentioned judgments is still pending.

On 21 February 2002, while the applicant was in detention on remand on the charges of participation in a criminal organisation and international narcotics trafficking (see paragraph 12 above), the Milan public prosecutor’s office asked the Italian Ministry of Justice to request the Albanian authorities to validate in Albania the sentence imposed on the applicant by the Milan Assize Court of Appeal on 2 February 2001, which had become final on 30 January 2002.

On 28 March 2002 the Italian Ministry of Justice, among other things, informed the Milan public prosecutor’s office that the Italian authorities could not seek the validation and enforcement in Albania of a criminal judgment delivered by the Italian courts, in view of the fact that neither country was party to any international agreement on the matter. On the same day the Italian Ministry of Justice transmitted the above-mentioned judgment, for information purposes, to the Albanian Embassy in Rome.

On 8 April 2002 the Albanian Embassy in Rome, in a letter with the misleading heading “Transfer of an Albanian national currently detained in Italy”, informed the Albanian Government of the “request for extradition” by the Italian Ministry of Justice concerning the applicant, who, according to the Embassy’s letter, was “serving a sentence in Italy”.

On 23 April 2002 the Governments of Italy and Albania signed an agreement for the transfer of sentenced persons, which was ratified by the respective parliaments in 2003 and 2004.

On 3 May 2002 the Albanian Ministry of Justice, under Article 512 of the Albanian Code of Criminal Procedure (“the CCP”), requested the General Prosecutor’s Office to institute proceedings for the validation and enforcement in Albania of the judgment concerning the applicant delivered by the Italian court.

On 15 May 2002 the District Court, in a single-judge panel, ordered the applicant’s detention pending the proceedings for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment of 2 February 2001. The applicant was served with the decision while he was in detention in connection with the criminal proceedings referred to above (see paragraphs 17-18 above).

On 10 May 2002, under Articles 512 and 514 of the CCP, the General Prosecutor’s Office initiated proceedings before the District Court for the validation and enforcement in Albania of the judgment delivered by the Milan Assize Court of Appeal (hereinafter “the validation and enforcement proceedings”).

According to the applicant’s submissions to the District Court in May 2002, Article 514 of the CCP required, inter alia, his consent for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment, which consent he decided not to give (see paragraph 85 below).

On 13 June 2002 Parliament adopted amendments to the provisions of the Code of Criminal Procedure, which, inter alia, repealed the requirement of the detainee’s consent provided for in point (e) of Article 514 of the CCP (see paragraph 86 below).

On 17 June 2002 the General Prosecutor filed further observations with the District Court, pointing out, among other things:

“...in spite of the fact that the consent of the sentenced person is required by Article 514 (e) of the CCP for the validity in Albania of a sentence imposed by a foreign authority, this should be interpreted only in circumstances involving the transfer of sentenced persons and not in such a manner as to hinder the course of justice. Moreover, Parliament, by Law no. 8813 of 13 June 2002, abrogated point (e) of Article 514 of the CCP...”

On 20 June 2002 the District Court rejected the General Prosecutor’s request as not being in compliance with the requirement in Article 514, point (e), of the CCP. The court held:

“...the requirement laid down in Article 514, point (e), of the CCP is necessary for the validity and enforcement in Albania of a sentence imposed by a foreign authority in accordance with the Convention on the Transfer of Sentenced Persons and the provisions of domestic law. In accordance with the wording of the above-mentioned Article, the consent of sentenced persons is required without any distinction between the circumstances of the transfer of detainees or the validity of the sentence imposed by a foreign court. Moreover, Law no. 8813 of 13 June 2002, which abrogates point (e) of Article 514, is not applicable in the present case since it has not come into force for the time being ...”

On 24 July 2002 the Court of Appeal dismissed an appeal by the General Prosecutor. The court upheld the reasoning set out in the District Court’s judgment and held that Law no. 8813 of 13 June 2002 could not be applicable retroactively on the ground that it would have resulted in more severe provisions being applied to the applicant’s detriment.

On an unspecified date in 2002 the General Prosecutor lodged an appeal with the Supreme Court (Criminal Division) against the Court of Appeal’s judgment.

On 29 October 2002, in order to harmonise and amend the courts’ practice (për unifikimin dhe ndryshimin e praktikës gjyqësore), the President of the Supreme Court relinquished jurisdiction in favour of the Supreme Court’s Joint Benches.

On 30 January 2003 the Supreme Court, Joint Benches, quashed the judgments of the Court of Appeal and the District Court and remitted the case for fresh consideration to the District Court. In its judgment, the Supreme Court interpreted provisions of the CCP relating to extradition, the transfer of sentenced persons and the validity and enforcement in Albania of sentences imposed by foreign courts, giving its definition from the standpoint of international law principles and inter-State cooperation. The court held that in circumstances where no ruling could be given on a specific issue because the relevant provisions were inadequate, a legal basis could be provided by international customs, namely the principle of good will and reciprocity, and treaties. In the present case, finding that the requirement laid down in Article 514, point (e), of the CCP was inadequate, it considered that the European Convention on the International Validity of Criminal Judgments and the European Convention on the Transfer of Sentenced Persons provided a sufficient basis for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment.

The judgment stated, in so far as relevant, the following:

“The transfer of sentenced persons has been regulated by the European Convention on the Transfer of Sentenced Persons as ratified by the Parliament of the Republic of Albania and published in the Official Journal no. 22 of 1999 (...). The European Convention on the International Validity of Criminal Judgments has been signed but not yet ratified by the Parliament. As such, this Convention cannot be considered a constituent part of the domestic legal corpus and is not directly applicable. However, its signature and the approval of the engaging provision according to which the State recognises and respects the generally recognised norms and principles of the international law, guide us to understand, interpret and justly apply the provisions of the CCP at issue.

In the case of validity and enforcement of a foreign criminal judgment, the reference to and the solution of the case in accordance with point (e) of Article 514 of the CCP, at the material time, would be nonsense. Were the court to regard the consent of the sentenced person as essential, that would lead to an ad literam interpretation of the provision, as applied by the District Court and the Court of Appeal. However, the interpretation of a legal provision is rather complex. In the event the ad literam interpretation leads to an absurdity [nonsense], a logical and systemic interpretation prevails. According to this interpretation, the said provision shall be interpreted in a reasonable manner. This means that the notion of “the consent of the sentenced person” cannot be broadly interpreted. It should be narrowly interpreted so as not to lead to an absurdity, which would be the case, were the appellant to give his consent to serve the criminal sentence in his country. As it transpires from the acts, the appellant was tried in absentia since he absconded from the Italian justice.

The consent of a person sentenced by a foreign court is a sine qua non for the determination of the question whether the sentence is served in the sentencing State or in the detainee’s country of origin, that is in the prisons of the country of which he is a citizen [emphasis added in the original text].

This decision of the Supreme Court, Joint Benches, finally resolves the problem, holding that the lack of consent by the sentenced person for the validation of a foreign criminal judgment is not an obstacle for the Albanian courts to proceed with such a validation and recognition [emphasis added in the original text].

During the examination of the case, the appellant’s counsel stated that there is no bilateral agreement between Albania and Italy as regards the validity and enforcement of criminal judgments. They maintained that such an act would impinge upon the sovereignty of the Albanian state, which is exercised by the Parliament through the ratification of an international or bilateral agreement. This claim is unfounded. The Albanian Parliament manifested its sovereign will through the enactment of the CCP, whose provisions at issue should be applied in accordance with their meaning and the unified interpretation of the Supreme Court as outlined above.

It must be underlined that in the absence of signed and ratified instruments, the generally recognised norms of the international law may apply in accordance with the principle of good will and reciprocity. Pursuant to the CCP, the Ministry of Justice is responsible for jurisdictional relations with foreign authorities, including the Italians.

According to Article 512 of the CPP, it is within the discretion of the said Ministry as a manifestation of the political will of the Albanian State, to request the validation before a court of a foreign judgment. The Court shall not examine this kind of discretion. It shall only examine whether the request has been made by the competent authority in accordance with the law and whether the documentation is complete.”

In the retrial proceedings before the District Court, the applicant claimed that there had been no request by the Italian authorities for the validation of the Italian criminal judgment against him, having also regard to the Italian authorities’ letter of 28 March 2000 (see paragraph 20 above). Furthermore, he added that there was no bilateral agreement between the two States for such a validation to take effect. The applicant also relied on the fact that he had not given his consent for the validation.

On 20 May 2003 the District Court, sitting as a bench of three judges, relied entirely on the judgment of the Supreme Court of 30 January 2003. It held that the sentence imposed by the Milan Assize Court of Appeal was compatible with the provisions of the Albanian CCP as amended by Law no. 8813 of 13 June 2002. It ruled that the applicant should serve cumulative sentence of life imprisonment in Albania on a count of murder and a count of illegal possession of firearms.

The presiding judge, E.K., expressed a partly dissenting opinion on the above-mentioned judgment, reminding the court that the relevant statutory provisions laid down a maximum penalty of 25 years’ imprisonment instead of life imprisonment as imposed in the applicant’s case.

According to the applicant’s submissions in the present proceedings before the Court, the District Court applied those parts of Law no. 8813 of 13 June 2002 that contributed to the aggravation of his situation. Moreover, in accordance with Article 13 of the CCP as amended by the above-mentioned Law, the court should have sat in a single-judge formation in his case. Furthermore, he maintained that, having regard also to Judge E.K.’s dissenting opinion, the composition of the bench could have influenced the outcome of the proceedings.

On an unspecified date in 2003 the applicant filed an appeal, invoking the same grounds as he did before the District Court.

On 10 September 2003 the Court of Appeal dismissed the appeal and upheld the District Court’s judgment, fully relying on the Supreme Court’s judgment of 30 January 2003.

The applicant noted that at the last hearing of the appeal proceedings, Judge Sh.B., who had presided over the trial until that moment, had been substituted by Judge D.B. without a formal decision.

The applicant produced to the Court two Court of Appeal judgments which have the same text but were delivered by two different benches: the first by a bench presided over by Sh.B. and the second by another bench presided over by D.B.

On 9 October 2003 the applicant lodged an appeal with the Supreme Court. He relied on almost the same grounds of appeal as he did before the District Court and the Court of Appeal. Moreover, the applicant challenged the application of the generally recognised norms of international law as inadequate and imprecise.

On 30 January 2004 the Supreme Court dismissed the applicant’s appeal as the grounds of appeal fell outside the scope of Articles 432 and 448 § 2 of the CCP (see paragraphs 82 and 83 below).

In April 2004 the applicant appealed to the Constitutional Court challenging the Supreme Court’s judgments of 30 January 2003 and 30 January 2004. He alleged that the proceedings had been unfair in various respects. In particular, he complained that the criminal proceedings had been in breach of the CCP’s requirements as laid down in Articles 13 (composition of courts), 514 (sentenced persons’ consent) and 512 (for the validation and enforcement in Albania of a sentence imposed by a foreign authority, a request addressed by the foreign authority and a valid international and/or bilateral agreement had to be in force in both countries). The applicant maintained that no request for the validation of the sentence had been addressed by the Italian authorities to the Albanian Minister of Justice, nor had there been any international convention in force between the countries at the material time.

On 12 July 2004 the Constitutional Court dismissed the applicant’s appeal. It found the Supreme Court’s judgments of 30 January 2003 and 30 January 2004 constitutional. Moreover, it held that even though the composition of the District Court’s bench of 20 May 2003 was in breach of the law, it did not render the process unconstitutional as a whole. As regards the existence of two judgments delivered by different benches of the Court of Appeal on 10 September 2003, the Constitutional Court noted that there was only one judgment in the case file, which corresponded to the bench that had decided the case.

The judgment stated, in so far as relevant, as follows:

“The Constitutional Court considers that the arguments raised in the Supreme Court’s, Joint Benches, judgment [of 30 January 2003] are not in breach of the Constitution or [international] conventions. The mutual recognition [validation] of court judgments serves to strengthen legal cooperation between States and the achievement of certain objectives in relation to the freedom of liberty, security and justice. The principle of reciprocity presupposes the application of mutual and legal instruments in inter-state relations. In international law, reciprocity is defined as the right to equality and mutual respect amongst countries. International criminal doctrine and case-law have confirmed that cooperation amongst countries can occur even in the absence of bilateral treaties, on the basis of the principle of reciprocity.

As a rule, the principle of reciprocity applies through international instruments such as treaties and agreements, which envisage mutual rights and obligations. But, in exceptional cases, in the absence of such agreements, the States are not precluded from directly applying the principle of reciprocity, the generally recognised norms of international law and good will. Their application is in the interest of strengthening the States’ cooperation in the fight against organised crime and criminality.

The Constitutional Court notes that the judgment of the Supreme Court, Joint Benches as regards Articles 512 and 514 is not unconstitutional. They [the Supreme Court] rightly concluded that there was no conflict between those provisions and the international conventions’ provisions. The domestic provisions should apply in accordance with the interpretation made by the [Supreme Court] Joint Benches.

(...) It may be understood (...) that the request for the validation of a foreign court judgment may be made even in the absence of an agreement, on the basis of good will, generally recognised norms and the principle of reciprocity.”

On 24 September 2003, 13 January 2004 and 16 February 2004, in view of the deterioration in the applicant’s health, his representative and his father requested the Ministry of Justice and the prison authorities to allow him to be examined by appropriate doctors.

From 23 August 2004 to 31 August 2004 the applicant underwent in-patient treatment and examinations at Tirana Prison Hospital. During that period an initial magnetic resonance imaging (MRI) scan was carried out. He was diagnosed as suffering from multiple sclerosis (MS). The doctors reported that, even when the disease was quickly detected and treated, it was capable of causing shock, organ damage, permanent disability or death.

On 29 September 2004 a second MRI scan was carried out.

On 5 October 2004 the applicant’s representative informed the Registry that the applicant’s state of health had deteriorated and that he consequently needed further treatment and an essential medical examination by specialist neurologists. He filed two reports regarding the applicant’s state of health, which the doctors reported had worsened.

On 7 January 2005 Tirana High Security Prison requested authorisation from the Tirana prosecutor’s office for medical examinations at Tirana Prison Hospital in respect of the applicant and eight other inmates.

On an unspecified date in January 2005 the Tirana prosecutor’s office gave its approval in relation to the other eight prisoners and rejected the request concerning the applicant, stating that it was not competent to rule on his transfer from prison. It designated the General Prosecutor’s Office as the competent authority.

On 13 January 2005 Tirana High Security Prison reiterated its request to the General Prosecutor’s Office concerning the applicant’s medical treatment, but received no response. On 17 January 2005 the prison requested the Ministry of Justice’s General Prison Unit to designate the competent authority to decide on the applicant’s transfer for medical purposes.

On 16 February 2005 the applicant initiated criminal proceedings against the Tirana prosecutor’s office, complaining that its neglect in ensuring his medical care had contributed to the worsening of his health, which constituted discrimination vis-à-vis those prisoners who had been allowed to have medical treatment.

On 26 February 2005 the applicant was transferred to Peqin Prison, a high-security prison located approximately 100 km from Tirana Prison Hospital and detained under a high-security regime.

From February 2005 onwards the applicant was refused the opportunity to meet his lawyers and have any other contact with them.

On 15 April 2005, following repeated requests by the doctors of Peqin Prison, the applicant was sent to Tirana Prison Hospital for a medical examination. Following consultations among the doctors of that hospital and Tirana Civil Hospital on 19 April 2005, the applicant’s diagnosis was confirmed and they concluded that it was imperative for his health that he be treated with interferon-beta.

In a letter of 23 May 2005 the applicant’s representative informed the Registry that from April 2005 the prison authorities had suspended the applicant’s medical treatment, contrary to the doctors’ opinions, and that he was treated with vitamins and anti-depressant drugs.

In a letter of 28 June 2005 the applicant’s representative informed the Registry that without a court decision, the applicant had been placed under the special prison regime provided for in section 43 of the Prisoners’ Regime Act, which derogated from the conditions for ordinary detention laid down in the Act.

On 4 November 2005, following persistent requests by the applicant, the General Directorate of Prisons assessed him and reported on the medical treatment he was being given, finding that he was being treated mainly with drugs prescribed to cure rheumatism.

In 2005 the applicant initiated several sets of criminal proceedings against the Head of Tirana Prison Hospital, complaining of negligence in the provision of medical care to him. On unspecified dates the General Prosecutor’s Office dismissed his applications, and appeals by the applicant against the prosecutor’s decisions are still pending before the domestic courts.

From 21 to 24 February 2006 the doctors confirmed that the applicant suffered from multiple sclerosis. They reported deterioration in the applicant’s health, caused by the total lack of medical treatment for over two years. Fearing for his life, they strictly recommended that the applicant immediately receive adequate medical treatment.

In response to the applicant’s request of 3 January 2008, the President of the Chamber decided, on 10 January 2008, to indicate to the Albanian Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should immediately be transferred to a civilian hospital in order that a medical examination of his condition can be carried out and that he can be given the treatment appropriate to his condition.” The President also decided to request the Government to immediately inform the Court of any decision to retransfer the applicant to Peqin High Security Prison, attaching any relevant medical certificate supporting his retransfer.

In the afternoon of 10 January 2008, given that it was the first time that an interim measure was being applied in respect of Albania, the Registrar of the Fourth Section, (“the Registrar”), spoke to the Government’s Agent over the telephone and officially notified the content of the interim measure and the importance of complying therewith. The Government’s Agent was informed that a copy of the notification of the indication under Rule 39 would be subsequently sent by facsimile.

Several attempts to send the notification by facsimile were unsuccessful in the evening of 10 January 2008. On the morning of 11 January 2008, having regard to the recurring problem with the facsimile, a scanned copy of the notification was sent by electronic mail to the Government Agent who acknowledged receipt thereof (also via electronic mail). On the same morning, the Government’s Agent informed the Court in a telephone conversation that she had urgently contacted the Ministry of Justice, the Ministry of Health, the General Prosecutor’s Office and other responsible state institutions in order to comply with the Court’s interim measure. In their written submissions, the Government confirmed the above statement.

From 11 January to 22 January 2008 the Government did not provide any information concerning any measures taken to comply with the Court’s interim measure of 10 January 2008.

On 23 January 2008 the applicant informed the Court that he had not yet been transferred.

On 24 January 2008 the applicant’s letter was forwarded to the Government, drawing their attention to the fact that a failure to comply with an interim measure could give rise to a violation of Article 34 of the Convention.

On 25 January 2008, following an order of the General Directorate of Prisons, the applicant was transferred to Tirana Prison Hospital with a view to being taken to hospital for the conduct of medical examinations. On the same day the applicant refused to be transferred to hospital and started a hunger strike. He alleged that the authorities had to provide him with the appropriate treatment instead of conducting medical examinations.

On 28 January 2008, the Registrar made several calls to the applicant’s representative and to the Government Agent. The Registrar urged the applicant to end the hunger strike and to comply with the Court’s interim measure about his transfer to hospital, where a medical examination of his situation would be conducted. The Registrar also called upon the authorities to comply with the Court’s interim measure and to refrain from any use of force, as alleged by the applicant.

On the same day, the applicant was transferred to the neurology ward of Tirana University Hospital Centre’s (Qendra Spitalore Universitare – “the UHC”) where he had specialised medical examination.

On 29 January 2008, following a letter of the UHC that the applicant’s presence was no longer required, the applicant was transferred to Tirana Prison Hospital.

On 30 January 2008 the Government provided the Court with a copy of the applicant’s medical file following the medical examinations of 28 January 2008. A doctors’ panel had concluded that the applicant suffered from multiple sclerosis. The doctors’ panel recommended that the applicant be treated with interferon beta with a view to stabilising his health and preventing progression of the disease. The doctors were unable to accurately describe the progression of the disease over the years, as he had not been under medical care. They expressed the view that the applicant’s health did not present any urgency and, under these circumstances, patients were usually treated as out-patients without any need to be hospitalised.

On 14 July 2008 the Government confirmed that the applicant’s treatment with interferon beta had started on 17 June 2008 in accordance with the doctors’ panel’s conclusions. The treatment was being administered every other day and it would appear that the applicant’s health has been stable ever since.

On 16 September 2008 the President of the Chamber decided to refuse the applicant’s request for the application of a renewed Rule 39 indication. The Government, however, were requested “to inform the Court on a regular basis about the applicant’s state of health and to provide medical evidence of this, bearing in mind that the applicant’s health conditions may necessitate specialised assistance while in prison.”

On 12 March 2009 the Government informed the Court that the applicant has been regularly provided with interferon beta and other medicines appropriate to his health.

Article 4 §§ 1 and 2 of the Constitution provides that the law constitutes the basis and delimits the boundaries of the activities of the State and that the Constitution is the highest law in the Republic of Albania.

Article 5 of the Constitution provides that the Republic of Albania applies international law that is binding upon it.

The Code of Criminal Procedure, in its relevant parts, provides as follows:

Article 13 § 2, point (ç), of the CCP, as amended by section 1 of Law no. 8813 of 13 June 2002 (in force from 11 July 2002), provides that “...district courts shall sit in a single-judge formation in cases concerning cooperation with foreign authorities...”.

Article 432 provides that an appeal to the Supreme Court should be made when: (a) the criminal law has not been respected or has been applied erroneously; (b) there have been breaches resulting in the nullity of the court’s judgment in accordance with Article 128 of the CCP; (c) there have been procedural violations that have affected the adoption of the decision.

Article 448 § 2 provides that a judgment of retrial proceedings may be appealed to the Supreme Court only in so far as it does not relate to any grounds that were previously decided upon by the Supreme Court.

Article 512, on the validity in Albania of foreign sentences, provides that the Ministry of Justice, when informed of a sentence imposed by a foreign authority concerning Albanian citizens, must send the prosecutor’s office a copy of the judgment and any relevant documents. The Ministry of Justice requests the validation of a foreign sentence when it considers that in accordance with an international convention, the decision in question must be executed or any other effects of it must be recognised in Albania.

Article 514 of the Code of Criminal Procedure, before being amended by Law no. 8813 of 13 June 2002, provided that a foreign court’s sentence could not be recognised and enforced in Albania in any of the following circumstances: (a) the sentence had not become final according to the laws of the State in which it had been imposed; (b) the sentence contained provisions which ran counter to the principles of the rule of law as applied by the Albanian State; (c) the sentence had not been imposed by an independent and impartial court or the defendant had not been summoned to appear before the trial or had not been granted the right to be questioned in a language that he understood and to be assisted by a defence lawyer; (ç) there were justified reasons to believe that the proceedings had been influenced by considerations regarding race, religion, sex, language or political beliefs; (d) the act for which the sentence was imposed was not provided for as a criminal offence in Albanian law; (dh) a final decision had been delivered or criminal proceedings were in progress in Albania in respect of the same act and against the same person; or (e) the sentenced person or his representative had not granted his consent.

Section 64 of Law no. 8813 of 13 June 2002 (in force from 11 July 2002) provides: “Article 514 § 1, point (e), of the CCP shall be abrogated.”

Article 78 of the Criminal Code, as in force at the time when the offence was committed in 1997, provided that a person convicted of premeditated homicide should be sentenced to a term of fifteen to twenty-five years of imprisonment and, where there were aggravating circumstances, to life imprisonment or death.

Taking into consideration the revival of blood feuds in the north and the north-east region of Albania, Law no. 8733 of 24 January 2001, which came into force on 13 March 2001, amended inter alia Article 78 of the Criminal Code by adding a new paragraph that regulates revenge killings in order to stop the total destruction of families. The new provision, in force at the time the Italian sentence was converted by the Albanian courts, reads as follows:

“1. A person convicted of premeditated homicide shall be sentenced to a term of fifteen to twenty-five years of imprisonment.

A person convicted of premeditated homicide because of an interest or/and vendetta shall be sentenced to a term of between twenty years and life imprisonment.”

Section 33 of the Prisoners’ Rights Act, as in force at the material time, provided that, in the absence of medical treatment in the prison’s health unit and when necessary, the prisoner may be transferred to a prison hospital or other medical institution, upon the order of the prosecutor. The prisoner has the right to appeal within five days to the district court against the prosecutor’s refusal [to transfer him to a hospital].

The Convention entered into force in respect of Albania on 23 January 2004. It was signed by Italy on 4 February 1971 and for the time being has not been ratified. Thus, it was not in force in respect of either country on 20 May 2003, when the applicant was convicted by the Tirana District Court. Its relevant provisions read as follows:

“1. A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter State.

This competence can only be exercised following a request by the other Contracting State.”

The objectives of the 1983 Transfer Convention, including its Additional Protocol of 1997, are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. The Preamble to the Transfer Convention states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. Its provisions, in so far as relevant, read as follows:

Article 1 – Definitions

“For the purposes of this Convention:

c. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred;

d. “administering State” means the State to which the sentenced person may be, or has been, transferred in order to serve his sentence”.

Article 3 – Conditions for transfer

“1. A sentenced person may be transferred under this Convention only on the following conditions:

a. if that person is a national of the administering State;

The Transfer Convention entered into force in respect of Albania on 1 August 2000 and in respect of Italy on 1 October 1989. The Additional Protocol has not been ratified to date by either country.

The CPT visited Albania in 2005, 2006 and 2008. In 2005, the delegation inspected, inter alia, Tirana Prison Hospital.

In this report (CPT/Inf (2006) 24) the CPT found that the health-care facilities, “were of a very poor quality in all the establishments visited. For instance, a piece of equipment as basic as weighing scales was absent everywhere. Needless to say, such a state of affairs also hampers the adequate oversight of the nutrition provided in the establishment, as well as the supervision of hunger strikes which occurred from time to time. It is also of concern that no running water was available in the dentist’s surgery at Tirana-Vaqarr Prison. Further, both at Tepelena Prison and Tirana-Prison No. 313, the state of cleanliness and hygiene in the doctors’ consultation rooms left much to be desired.”

The CPT further noted “a number of serious shortcomings as regards the medical screening upon admission in the prisons visited (in particular, examinations not being carried out systematically or only in a very perfunctory manner).” It also expressed its concern “that newly arrived remand prisoners were not systematically screened for transmissible diseases (such as hepatitis B and C, HIV, syphilis and tuberculosis), and that no information was being provided to inmates regarding the prevention of such diseases”.

The CPT noted that at Prisons nos. 302 and 313 a number of medical files were not available. When “found”, those files contained nothing other than the names of the prisoners concerned.

As regards the treatment of patients with serious medical conditions, the CPT observed that a number of individual cases illustrated alarming shortcomings in some of the establishments. The relevant excerpts state:

“At Tepelena Prison and Tirana-Vaqarr Prison, the delegation met two prisoners who, due to their health condition (severe psychosis and an advanced stage of cancer, respectively), were in urgent need of specialised treatment in a hospital setting. However, no initiatives had been taken to transfer the prisoners concerned to the Prison Hospital. During the end-of-visit talks, the delegation requested the Albanian authorities to take urgent measures in respect of the two above-mentioned cases. In their letter of 14 July 2005, the Albanian authorities confirmed that both prisoners had been transferred to the Prison Hospital.

At Tirana-Vaqarr Prison, the delegation met a prisoner suffering from diabetes who was not receiving a special diet. The CPT must stress that such a state of affairs amounts to a denial of treatment. Further, in the case of another prisoner at Tirana-Vaqarr, who was suffering from tuberculosis, the delegation observed that there had been a considerable delay in transferring the prisoner concerned to the Prison Hospital. Further, no protective measures had been taken during his transfers to the hospital, in order to avoid other prisoners or members of staff becoming infected with the disease.”

The CPT recommended that the Albanian authorities review the provisions of health care in the establishments visited.

In this report (CPT/Inf (2007) 35) the CPT noted the domestic authorities’ failure to implement their recommendations, particularly as regards the medical examinations on admission to pre-trial detention facilities.

The CPT noted that “no improvements had been made as regards the general provision of health care in either establishment visited, notwithstanding various recommendations made by the CPT in the reports on the 2003 and 2005 visits”.

As regards one of the pre-trial detention facilities that the CPT visited, it noted that “conditions in the health-care facilities were appalling. The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided; the delegation observed itself, on the spot, the case of one inmate in need of urgent medical care who had been left in a state of total neglect”.

The CPT raised the issue of long delays which had been observed in transferring inmates who were in urgent need of hospitalisation to a hospital. “The 2006 visit demonstrated that this problem had not yet been resolved. The delegation was informed that general hospitals were reluctant to admit detainees from pre-trial detention facilities, due to security considerations, while transfers to the Prison Hospital in Tirana were reportedly difficult, because the Prison Hospital falls under the authority of the Ministry of Justice”.

In this report (CPT/Inf (2009) 6) the CPT found that the provision of general health care appeared on the whole to be adequate in most of the establishments visited, despite situations which gave rise to particular concern. It also noted some improvements as regards medical examinations on admission, even though that “remains a particularly problematic area in the Albanian prison system”.

The CPT found that there had been shortcomings in the provision of specialist care, notably the provision of dental care and psychiatric care.