Table of Content

• Comments
  • Purpose
    1. Article 352, which should be read in conjunction with Articles 350, 351 and 353 of Criminal Procedure Code, primarily aims at guaranteeing the right of the defendant to be tried in his presence and to be defended by himself or by way of a legal representative of his choice. This right, despite being non-absolute, shall be guaranteed by the Constitution in article 31(ç) and the international legislation, such as International Convention on Civil and Political Rights (hereunder ICCPR) and European Convention of Human Rights (hereunder ECHR). In addition, Article 352 aims at guaranteeing the right of the defendant to be heard before being tried, and this right is foreseen by the ECHR and the Constitution in article 33(1). The purpose of Article 352 exceeds guaranteeing this right. This Article has a direct impact on the judicial economy, since it provides for the court to continue with the adjudication in the absence of the defendant, in the event he/she is not found, may not be extradited or evades justice. In the latter case, article 352 is in line even with article 33(2) of the Constitution.
  • Scope
    2. Article 352 regulates cases of trial in absentia of the defendant, the presence of the defence lawyer in the trial in absentia, the procedural guarantees in case of absolute impossibility to appear, actions that the court must and may take when the defendant appears once absence is declared as well as the procedural guarantees of the child defendant who fails to appear.
  • Comments
    3. Article 352 paragraph 1 contains a triple obligation on the court. At the outset of the judicial examination, the court shall verify the presence of parties. The court must check ex officio whether notification is made according to the rules foreseen in articles 140-142 Criminal Procedure Code, as well as whether the defendant has been summoned of the trial in person. Second, the court orders suspension of the trial if it is concluded that the defendant at large has not been notified personally. The defendant may have been declared not found as of the stage of preliminary investigation according to the provisions of article 141 of the Criminal Procedure Code. In such cases, the decision of failure to find them shall cease effects upon termination of preliminary investigation and consequently, the court, upon initiation of the judicial review, shall order the judicial police to search the defendant again. This constitutes the third obligation in this framework. Suspension, which aims at searching the defendant, shall last not more than one year, unless there is information of the location of the defendant. Therefore, trial may be re-opened one year after suspension or earlier. In any case, the court shall order repeating the notification.

     

    4. Article 352 paragraph 1 must be read in conjunction with the provisions of the two preceding articles, article 350 and 351 of the Criminal Procedure Code. These provisions, in general, create a new approach towards the absence of the defendant compared to the previous regime on trial in absentia. The lawmaker’s aim, through the new provisions, is to give priority to the appearance of the defendant in trial and avoid the formal approach of summoning of the defendant as well as the declaring of his absence, automatically, as it is already the practice. Unlike the old provisions, the new ones put emphasis on the exhaustion of all the possibilities of summoning and appearance of the defendant.

     

    5. Article 352 paragraph 1 is addressed only to the defendant at large, who has not been found and who consequently, has not been notified personally. This is understandable because the defendant in remand prison may always be located and the cases when he may not or does not want to appear are governed by the provisions of article 350 and 351 of the Criminal Procedure Code.

     

    6. Because of failure to find the defendant after initial suspension of the trial, absence shall be declared in hearing session. The decision to declare absecnce is motivated at the end with the final decision. Consquently, the declaration of absence can be appealed together with the final decision. The defendant shall be represented by the defence lawyer. The lawyer may be but the ex officio defence lawyer, because the defendant who has not been found has not been informed of the trial against him and consequently he may not have a lawyer of his own choice. Eventually, it has been observed that often the relatives of the defendant who is tried in absence choose the defence lawyer, even when the latter has not been effectively notified of the process being conducted against him.[1] The HC has unified its practice in this respect, by considering ex officio defence lawyer the defence lawyer chosen by the family members of the defendant who is not found.[2] This implies that “the defence lawyer chosen by the family members shall be accepted by the court but with the powers of the ex officio lawyer, which are the procedural rights of the lawyer in criminal process except for the rights recognized by the law as exclusive personal rights of the defendant”.[3] The ex officio defence lawyer shall be legitimised to lodge claims and objections related to the first instance trial of the defendant who is not found. All the notifications of the prosecuting authority on the defendant shall be communicated to the ex officio lawyer who represents the defendant at first instance trial. The defence lawyer shall cease to be party in litigation once the decision is rendered. Consequently, he shall no longer be entitled to the rights recognized to the parties in criminal proceedings.[4] This implies that the ex officio defence lawyer of the defendant who is not found (including the lawyer assigned by the family members) may not exercise the right to appeal.[5] The reason for this is that the right to appeal pertains to the defendant, who may delegate such right personally and explicitly to the lawyers (be it even by authorising a relative).[6] Of course this is not possible in the case of the ex officio defence lawyer, who is unknown to the defendant because the latter is unaware of the proceedings against him. The above-mentioned development in the case-law is reflected even in the amendments to article 410 paragraph 2 of the Criminal Procedure Code. Based on the new provisions, in case of trial in absentia, the defence lawyer may appeal only when duly authorised by the defendant, provided with an act of representation issued in the format foreseen by the law, or upon declaration in a court hearing.

     

    7. Article 352 paragraph 2 foresees that the court declares absence if it is proven that the defendant is escaping justice. At this point, the case-law follows the ECtHR standards by quoting directly its judgements.[7] According to the HC “[...]the mere fact that the defendant cannot be found, does not serve to discharge the burden to the state authorities to make possible the effective notification of the charge to the defendant. Therefore, it may not be presumed, especially for the defendant who cannot be found, that he has renounced the right to attend trial.”[8] It is up to the prosecuting authorities to prove that the defendant is evading trial.[9] Unlike the above-said, the defence lawyer representing the defendant who evades justice, may have been assigned even by the defendant or the family members (who express the will of the defendant), considering that evading trial implies awareness of the process against him. Therefore, the defence lawyer may have been assigned even ex officio. In such case, not necessarily has the defendant accepted this choice, because not necessarily has he any contacts with the defence lawyer. However, all the notifications of the prosecuting authority on the defendant shall be served to the lawyer and it is presumed that the defendant who evades justice has been informed thereof. Moreover, at first instance trial, the defence lawyer is legitimised to lodge claims and objections related to that instance of trial and the defendant is considered to have been heard. Such approach is in line with article 33(2) of the Constitution which stipulates that the defendant evading justice may not be granted the right to be heard.

     

    8. When it is proven that the defendant is abroad and extradition is impossible, the court may declare absence according to article 352 paragraph 3. Normally, in such cases, the defendant shall be notified according to the provisions of article 142 paragraph 1 and 2 of the Criminal Procedure Code. According to this article, first the defendant through a registered mail is invited to declare or indicate, within three days of acknowledgement of receipt, an address in the Albanian territory. If the defendant declares or indicates an address, the summons shall be considered to have been served at this address.[10] Otherwise, he shall be notified through the lawyer. If the defence lawyer is assigned ex officio or by the relatives, it is up to the court to check whether the defendant has been effectively informed of the trial against him. According to the provisions of article 351 paragraph 1 of the Criminal Procedure Code, the court considers the defendant who is abroad to have been summoned if the procedures of article 142 paragraph 1 and 2 of the Criminal Procedure Code are followed and consequently, it may request his mandatory escorting which in this case may be done only through extradition.

     

    9. Generally, extradition is governed by the multilateral or bilateral conventions/agreements. Extradition is impossible in absence of a legal basis (unless the principle of reciprocity is applied). Moreover, generally extradition to Albania may be refused when: 

    - the criminal offence of which the defendant is accused, has not been foreseen as such by the legislation of the requested state (where the defendant is located);

    - the defendant has committed another criminal offence in the requested state and he is being proceeded against or serving punishment for that offence in the requested state;

    - the defendant has been proceeded against once over the same facts;

    - the defendant is a citizen of the requested state and the latter does not allow extradition of own nationals;

    - the criminal offence has not been prescribed under the law of the requested state;

    - the requested state has issued an amnesty for the criminal offence;

    - proceedings has initiated against him or he has been tried against in the requested state even if the offence has been committed in Albania;

    - there are grounds to think that the requested person shall be subject to persecution or discrimination due to race, religion, sex, citizenship, language, political belief, personal or social state or cruel, inhuman or degrading punishment or treatment or acts which constitute violation of fundamental human rights;

    - the criminal offence over which he is requested is a criminal offence according to the military law;

    - the criminal offence is of a political nature or it results that the defendant is requested for political reasons;

    - the nature of the criminal offence is that of a financial criminal offence.[11]

     

    10. Where extradition is impossible for the proceedings, it may not be possible for the execution of the decision punishing the defendant in absentia. Under these conditions, there is nothing else left but the execution of the Albanian judgement in the foreign state, according to the international rules in force on execution of foreign criminal judgements[12] and article 519 paragraph 3 of the Criminal Procedure Code. The EU Member States and Council of Europe member states, including the parties to the European Convention on the International Validity of Criminal Judgements, before executing a foreign criminal judgement rendered in absentia, must provide to the convicted person the possibility to oppose the judgement in the worst case scenario,[13] or re-open trial in the presence of the defendant in the best case scenario.[14] Therefore, where extradition is impossible, maybe it is more relevant to attempt initially the transfer of proceedings according to the international rules in force.[15]

     

    11. Following a literary reading of article 352 paragraph 3 it may be concluded that the defendant who is abroad and who may not be extradited, is not represented by the lawyer in case absence has been declared. However, article 49/a paragraph 1 letter “d” foresees mandatory defence of the defendant declared in absentia. Therefore, even the defendant declared in absentia, who is abroad and who may not be extradited, must be represented by the lawyer.

     

    12. The decision declaring absence is invalid when it is proven that such absence is due to his/her absolute impossibility to appear. Article 350 and 351 of the Criminal Procedure Code cover cases of force majeure, causes of failure of the defendant to appear which exempt the defendant from the responsibility, waiver of the right to be present and the cases of unduly summoning. Consequently, the absolute failure to appear in article 352 paragraph 2 implies those cases where the defendant is indeed unaware of the trial against him or is not informed on time. Invalidity of the decision declaring absence entails invalidity of the proceedings held up to that moment.[16]

     

    13. Article 352 paragraph 5 governs the actions that the court may or must take when the defendant appears after the decision declaring his absence has been announced. First, the court must revoke the decision declaring absence. At this point, the new provision is not different from the previous one. The defendant participates in the stage in which adjudication is up to that moment. But, if the judicial review is over, the defendant may request to be questioned, the hearing to be re-opened, evidence to be taken or procedural actions to be repeated. However, in addition to the questioning, the other requests are left to the discretion of the court, which approves them if it considers them necessary to take the decision. Otherwise, the previously conducted actions and evidence produced shall remain valid. At this point, the new provision is different from the previous one. First, according to the new provision, the defendant may request to be questioned if he appears once the judicial review is over, unlike the previous provision according to which he could request to be questioned before starting the final discussion. Second, according to the new provision, the defendant may request reopening of the trial, instead of only the taking or repeating of several actions or evidence. Third, the defendant according to the new provision, needs not to prove that he has been summoned unduly because of reasons other than his own fault. However, in both provisions the discretion of the court is left untouched.

     

    14. The new provision of article 352 paragraph 5 is addressed to the defendant who has not been found, who evades justice or who may not be extradited. It may be said that the last two categories have renounced their right to be present.[17] Another category of defendants who have renounced participation in trial is that which falls under the scope of article 351 of the Criminal Procedure Code. Moreover, the previous provision was addressed specifically to this category: to the defendant who had been summoned, but who had failed to appear in trial, i.e the defendant who had renounced participation in trial. Therefore, it may be said that article 352 paragraph 5 extends the scope to cover even this category of defendants, including here even article 351 of the Criminal Procedure Code. From this perspective, the amendments which foresee the right of the defendant who has renounced participation in trial, to request reopening of the trial, depending on the discretion of the court, are in line with the ECtHR standards.[18] However, it may not be stated the same for the category of the defendant who is not found, because he has not been informed of the trial against him and consequently he has not waived of the right to be present. Therefore, the provision of article 352 paragraph 5 for this category of defendants must be interpreted in such a way so that the request to re-open trial and take evidence or repeat procedural actions, be independent of the discretion of the court.[19]

     

    15. Article 352 paragraph 6 prohibits the trial in absentia of the child defendant. This amendment fulfils the international standards on juvenile justice.[20]

     

    [1] Decision no 1, dated 10.03.2014, Ervis Nurkaj (KBGJL), para 39.

    [2] Ibid.

    [3] Ibid., par. 41

    [4] Decision no 354, dated 28.07.1999, Adriatik Gjata (KBGJL) page 3.

    [5] Decision no 1, dated 10.03.2014, Ervis Nurkaj (KBGJL), para 56.

    [6] Ibid., par.54 On the right of the defendant tried in absentia to appeal as well as on the reinstatement right see commentary of article 147 of Criminal Procedure Code.

    [7] See “Judgements of the European Court of Human Rights” on the ECtHR standards.

    [8] Decision no 1, dated 10.03.2014, Ervis Nurkaj (KBGJL), para 29.

    [9] Ibid., par.30

    [10] The wording of article 142 paragraph 2 of the Criminal Procedure Code repeats to some extent paragraph 1 of the same article. It reads: “Where the defendant is notified pursuant to paragraph 1, he shall be invited to declare or to elect the domicile in the Albanian territory. The notification effected at the declared address shall be considered accomplished” Indeed, paragraph 1 invites the defendant to declare or indicate a residence place in the Albanian territory, therefore it is no need to repeat this once again in paragraph 2. The second sentence of paragraph 2 would suffice.

    [11] See for example European Convention on Extradition.

    [12] See for example European Convention on the International Invalidity of Criminal Judgements.

    [13] See article 21-30 of the European Convention on the International Invalidity of Criminal Judgements.

    [14] See article 5(1) of Council Framework Decision on the European Arrest Warrant; see also “Judgements of the European Court of Human Rights” for the ECtHR standards.

    [15] See for example European Convention on the Transfer of Proceedings in Criminal Matters; see also rule (iv) of Resolution (75)11 of the Committee of Ministers of the Council of Europe “On the criteria governing proceedings held in the absence of the accused”

    [16] See Halim Islami, Artan Hoxha, Ilir Panda, Criminal Procedure, Morava Publications 2006, page -474.

    [17] See paragraph 8 above on the defendant who is abroad.

    [18] Judgements of the European Court of Human Rights

    [19] Ibid.

    [20] See “International legislation”.

  • Historic context
    16. The group of experts being involved with the Assembly in the context of the justice reform found out that the provisions regulating the trial in absentia were not in full compliance with the standards of the case law of the European Court of Human Rights.[1] In this context, it was considered necessary to change Article 352 of the CPC. 

     

    [1]Analysis document of the justice system in Albania, June 2015, page 146

    http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, accessed on 08.08.2017.

  • International acts
    17. Council Framework Decision on the European Arrest Warrant, article 5 paragraph 1 foresees assurances for the surrender of a person based on the European Arrest Warrant, issued for the purposes of executing a sentence or a detention order (imprisonment) imposed by a decision rendered in absentia and if the person concerned has not been informed thereof. In such case the issuing state (the state requesting surrender) must give an assurance deemed adequate by the executing state to guarantee the person will have an opportunity to apply for a retrial of the case and to be present at the judgement.

     

    18. Section 3 of European Convention on the International Validity of the Criminal Judgements which concerns the recognition of criminal judgements rendered in absentia. This section foresees several assurances for the defendant who has failed to appear in trial against him in the requesting state. If the requested State sees fit to take action on the request to enforce a judgement rendered in absentia, it shall cause the person sentenced to be personally notified of the decision.[1] The person in question, after service, has the right to oppose the judgement rendered in absentia against him. The opposition may be lodged with the requested or requesting state. In this context, the Convention foresees strict rules about effective service, the right to a defence lawyer and appearance of the person opposing the decision or his defence lawyer.[2] If the person sentenced in absentia lodges no opposition, the decision shall, for the entire purposes of this Convention, be considered as having been rendered after the hearing of the accused.[3] National legislations shall be applicable in the matter of reinstatement for opposition purposes[4]

     

    19. UN Convention on the Rights of the Child guarantees the right of the child to be heard and take part in trial effectively.[5] Moreover, the criminal process against the child must be conducted in a friendly environment which enables participation of the child.[6] All these lead to the conclusion that the child must be present in trial, because none of these guarantees would be fulfilled if the child were to be tried in absentia. Furthermore, the best interest of the child may not be determined unless the child is heard.

     

    [1] Article 23.

    [2] Article 24-27.

    [3] Article 29.

    [4] Article 30.

    [5] Article 12 and 13.

    [6] Article 14.

• International standards/International references/Best examples

  Reports, opinions, recommendations and statements 

  20. Committee of Ministers of the Council of Ministers has adopted Resolution (75)11 “On the criteria governing proceedings held in the absence of the accused”, recommending to the member states to consider nine minimum rules.^[1]

   

  Judgements of the European Court of Human Rights 

  21. ECtHR has a consolidated case-law on trial in absentia, which according to the court is in itself incompatible with article 6 ECHR. However, justice shall be denied to a person punished in absentia when he may not have the right to re-open trial from the start, i.e judicial review of the case and charge against him, when it may not be proven that he has renounced the right to be present or he is evading justice (Seldovic; Colozza; Somogyi; Medenica).[2]

   

  22. It may not be presumed that a person has waived of the right to appear or is evading justice, just because that person cannot be found (Sejdovic; Colozza).[3] Moreover, the burden of proof lies with the authorities which must assess whether the defendant has relevant reasons to be absent and whether there is anything else in the case file to justify the finding that the defendant has not been present for reasons which go beyond his control/will (Sejdovic; Medenica).[4] This applies especially if the defendant tried in absentia requests the trial to be re-opened from the beginning.[5]

   

  23. As above-said,[6] the HC follows the ECtHR standards by quoting directly its judgements. According to the HC “[...]the mere fact that the defendant cannot be found, does not serve to discharge the burden to the state authorities to make possible the effective notification of the charge to the defendant. Therefore, it may not be presumed, especially for the defendant who cannot be found, that he has renounced the right to attend trial.”[7] It is up to the prosecuting authorities to prove that the defendant is evading trial.[8] Në këtë pikë praktika gjyqësore shqiptare është në përputhje të plotë me standardet e GJEDNJ-së.

   

  24. Article 352 paragraph 5 of the Criminal Procedure Code enables the questioning of the defendant if he appears once the judicial review is closed as well as the re-opening of the judicial review. According to the HC, it is up to the court to prove whether the defendant has been aware of the trial against him,[9] and consequently, whether he evades justice or renounces the right to participate in trial (when he is abroad or in cases foreseen by article 351 of the Criminal Procedure Code.[10] If it results that the defendant who appears was evading justice or had renounced the right to appear, then the reopening of the judicial review which is at the discretion of the court, is in line with the ECtHR standards. The reasons for this is that the ECtHR and the ECHR do not ensure the right to re-open the judicial review to the person who has waived of the right to be present or to the person who evades justice. In this framework, the Albanian legislation goes beyond the assurances of the ECHR and ECtHR. However, if the court deems that the defendant who appears was not informed of the trial against him, according to the ECtHR criteria mentioned above, he must have the right to have the trial re-opened from the start. This is an automatic right and it does not depend on the discretion of the court. Therefore, in this respect, in order to fulfil the ECtHR standards, article 352 paragraph 5 must be interpreted in such a way so that the request to re-open the trial and obtain evidence or repeat procedural actions, be independent of the discretion of the court.

   

  [1](i) no one may be tried first without having been effectively served with a summons in time. (ii) the summons must state the consequences of any failure by the accused to appear at the trial. (iii) where the court finds that an accused person who fails to appear at the trial has been served with a summons, it must order an adjournment if it considers personal appearance of the accused to be indispensable or if there is reason to believe that he has been prevented from appearing. (iv) the accused must not be tried in his absence, if it is possible and desirable to transfer the proceedings to another state or to apply for extradition. (v) where the accused is tried in his absence evidence must be taken in the usual manner and the defence must have the right to intervene. (vi) a judgement passed in the absence of the accused must be notified to him according to the rules governing the service of the summons to appear and the time-limit for lodging an appeal. Such time-limit must not begin to run until the convicted person has had effective knowledge of the judgement so notified, unless it is established that he has deliberately sought to evade justice. (vii) any person tried in his absence must be able to appeal against the judgement by whatever means of recourse would have been open to him, had he been present. (viii) a person tried in his absence on whom a summons has not been served in due and prper form shall have a remedy enabling him to have the judgement annulled. (ix) a person tried in his absence, but on whom a summons has been properly served, is entitled to a retrial in the ordinary way if that person can prove that his absence and the fact that he could not inform the judge thereof were due to reasons beyond his control

  [2] Sejdovic v. Italy, 24.03.2005, No of Application 9808/02, par.86; Colozza v Italy, 12.02.1985, No of Application 9024/80, par.29; Somogyi v Italy, 18.05.2014, No of Application 67972/01, par.66; Medenica v Switzerland, 14.06.2001, No of Application 20491/92, par.55.

  [3] Sejdovic v. Italy, 24.03.2005, No of Application 9808/02, par.87; Colozza v Italy, 12.02.1985, No of Application 9024/80, par.28

  [4] Sejdovic v. Italy, 24.03.2005, No of Application 9808/02, par.88, 103-104; Medenica v Switzerland, 14.06.2001, No of Application 20491/92, par. 57

  [5] Ibid.; see as well Colozza v. Italy, 12.02.1985, No of Application 9024/80, par. 29-32

  [6] See paragraph 7.

  [7] Decision no 1, dated 10.03.2014, Ervis Nurkaj (KBGJL), para 29.

  [8] Ibid., par. 30

  [9] The CC holds the same position, see Decision no. 30, dated 17.06.2010, High Court (Joint Chambers), Repeal of article 48, paragraph 3 and article 410, paragraph 2 of the Criminal Procedure Code as incompatible with article 43 of the Constitution of the Republic of Albania;

  [10] Eventually, even in case the defendant evades justice, it may be said that he has renounced the right to be present in trial.

• Legislative material
  No Comment
• Related articles

  Constitution: Articles 31 and 33 

  Criminal Procedure Code: Art.    142, 147; 350; 351; 358; 519.

• Sublegal acts
  No Comment
• Decisions

  Decisions of the High Court of the Republic of Albania 

  Decision no 354, dated 28.07.1999, Adriatik Gjata (KBGJL)

  Decision no 1, dated 10.03.2014, Ervis Nurkaj (KBGJL)

   

  Judgements of the European Court of Human Rights 

  Colozza v. Italy, 12.02.1985, No of Application 9024/80;

  Medenica v. Switzerland, 14.06.2001, No of Application 20491/92.

  Sejdovic v. Italy, 24.03.2005, No of Application 9808/02;

  Somogyi v. Italy, 18.05.2014, No of Application 67972/01

• Literature

  Analysis document of the justice system in Albania, June 2015, page 146

  http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, accessed on 08.08.2017. 

  Halim Islami, Artan Hoxha, Ilir Panda, Criminal Procedure, Morava Publications, 2006

• Archive
  No Comment