Applications nos. 29861/03

FOURTH SECTION

CASE OF HAXHIA v. ALBANIA (Applications nos. 29861/03)

JUDGMENT

STRASBOURG 8 October 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

HAXHIA v. ALBANIA JUDGMENT

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In the case of Haxhia v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President, David Thór Björgvinsson, George Nicolaou, Zdravka Kalaydjieva, Vincent A. De Gaetano, Paul Mahoney, judges, Markelian Koca, ad hoc judge, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 17 September 2013, Delivers the following judgment, which was adopted on that date:

PROCEDURE 1. The case originated in an application (no. 29861/03) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Ismet Haxhia (“the applicant”), on 20 July 2003. 2. The applicant was represented by Mr K. Loloçi, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Mëneri of the Albanian Ministry of Foreign Affairs and, subsequently, by Ms L. Mandia of the State Advocate’s Office. 3. Mr Ledi Bianku, the judge elected in respect of Albania, withdrew from sitting in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Mr Markelian Koça to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time). 4. The applicant alleged a number of violations under Articles 5, 6 and 7 of the Convention. 5. On 28 March 2006 a Chamber of the Fourth Section, to which the case was allocated, decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

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THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1954 and is currently serving a sentence of imprisonment in the prison of Peqin. At the time of the events described below, the applicant was the head of the traffic police at the police commissariat of Bajram Curri, a city in the north east of Albania. A. Country background 7. In 1997 the country suffered a total breakdown of governmental institutional structures as a result of the collapse of a number of so-called “pyramid schemes”. Armories were looted by civilians, public order collapsed and the country was plunged into anarchy and chaos for a number of months. 8. In 1998 public order was marginally restored but security problems continued, particularly in the north-eastern part of the country, including Bajram Curri. B. The assassination of a Member of Parliament 9. On 12 September 1998 at about 9.15 p.m. Mr Azem Hajdari, a Member of Parliament (“MP”), and his bodyguards B.C and Z.N, were shot as they came out of the Democratic Party (“DP”) headquarters in Tirana. Mr Hajdari and B.C died the same day in hospital. The second bodyguard Z.N was seriously injured. 10. Mr Hajdari was a leading member of the DP which was one of the two main political parties in Albania and, at the material time, in opposition. His assassination caused a rapid build-up in tension and on 13 September 1998 protesters stormed the Prime Minister’s building. 11. Further violence erupted in Tirana during the late MP’s funeral. A general uprising ensued, during which gunmen quickly occupied the State television headquarters, Parliament and other major buildings. 12. The situation in Albania was the subject of Recommendation no. 1386 (1998) of the Parliamentary Assembly of the Council of Europe, in which the Assembly strongly condemned the political violence following the murder (see paragraph 108 below). C. The criminal investigation into the assassination 13. Following the murder, a number of investigative actions were conducted.


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14. Forensic tests were carried out at the crime scene and ballistics examinations were carried out on an automatic gun and a hand gun found at the scene. No autopsies were carried out. 15. In the days following the shooting the police obtained information from five witnesses. It would appear that one of the witnesses, Mrs A.R., stated that she had had a clear view of the killer and would be able to recognise him. Another witness said that he had seen two men get out of a police car (a green Mercedes Benz 250) and shoot the MP and his bodyguards. Moreover, he maintained that another man in the driver’s seat had waited in the parked car and had then got out in order to drag one of the aggressors, who had been wounded in the exchange of fire, back into the car. 16. On 25 September 1998 the prosecutor questioned Z.N, the wounded bodyguard who had survived the assault. He stated that he had seen an unknown person, who had left the passenger seat of a car with a police siren on its roof, firing an automatic gun without warning. There was no mention of the applicant’s name or of his involvement in the crime. 17. On an unspecified date Z.N left the country for Belgium. 18. On 15 December 1999, following the publication of a statement made by Mr Sali Berisha, who was the DP’s chairman, in which the applicant’s name was mentioned as a participant in the MP’s murder, the applicant voluntarily decided to make a statement to the prosecutor. He stated, inter alia, that on the day of the murder he had been dining alone in a restaurant, which was located close to the DP headquarters. As soon as he heard the shots, fearing for the life of his brother, the applicant left the restaurant and made some enquiries. He later returned to the restaurant and started discussing the events with A.P and H.A (see paragraph 72 below). 19. On an unspecified date in 2000 M., who was serving a prison sentence in Regina Celli prison in Italy, was questioned by the Albanian prosecutor’s office. On 18 February 2000 M.’s arrest in connection with the murder was ordered by the Tirana District Court (“the District Court”). In very confused statements, M. admitted to having provided the car used by the murderers. 20. On 26 July 2000 M. was questioned a second time and he accused three high-ranking police officers from the city of Bajram Curri of having carried out the murder, namely F.M. who used to be the Chief of Bajram Curri police commissariat, J.M who used to be the head of public order at the same police commissariat and I.H who used to be a former bodyguard of Mr Berisha. J.M and I.H have lodged separate applications with the Court (Mulosmani v. Albania, no. 29864/03 and Izet Haxhia v. Albania, no. 34783/06). M. did not accuse the applicant of involvement in the assassination. 21. On 16 November 2000, at the request of the Albanian prosecutor, a Bruges investigating judge questioned Z.N. In his testimony, he stated that

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he saw a man coming out of the back of a black Mercedes. He was wearing a bullet-proof vest over a camouflage military uniform similar to the one worn by police officers and he had a Kalashnikov machine gun in his hands, as well as two cartridge cases glued together. Contrary to the statements he had made in the days following the murder (see paragraph 16 above), he alluded to that person as J.M. He stated that he did not know the applicant. 22. On 20 January 2001, a recidivist offender, Ç., who was serving a prison sentence in Albania, made statements before the prosecutor. He had been observing the events that led to the MP’s assassination from the firstfloor veranda of a bar, which was located close to the crime scene. He had seen the applicant in his car, a Fiat Tipo, prior to the commission of the murder. According to Ç.’s statements, F.H, J.H and N.C fired at the MP. 23. On 6 March 2001, following the applicant’s arrest (see paragraph 28 below), the prosecutor questioned him in the presence of his lawyer. He stated that on the night of the murder he was in a hotel near the DP headquarters. At the time of the shooting, he was having dinner in the hotel’s restaurant accompanied by other persons. His car was parked close to the hotel and the DP building. He denied having had any prior conflicts with the murdered MP. 24. On 10 March 2001 the prosecutor, in accordance with Article 316 § 1 (b) of the Code of Criminal Procedure (“CCP”), requested the District Court to obtain (të sigurojë provën) the testimony of Ç., who, notwithstanding the fact that he was serving a prison sentence in Albania, was presumed to be at risk of violence. The applicant’s lawyer requested time to prepare the defence. Accordingly, the court adjourned the hearing to 11 March 2001. 25. On 11 March 2001 the District Court granted the prosecutor’s request. The applicant and his lawyer attended the hearing. Witness Ç. stated that he had not received any threats, nor had any promises been made to him in exchange for his appearance at the trial. He had first made very limited statements to the prosecutor in relation to the assassination out of fear that the persons implicated in the events were police officers with previous criminal records. In his testimony, Ç. stated that it was getting dark and he was on the veranda of a bar located at the side of the DP headquarters. He saw the applicant’s car but not the applicant in person. When the MP came out of the DP headquarters, he met the applicant and both had a heated argument. He then heard a pistol shot as well as automatic gun fire. After the murder, he saw the applicant arriving in another vehicle. The applicant enquired about the murder and left the scene. 26. On 12 March 2001 the prosecutor disjoined the criminal proceedings against M. from the criminal proceedings against the applicant and the other co-accused. 27. On 31 May 2002 the prosecutor dropped the charges against M. for lack of evidence.


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D. The applicant’s arrest 28. On 13 January 2001 the prosecutor’s office issued five arrest warrants in respect of five high-ranking police officers, including the applicant, on suspicion of involvement in the assassination of the MP, the murder of bodyguard B.C as well as the attempted murder of bodyguard Z.N. 29. On 22 January 2001 the applicant was arrested. He was charged with two counts of murder under Articles 79 (c) and 78 of the Criminal Code (“CC”) and one count of attempted murder under Article 78 of the CC. 30. On 23 January 2001 the applicant was questioned by the prosecutor. He was informed of the charges against him and of the possibility of appointing a lawyer. As a result, he requested to be represented by a counsel of his own choosing. On the same day, the prosecutor requested the validation of the applicant’s arrest. 31. At the hearing of 24 January 2001 the applicant was represented by his own lawyer. He stated that he had travelled to Tirana on 11 September 1998 in order to buy spare parts for his business car. On the evening of 12 September 1998 he was having dinner in a restaurant situated close to the DP headquarters. His car was parked nearby. He maintained that the prosecutor had submitted no evidence of his involvement in the assassination. As he had been working for the last two years, there was no risk of flight. The prosecutor submitted that, since the investigation was to continue for some time, the applicant would be informed of all evidence against him in due time. The District Court confirmed the lawfulness of the applicant’s arrest and approved his pre-trial detention for an undefined period because there existed reasonable suspicion that the applicant had acted as an accomplice to the MP’s assassination (ekzistojnë dyshime të arsyeshme...ku i pandehuri...ka marrë pjesë në rolin e bashkëpunëtorit për kryerjen e krimit). 32. On 31 January 2001 the applicant lodged a direct appeal with the Supreme Court against his detention arguing that the prosecutor had not submitted sufficient and detailed evidence. 33. On 9 February 2001 the Supreme Court found that, since the District Court had not justified a risk of flight, the applicant’s initial detention was not lawful. However, the Supreme Court upheld his remand in custody given the circumstances sorrounding the commission of the crime, the danger that the offence posed to public order as well as the suspicion that the applicant had acted as an accomplice to the commission of the offence. It noted that the assessment of evidence was a matter for the merits of the case.

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E. The trial court’s proceedings 34. On 13 March 2001 the prosecutor lodged the bill of indictment with the District Court. A long list of supporting documents was attached to it. The applicant and the four co-accused were indicted with having participated in or organised the assassination of the MP and the attempted murder of civilians under Articles 78, 79 (c) and 25 of the CC. 35. On 16 March 2001 the applicant’s representative took possession of the investigation file consisting of 324 documents and 1,409 pages. 1. The applicant’s requests 36. The applicant made a number of requests at the trial. 37. On 3 April 2001 the applicant’s lawyer requested thirty days to examine the documents collected during the criminal investigation because the prosecutor had failed to disclose any information relating to the investigation. 38. On 3 April 2001 the District Court, at its first hearing, granted the applicant’s request for an extension until 13 April 2001. 39. On 13 April 2001 the applicant objected to the admission in evidence of some audio and video cassettes and of twenty-nine witnesses’ statements, whose names did not appear on the list submitted by the prosecutor, since he had not been informed of their contents. 40. On 9 September 2001 he also requested that a number of expert examinations be conducted: the inspection of two cars which had allegedly been at the crime scene, a handwriting analysis of witness Ç’s signature as well as verification of the possibility of having a clear view from a well-lit venue into a dark street with regard to witness Ç. 41. On 17 January 2002 the trial court rejected the applicant’s requests without giving reasons. 2. Witnesses’ testimonies 42. A number of witnesses were questioned by the trial court in connection with the murder, including the following: (a) Witness K.G

43. K.G used to be the acting chief of the Bajram Curri police commissariat at the time of the murder. On 23 May 2001 he testified that, upon being informed of the murder, in the evening of 12 September 1998 he called a staff meeting of the heads of units in order to reinforce the security level. The applicant was not present.


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(b) Witness M.

44. Relying on Article 509 of the CCP and the European Convention on Mutual Assistance in Criminal Matters (“the Mutual Assistance Convention”), on 23 May 2001 the prosecutor requested that M. be questioned by way of a video link from Italy. The applicant opposed this request for lack of a legal basis. 45. On 1 June 2001 the applicant requested the exclusion of the statements made by M. during the criminal proceedings from the case file. He further requested that he be extradited from Italy so that he could be physically present at the trial. Three other witnesses were heard. 46. On 21 September 2001 the court accepted the prosecutor’s request to obtain M.’s testimony by way of a video link in accordance with Article 151 § 3 of the CCP. The court also admitted M.’s statements to the case file. 47. On 29 October 2001 the court heard M. by video link. In a statement issued on the same day the applicant and another co-accused declared their intention not to attend the hearing given the lack of any legal basis for the video link. They did not authorise their respective lawyers to represent them and they reserved the right to attend other hearings. 48. During the testimony M. did not state that he had seen the applicant before or after the murder. 49. On 3 December 2001 the applicant requested the court to dismiss M.’s testimony and statements made during the criminal investigation on grounds of technical shortcomings and contradictions in his evidence. (c) Witness A.L

50. A.L was a driver at the Bajram Curri police station and on 8 May 2001 he made a statement before the prosecutor. According to the statements, A.L left on a mission to Tirana late in the evening of 10 September 1998. This was at the request of J.M who was the head of public order. No details had been given to him as to the purpose of the mission. F.H and E.H accompanied him. On the way to Tirana, A.L noticed a Fiat Tipo behind them, although he could not see its driver. When they stopped at a bar to have drinks, N.C joined them. At that point, A.L saw the Fiat driving by and noticed that the applicant was driving. Upon arriving in Tirana, after taking a nap in a hotel, A.L did not see the Fiat or the applicant in the hotel’s parking lot. A.L did not mention having seen the applicant during the remainder of 11 September or at any time on 12 September. A.L returned to Bajram Curri in the evening of 12 September; no other car accompanied them. The statement was disclosed to the accused and the court on an unspecified date in 2001. 51. On 25 July 2001 the court heard the testimony of A.L. The applicant and his lawyer attended the hearing and questioned A.L. 52. According to A.L’s testimony, on the evening of 10 September 1998 he had been ordered by J.H to prepare a police van and travel to Tirana.

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While leaving Bajram Curri, he saw that a Fiat Tipo, which was the applicant’s car, had joined the convoy of three cars. On the way to Tirana, a fourth person, N.C, joined them when they stopped at a bar for drinks. The applicant did not stop. Upon arrival in Tirana, they went to a hotel-bar where he saw the applicant’s car parked. After having rested for some hours in one of the hotel rooms, all of them, save for the applicant whose car was no longer in sight, decided to drive around the city. A.L did not state that he had seen the applicant on 12 September 1998. 53. On 26 July 2001 the applicant’s lawyer complained that the prosecutor had prevented him from preparing an adequate defence by failing to disclose A.L’s statements of 8 May 2001. The prosecutor responded that the statements had been disclosed as soon as they had been obtained. Additionally, the witness was summoned to testify before the court and questioned by the applicant’s representative. According to the prosecutor, A.L stated that he never met the applicant between 11 and 12 September, but that he had seen his car during the break on the way to Tirana and at the parking lot of the hotel-bar. He had not seen the car parked close to the Unknown Soldier’s Square on the day of the crime. The trial court rejected the applicant’s complaint. (d) Witness J.M

54. On 27 July 2001 J.M, who was one of the co-accused, gave evidence to the court. According to his testimony, at the request of F.H the two of them along with E.H left Bajram Curri on the evening of 10 September 1998 in a police van driven by A.L. While leaving the city, they had crossed the applicant who was driving in a separate car. When they reached Tirana, the applicant took another direction in order to take care of personal matters. 55. On 30 July 2001 J.M was cross-examined by all parties. (e) Witness P.G

56. On 20 September 2001 P.G testified. Although an eye-witness to the murders, she did not mention having seen the applicant at the crime scene. (f) Witness Ç.

57. On 13 June 2001 the applicant requested the court not to admit Ç.’s testimony of 11 March 2001. Since there was no legal obstacle to Ç.’s appearance at the trial and since his statements directly implicated the applicant and the other co-accused, he requested that Ç. be summoned to testify at the trial. It would appear that no decision was taken by the court. 58. On 9 November 2001 and 20 February 2002 the applicant unsuccessfully requested the court to take some investigative actions, including an examination of whether it would have been possible for Ç. to see into the darkness from a well-lit place at a distance of between 60 and 150 metres.


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59. On 17 January 2002 the court dismissed the applicant’s request for an expertise on Ç’s ability to observe details of the crime scene. 60. On 24 January 2002 the applicant’s lawyer requested that Ç. be summoned to testify. The court rejected his request as his testimony had been secured on 11 March 2001. However, on 18 February 2002 the court revoked this decision and summoned Ç. 61. On 20 February 2002 Ç. testified. He stated that, at about 9 p.m. on 12 September 1998, he had been sitting on the veranda of a café bar 60 metres away from the crime scene. Notwithstanding the fact that it was completely dark outside and raining, he saw the applicant and his car with a few other persons inside. The applicant questioned the credibility of Ç.’s statements in so far as his statements involved persons and cars not described by other witnesses at the crime scene. The applicant’s request to test Ç.’s ability to see from a well-lit veranda into a dark street was again rejected by the trial court (see also paragraphs 41, 58 and 59 above), which stated that this evidence would be examined in conjunction with the remaining evidence. 62. On an unspecified date the owner of the café where Ç. had been sitting on the evening of 12 September 1998 was questioned. He stated that on that day the café closed, as usual, at 7 p.m. The veranda was located nearly 200 metres away from the crime scene. (g) Witness Z.N

63. On an unspecified date the court obtained the written submissions of Z.N, who had been seriously wounded on the day of the assassination. He made no reference to the presence of the applicant at the crime scene. (h) Witness E.B, A.P and H.A

64. On 24 December 2001 witnesses E.B, A.P, H.A testified that, at the time of the shooting, they were having dinner with the applicant in a restaurant near the crime scene. (i) The applicant’s testimony

65. On 5 March 2002 the applicant made detailed written submissions about his movements on 11 and 12 September 1998. He stated that, at the request of his superior, he had left Bajram Curri early on the morning of 11 September 2001 by himself. Contrary to A.L’s statements, he did not know that J.M had left for Tirana on the same day. He denied having been at the hotel on the morning of 11 September as stated by A.L. 66. On 8 March 2002 the applicant testified. He stated that on 10 September 1998 he was given oral instructions to go on a mission to Tirana. However, no written order or authorisation was made. He left Bajram Curri at 2 a.m. on 11 September 1998, driving alone in his car. Had he known that J.M and three other people were driving in another vehicle,

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he would have joined them, given the volatile security situation in the region at the time. He had never been in the hotel-bar as alleged by A.L. As to his presence at N.C’s funeral, he was simply accompanying F.H and E.H at F.H’s request. 3. The parties’ final submissions 67. On 18 March 2002 the court requested the parties’ final submissions. On the same day the prosecutor made his final submissions in favour of the applicant’s conviction as charged. 68. On 10 April 2002 the applicant made his final submissions. 4. The District Court’s judgment of 29 April 2002 69. On 29 April 2002 the District Court gave judgment. It found that the applicant had aided and abetted the perpetrators by escorting them on the night of 10 September 1998 in his police car. His car had been parked on the evening of 12 September close to the crime scene and he had been spotted at the crime scene after the commission of the crime. While he was aware that F.H was sought by the police, he continued to maintain contacts with F.H and his brother and was subsequently seen at N.C’s funeral. His involvement in the run-up to the crime was proved by witnesses A.L, K.G and J.M and the applicant’s witnesses did not cast any doubt on those conclusions. The decision, in so far as relevant, reads as follows: “Another person who participated in the commission of the criminal offence is the accused Ismet Haxhia. A number of actions, which set off... with escorting the team from Bajram Curri to Tirana and, further on, to Hotel Murati where the team was put up in the afternoon of 11 September 1998, his presence at the crime scene ... together with his Fiat Tipo car ..., as well as his presence at the N.C’s family, 40 days after his death, create the conviction for the court that he acted as an accomplice, an abettor, in the commission of the crime. The above is proved by the evidence of witness A.L who was present at those events, the evidence of K.G who stated that Ismet Haxhia ... had not taken leave to go to Tirana on 11 and 12 September. His presence at the above events is also proved by the testimony of co-accused J.M. The totality of these actions, as elements of actus reus of the criminal offence, lead the court to conclude that the accused Ismet Haxhia is an accomplice, an abettor, to the commission of the crime. The witnesses called by the accused did not overturn or question his presence at those events which concerned the preparation, commission and post-event developments.”

70. The court also held that the MP had not been assassinated on political grounds, but for revenge-related purposes (hakmarrje) on account of his perceived involvement in the murder of F.H’s brother. Consequently,


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the court reclassified the charges against the applicant as premeditated murder committed on grounds of revenge under Article 78 § 2 of the CC, which had entered into force on 24 January 2001. The decision, in so far as relevant, reads as follows: “The prosecutor’s office reclassified the murder under Article 79 (c) connecting it to the fact that, during a parliamentary session, the murdered MP had accused F.H of killing [a police officer]. On that basis, [the prosecutor] determined that the motive for the MP’s murder had been his position as an MP. However, the evidence obtained at trial, the circumstances and the events leading up to the MP’s assassination proved that revenge had been an aggravating factor in the commission of the murder (vërtetojnë se vrasja është kryer për motivet ë dobëta të hakmarrjes).

71. In passing judgment on two co-accused, the court rejected the testimonies of witnesses Ç. and M. as contradictory and unreliable. The court also found J.M guilty as charged. 72. The District Court found the applicant guilty of aiding and abetting the MP’s murder under Articles 78 § 2 and 25 of the CC and acquitted him of the charges in connection with the murder of B.C and the attempted murder of Z.N. The applicant was sentenced to 20 years’ imprisonment. The decision, in so far as relevant, states as follows: “As outlined by the prosecutor, in the present case there exists simple collaboration and not a scheme of [defined] roles, duties, objectives and plans. In this collaboration, the aider and abettor ... Ismet Haxhia contributed by different means but always for the sole purpose of killing Azem Hajdari. Unless proved that there existed a detailed plan between the co-defendants and other people who are no longer alive or that there existed an oral agreement whereby everyone’s role was defined for the accomplishment of the final goal... the accused Ismet Haxhia cannot and should not be held liable for the excesses of the perpetrator. Ismet Haxhia, not being linked to [the existence of a] defined scheme and not being the perpetrator of the premeditated murder, should be held responsible only for [aiding and abetting] the premeditated murder of Azem Hajdari.”

5. Proceedings to challenge the District Court’s lack of impartiality 73. On 29 October 2001 at 10 a.m. the applicant and another co-accused alleged before the Tirana Court of Appeal (“Court of Appeal”) that the bench of the District Court was partial. They considered that this was demonstrated by the rejection of all of their motions and by the admission of unlawfully obtained evidence such as M.’s testimony (see paragraph 47 above). 74. On the same day, in the absence of the applicant and his representative but in the presence of the prosecutor, the Court of Appeal dismissed the request on the ground that it concerned the assessment of evidence which would be examined during any appeal lodged against conviction.

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75. On 9 November 2001 the applicant appealed against that decision to the Supreme Court. The appeal document submitted is dated 13 November 2001 and it bears the trial court’s stamp on the top right-hand corner. 76. On 14 January 2002 the applicant enquired about his appeal to the Supreme Court. The District Court responded that the Supreme Court had made no request for the transfer of the case file for examination. 77. The appeal was never examined by the Supreme Court, but was addressed in its decision of 14 February 2003 (see paragraph 87 below). F. The appellate courts’ proceedings 1. Proceedings before the Court of Appeal 78. On 7 May 2002 the applicant lodged an appeal against the District Court’s judgment. He maintained that the prosecutor had lodged the bill of indictment and transferred the criminal file to the trial court without having disclosed any documents. The trial court had not granted him sufficient time to examine the documents on which the prosecutor based the charges. The lack of prompt disclosure of A.L’s statements of 8 May 2001 prevented him from preparing an adequate defence; in his testimony A.L had merely stated that on the way to Tirana he had seen the applicant’s car overtake him. He further contested the manner in which M.’s testimony had been obtained as well as M.’s absence from the hearing. The applicant further complained that the Court of Appeal’s decision of 29 October 2001 was taken in his absence and in breach of the principle of adversarial proceedings (see paragraph 74 above). His appeal against that decision was still pending before the Supreme Court. According to the applicant, the trial court did not give sufficient weight to witnesses’ testimonies that indicated that he was having dinner at a nearby restaurant when the MP was murdered (see paragraph 64 above). Nor had eyewitnesses P.G, Z.N and S.L declared that they had seen him at the crime scene or that they had seen a police car parked nearby. Contrary to the trial court’s interpretation of his actions, there was no discernible criminal element in the fact that, two days prior to the murder, he had travelled with the people who later assassinated the MP; nor in the fact that he participated in N.C’s funeral forty days after the murder; nor in the fact that he had known F.H’s brother fifteen years previously. The trial court’s decision lacked reasons as regards his role as an abettor (ndihmës) as provided for by Article 26 of the CC. 79. At the hearing of 8 July 2002 the applicant submitted a comprehensive memorial and made a detailed list of requests for the Court of Appeal to consider namely, the admission of evidence, the conduct of further investigative actions and the questioning of additional witnesses.


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80. On 9 July 2002 the Court of Appeal admitted in evidence a number of the documents requested by the applicant and rejected the remainder of his requests. On the same date, it upheld the District Court’s judgment as a whole. Most notably, the Court of Appeal held that the applicant had participated in the commission of the crime as an abettor. For example, he had escorted the perpetrators from Bajram Curri to Tirana and back, he had been seen at the hotel, his car was parked close to the crime scene, he was a close friend of H.H who was the brother of F.H and he had been seen paying a visit to N.C’s family 40 days after his death. His role was based on the testimonies of the co-accused J.M, witnesses A.L and L.G as well as of other witnesses. The applicant’s witnesses did not call into question his presence during the above-listed events. 81. The Court of Appeal also upheld J.M’s conviction. 2. Proceedings before the Supreme Court 82. On 31 July 2002 J.M, one of the co-accused, appealed to the Supreme Court, arguing, inter alia, that the lower courts were not empowered to reclassify the criminal charges against him. 83. On 5 August 2002 the applicant lodged an appeal with the Supreme Court relying on the same grounds of appeal as before the Court of Appeal, adding that the Court of Appeal’s decision was not adequately reasoned. His conviction was based on circumstantial evidence instead of evidence of concrete unlawful actions committed by himself. 84. On 14 February 2003 the Supreme Court upheld the lower courts’ judgments. 85. The Supreme Court found that, notwithstanding the fact that in the case file there had been no formal decision to close the investigation stage and disclose the documents obtained during the criminal investigation to the applicant and the other co-accused, on 3 April 2001 the District Court had accepted the applicant’s request for additional time and granted him sufficient time for the preparation of his defence. 86. The Supreme Court found that the statements and video testimony of M. had been obtained on the basis of Articles 151 § 3 and 509 of the CCP as well as of the Mutual Assistance Convention. M.’s statements during the criminal investigation had been subjected to judicial examination by way of a video link. The fact that the applicant had left the hearing did not render the production of evidence unlawful, having regard to the presence of other co-accused and their lawyers who had exercised the right to cross-examine M. While the Supreme Court condemned the applicant’s behaviour at the hearing, it called on the trial court to ensure that, in future, court-appointed lawyers should be made available in order to guarantee the protection of the rights of the defence. 87. The Supreme Court noted that the case file contained a copy of the applicant’s appeal of 9 November 2001 (see paragraph 75 above), but it

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ruled that the appeal had not been lodged in accordance with the legal requirements (there was no note of the court’s registry about its date of introduction). 88. The fact that the applicant and the co-accused had not been previously provided with a copy of witness A.L’s statement did not infringe their defence rights: A.L had testified at trial at the applicant’s request and the applicant had had an opportunity to question him. 89. In response to the complaint raised by co-accused J.M, the Supreme Court further found that the reclassification of the charges against the applicant by the trial court was in compliance with the law namely, Article 375 of the CCP which had entered into force on 13 June 2002. 90. The Supreme Court noted that, whereas the applicant had the right to request a reopening of the judicial examination, it was at the court’s discretion to obtain additional evidence. In his case, the Court of Appeal had admitted in evidence a number of documents and had dismissed the remainder of the applicant’s motions on the grounds that they were unnecessary for the examination of the case. 91. Finally, the Supreme Court rejected the remainder of the applicant’s complaints on the ground that they concerned the assessment of evidence, which was the lower courts’ function. 3. Proceedings before the Constitutional Court 92. On an unspecified date the applicant lodged a constitutional appeal with the Constitutional Court. He submitted that his initial detention had not been based on the existence of a reasonable suspicion and that he had not been promptly informed of the reasons for that detention. He further alleged that he had not had sufficient time to study the voluminous information in the criminal investigation file submitted to the trial court. In his view, certain pieces of evidence had been obtained unlawfully: M.’s testimony had not been obtained through the Ministry of Justice as required under Article 509 of the CCP, since the Mutual Assistance Convention had entered into force on a later date in respect of Albania; M.’s testimony was obtained in the applicant’s absence; Ç’s testimony was secured with too much haste, on a Sunday, without the applicant having been fully informed of the reasons; and J.M’s and A.L’s statements of 6 and 8 May 2001, respectively, were obtained after the conclusion of the criminal investigation in breach of the domestic law (Article 324 § 4 of the CCP). 93. The applicant contended that all his requests to have expert reports prepared or to summon witnesses had been unreasonably rejected by the trial court. The Court of Appeal had also failed to give reasons for the refusal to obtain certain evidence he had requested. The applicant complained about the lack of impartiality of the domestic courts, particularly having regard to the Court of Appeal’s decision of 29 October 2001 which was taken in an accelerated procedure, in the


15

absence of himself and his representative and within two hours. The failure of the Supreme Court to examine his appeal gave rise to a breach of Article 2 of Protocol No. 7 to the Convention. His conviction was not reasoned and was based on circumstantial evidence (travelling to Tirana together with the authors of the crime, dining 200 metres away from the crime scene on the day of the crime, attending N.C’s funeral forty days after the crime and his friendship with the perpetrator’s brother (H.H) ten years before the crime). 94. J.M also appealed to the Constitutional Court arguing, inter alia, that the lower courts had exceeded their powers when they reclassified the criminal charges against him. 95. On 9 July 2003 the Constitutional Court, sitting as a full formation of nine judges, declared the appeal inadmissible on the ground that the appeal did not disclose a breach of the right to a fair trial. No reasons were given. A dissenting opinion stated, without more, that the applicant’s appeal raised issues relating to the right to a fair trial. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Criminal Code 96. Article 26 § 5 provides that abettors are persons, who, by way of their advice, instructions, means, lifting of obstacles, promises to conceal other accomplices, traces or objects that originate from the criminal offence, assist in its commission. 97. At the time of the commission of the offence, Article 78, as amended in 1996, provided that premeditated murder attracted a sentence of life imprisonment. Article 79 (c) which regulated the criminal offence of intentional murder on account of the victim’s particular position provided for a term of life imprisonment. 98. Following the adoption of law no. 8733 of 24 January 2001, Articles 78 and 79 (c) were changed as follows: Article 78 – Premeditated murder “1. Premeditated murder is liable to punishment of between fifteen and twenty-five years’ imprisonment. 2. Premeditated murder committed on account of interest, revenge or blood feud is liable to punishment of between twenty five years and life imprisonment.” Article 79: Intentional murder on account of the victim’s particular position “Intentional murder committed against: ... (c) a member of parliament, judge, prosecutor, lawyer, police officer, military officer or civil servant, in the discharge of his duties or on account of it, provided that the victim’s position is obvious or known;

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shall be liable to punishment of between twenty years and life imprisonment.”

B. Code of Criminal Procedure (“CCP”) 99. Article 50 § 1 states that a lawyer exercises the rights accorded to the defendant by law, unless the law has explicitly reserved such right solely to the defendant. Under Article 51 § 1 a lawyer, upon the defendant’s consent, may appoint a replacement in so far as he is prevented from attending the trial. 100. Article 151 § 3 empowers the court to collect evidence in respect of which there is no regulatory legal provision, provided that it serves to prove the facts and that it does not restrict the person’s free will. 101. Articles 316-322 govern the institution of securing of evidence during the stage of the criminal investigation. The parties may request that evidence be secured, for example, a witness’s testimony, an identification parade, an expert’s report, when there are reasons to believe that they may be prevented from collecting such evidence in the future. The request should be submitted in writing to the court’s registry. The securing of such evidence takes place at a hearing in the presence of the parties. 102. Article 375, as in force at the time the District Court’s judgment was adopted, stated that the court informs the parties of a new legal reclassification it may give to the facts, different from that given by the prosecutor, provided that the criminal offence is within its competence. Article 375, as amended on 13 June 2002, reads that “in its final decision the court may give to the fact a [new] legal reclassification different from that given by the prosecutor ..., more lenient or severe, provided that the criminal offence is within its competence”. 103. Under Article 324 § 4 investigative actions carried out after the expiry of the time-limit for the conclusion of the criminal investigation cannot be relied on at the trial. 104. Article 407 § 5 stipulates that in the event an appeal has been lodged with the wrong court, it shall redirect it to the competent court. Article 413 § 1 states that an appeal is to be lodged with the registry of the court that gave the decision. The court’s registrar notes on the appeal, inter alia, the date of receipt. Under Article 415 § 1 the time-limit for lodging an appeal is 10 days. The time-limit starts to run from the day following the pronouncement of the judgment. 105. Under Article 427 the Court of Appeal may re-open the judicial examination of a case (përsëritja e shqyrtimit gjyqësor). In the event that one of the parties requests the re-examination of evidence administered during the first-instance court proceedings or seeks the collection of additional new evidence, the Court of Appeal, when deemed necessary, may decide to reopen the judicial proceedings, in part or in whole (Article 427 § 1). In so far as evidence has been discovered subsequent to the first-


17

instance court’s judgment or, in so far as evidence has been discovered in the course of the appeal proceedings, the Court of Appeal decides on a caseby-case basis as to its admission (Article 427 § 2). The re-opening of a case may also be decided ex officio when deemed necessary (Article 427 § 3). The Court of Appeal may also re-examine evidence provided that the accused did not attend the first-instance proceedings, either because he was not notified or because he was unable to attend those proceedings on lawful grounds (Article 427 § 4). 106. Article 509-511 governs the procedure for the transmission of letters rogatory sent through the Ministry of Justice. C. European Convention on Mutual Assistance in Criminal Matters (“the Mutual Assistance Convention”) 107. The Mutual Assistance Convention entered into force in respect of Albania on 3 July 2000. It establishes common rules in the field of mutual assistance in criminal matters, such as the questioning of witnesses or experts. Requests for mutual assistance are made by way of letters rogatory, which should be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party. D. Recommendation 1386 (1998) of the Parliamentary Assembly of the Council of Europe 108. The resolution, in so far as relevant, reads as follows: “5. The Assembly strongly condemns the murder of Democratic Party parliamentarian Azem Hajdari and his bodyguard. The authorities should prove to the international community that they are making every effort to bring those responsible to justice as soon as possible and to allow for independent international investigation. 6. The Assembly further strongly condemns the political violence from both sides following these murders. Attacks on the democratic institutions of the state cannot be justified on any political grounds. Any attempt to take power by force is clearly unacceptable. (...)”.

THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 and 2 OF THE CONVENTION 109. The applicant complained under Article 5 §§ 1 (c) and 2 that his initial detention was not based on a reasonable suspicion and that he was not

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promptly and sufficiently informed of the reasons for his arrest. Article 5 §§ 1 (c) and 2 of the Convention read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

110. The Court reiterates that it “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken” (see, amongst others, Alimuçaj v. Albania, no. 20134/05, § 139, 7 February 2012; and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). 111. Turning to the facts of the present case, the Court notes that the applicant challenged his initial detention before the domestic courts. The final domestic ruling in respect of those proceedings was the Supreme Court’s decision of 9 February 2001. The applicant lodged his complaint with this Court on 20 July 2003. It follows that this complaint was introduced outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION 112. The applicant made numerous complaints under Article 6 § 1 of the Convention. In the first place, he complained that the domestic courts’ decisions lacked sufficient reasons. Secondly, those courts had admitted evidence which had been unlawfully obtained, such as M.’s video-link testimony. Thirdly, the District Court’s bench, as well as the Supreme Court’s bench of 14 February 2003, lacked impartiality. He stressed that his appeal of 9 November 2001 to the Supreme Court was never in fact examined. 113. The applicant also alleged a breach of his rights under Article 6 § 3 (a) to (d). He complained that he was not properly notified of the charges against him and that his lawyer was not given sufficient time to study the investigation file. He did not have access to all the documents in the file and, in particular, A.L’s statement of 8 May 2001. No lawyer was appointed ex officio to defend him at the hearing of 29 October 2001 when M. gave evidence to the trial court. The domestic courts had changed the legal reclassification of the charges without giving him an opportunity to make submissions thereon. The Court of Appeal examined and rejected his appeal


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of 29 October 2001 in his absence. Witness Ç.’s testimony was secured hastily, without giving the applicant adequate time to cross-examine that witness and submit comments. His requests for additional expert reports and other witnesses at the trial were unreasonably rejected. 114. Article 6 §§ 1 and 3 (a) to (d) read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

A. Admissibility 115. The Government submitted that the applicant’s complaint about the reclassification of the criminal charges should be rejected either for nonexhaustion of domestic remedies or as manifestly ill-founded. 116. The Court reiterates that applicants are only obliged to exhaust domestic remedies which are available in theory and in practice at the relevant time and which they can directly institute themselves – that is to say, remedies that are accessible, are capable of providing redress in respect of their complaints and offer reasonable prospects of success (see, for example, Sejdovic v. Italy [GC], no. 56581/00, § 46, 1 March 2006). 117. In the instant case, the Court notes that J.M, one of the co-accused, unsuccessfully appealed to the Supreme Court and the Constitutional Court about the allegedly unlawful reclassification of the criminal charges (see paragraphs 82 and 94 above). Having regard to the fate of his co-accused’s appeal, the Court considers that the same complaint by the applicant would have had no reasonable prospects of success (see also Laska and Lika v. Albania, nos. 12351/04 and 17605/04, § 47, 20 April 2010). The Court therefore rejects this objection. It does not consider that this complaint is manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible. 118. As regards the remainder of the applicant’s complaints of unfairness, the Court considers that they are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being

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inadmissible on any other grounds, they must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant

119. The applicant submitted that he was not properly notified of the charges against him. He did not have adequate time to study the voluminous case file that had been lodged with the trial court. Some evidence, such as A.L’s statement of 8 May 2001, was withheld from him. The trial court had admitted unlawful evidence, such as the testimonies of witnesses Ç. and M. Domestic law did not regulate the obtaining and admission of evidence from the video link of witness M who had been pressurised by the authorities to testify in exchange for his exemption from criminal responsibility. A number of his requests for procedural measures were rejected by the trial court and no reasons were given. By failing to appoint an ex officio lawyer, the trial court did not secure his right of defence at the hearing of 29 October 2001 when M. was heard by video link. This was also acknowledged by the Supreme Court in its decision of 14 February 2003. 120. None of the witnesses who testified before the trial court had directly accused him of participation in the crime. Throughout the proceedings, the applicant maintained his innocence. The prosecutor never alleged that he was aware of the movements of other people involved in the commission of the crime. The domestic courts had not given adequate reasons for their conclusion that the applicant had sought revenge against the MP. Until his arrest, the applicant continued to work as a staff member of the Ministry of Interior, serving in the traffic police. 121. The applicant stated that he had lodged an appeal against the Court of Appeal’s decision of 29 October 2001, as confirmed by the date and the stamp on the appeal. The District Court’s registry was obliged to transmit the appeal to the Court of Appeal’s registry under Article 407 § 5 of the CCP. Had his appeal been lodged in breach of Article 413 § 1 of the CCP, the Supreme Court should have taken a decision pursuant to Articles 112 § 1 and 433 § 2 of the CCP. (b) The Government

122. The Government submitted that the applicant was promptly and adequately informed of the charges against him. His lawyer’s request for additional time to study the bill of indictment was granted by the trial court. While a number of his requests were granted by the domestic courts, the request for the conduct of expert reports was rejected because his involvement in the crime was beyond doubt. The testimonies of witnesses


21

Ç. and M. were obtained in accordance with domestic law. The applicant had voluntarily left the hearing room on 29 October 2001 and had stated that “no one dares take up my defence”. In response to the trial court’s request to provide an ex officio lawyer, the Albanian Bar Association was unable to assist with the request, having regard to the constraints imposed by Articles 49 § 6 and 51 § 1 of the CCP. Faced with such limitations and the obligation to conduct a trial within a reasonable time, the trial court had decided to proceed with the hearing. 123. The applicant’s complaints concerned the assessment of evidence which was a matter for the domestic courts. That assessment did not contain any elements of arbitrariness or unreasonableness as regards the applicant’s conviction. The domestic courts had before them sufficient evidence confirming the applicant’s involvement in the commission of the crime. 124. In the Government’s view, the applicant’s appeal to the Supreme Court did not comply with the requirements of Article 413 § 1, because it was lodged with the District Court’s registry instead of the Court of Appeal’s. While the District Court was under an obligation to transmit the appeal to the Court of Appeal in accordance with Article 415 § 1 of the CCP, the appeal had been lodged outside the time-limit. This explained the non-transmission of the applicant’s appeal to the Supreme Court. 2. The Court’s assessment 125. Given that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, the Court shall examine the applicant’s complaints under the two provisions taken together (see, inter alia, A.S. v. Finland, no. 40156/07, § 47, 28 September 2010). 126. The Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288, and Burg v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, and Helle v. Finland, 19 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII). 127. The provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal

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process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed (see Pélissier and Sassi v. France [GC], no. 25444/94, § 51, ECHR 1999-II). In addition, the object and purpose of Article 6 §§ 1 and 3 show that a person charged with a criminal offence “is entitled to take part in the hearing and to have his case heard” in his presence by a “tribunal” (see, amongst others, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 68 and 78, Series A no. 146). 128. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998‑IV; and Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006‑IX). It is, therefore, not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001‑IX; Bykov v. Russia [GC], no. 4378/02, § 89, ECHR 2009‑...; and Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010‑ ...). 129. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined, in particular, whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see, Gäfgen, cited above, § 164). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, mutatis mutandis, Khan, §§ 35 and 37, Allan, § 43, and Bykov, § 90, all cited above).


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130. The Court will consider in turn the various grounds of the applicant’s complaints under the overall fairness requirement of Article 6 of the Convention. (a) Notification of the charge

131. The Court notes that the applicant was arrested on 22 January 2001. The arrest warrant clearly stipulated the criminal charges laid against him. On 23 January 2001 the applicant was fully informed of the charges when questioned by the prosecutor. At the hearing of 24 January 2001 on the validation of his arrest and in the presence of a lawyer of his choosing, he made statements in relation to those charges and the events referred to therein. The Court therefore considers that the applicant was adequately notified of the charges against him. It recalls that the notification of the accusation should not necessarily be attended by the disclosure of supporting evidence to enable the accused to prepare for trial (see Brozicek v. Italy, 19 December 1989, § 42, Series A no. 167). The existence of such evidence may still be dependent on the results of the on-going investigation. (b) Conduct of the trial proceedings (i) Provision of adequate time

132. Following the introduction of the bill of indictment on 13 March 2001, the applicant’s lawyer had access to the voluminous investigation file as of 16 March 2001. At the hearing of 3 April 2001 the trial court granted the lawyer’s request for an extension of the time needed to examine the case file. There is no indication from the case file that the applicant requested additional time. (ii) Attendance of the trial hearings

133. The Court recalls that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving, of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII). In that connection, the Court notes that the applicant unequivocally and freely waived his right to attend the hearing of 29 October 2001 or to be represented by an ex officio lawyer when M. was heard by video link, the lawyer of his choosing having been prevented from attending that hearing.

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(iii) Examination of witnesses

134. As to any alleged irregularities in admitting the testimony of Ç. and M., the Court notes that the domestic courts rejected those testimonies as contradictory and lacking in credibility and did not rely on them. 135. It would appear that A.L’s statement of 8 May 2001 was initially withheld from the defence. However, any unfairness which that may have caused was remedied by the trial court ensuring that A.L testified. The applicant and his lawyer attended the hearing, cross-examined A.L and opposed the use of A.L’s testimony. (iv) Representation by a lawyer

136. At all stages of the trial, the applicant was represented by a lawyer of his choosing, attended almost all relevant hearings, had the opportunity to submit evidence and cross-examined numerous witnesses. (c) Conduct of the appeal proceedings (i) Reclassification of the offence

137. In assessing the fairness of criminal proceedings as a whole, the Court has accepted that a reclassification of an offence will not impair the rights of the defence if the accused, in review proceedings, had a sufficient opportunity to defend himself (see Dallos v. Hungary, no. 29082/95, §§ 4753, 1 March 2001; and Sipavičius v. Lithuania, no. 49093/99, § 30, 21 February 2002). In the instant case, the applicant challenged his conviction as well as the reclassification of the offence before the Court of Appeal, which court was competent to deal with that issue. The Supreme Court also examined the applicant’s appeal against his conviction on the basis of the reformulated charge. It also examined his co-accused’s appeal concerning the reclassification of the offence. That court was competent to afford the applicant and the co-accused relief (see paragraph 89 above) but it reasonably rejected the submissions. 138. The Court therefore considers that, having regard to the facts of the case, particularly the prosecutor’s final submissions at the trial as set out in the District Court’s judgment (see paragraph 70 above), it cannot be said that the applicant could not anticipate the reclassification of the criminal charge against him. The applicant had adequate time and facilities to prepare his defence to the reformulated charge and, in fact, he did advance before the Court of Appeal his defence to the reformulated charge. In this respect, the present case must be distinguished from the above mentioned Pélissier and Sassi case, where the Court of Cassation did not re-examine the “discretion” of the appeal court in reclassifying the charge.


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(ii) Failure of the Supreme Court to examine the applicant’s interlocutory appeal of 9 November 2001 as regards the District Court’s lack of impartiality

139. It emerges from the documents in the case file that on 9 November 2001 the applicant lodged an interlocutory appeal against the Court of Appeal’s decision of 29 October 2001. The appeal was lodged with the District Court’s registry. On 14 January 2002 the applicant enquired with the District Court about the fate of his appeal. He was informed that the Supreme Court had not requested the transfer of the case file for examination. 140. On 5 August 2002 the applicant raised this complaint in the appeal against his conviction to the Supreme Court. On 14 February 2003 the Supreme Court admitted that there was a copy of the applicant’s appeal of 9 November 2001 in the case file but that the appeal did not comply with the relevant legal requirements. 141. In this connection, the Court observes that the issue of the failure to examine the applicant’s interlocutory appeal of 9 November 2001 was submitted to the Supreme Court on 5 August 2002, which, albeit belatedly, examined it and found that it did not comply with the necessary legal requirements. Furthermore, in the light of all the materials in its possession, the Court finds that there is no appearance of a lack of impartiality on the part of the bench of the District Court. (iii) Provision of adequate reasons

142. The applicant’s conviction was based on the testimonies of witnesses A.L, K.G and J.M. Even though none of them accused the applicant directly of the shooting, the domestic courts reasoned that, on the basis of those testimonies as well as the circumstantial evidence in the case, the applicant’s participation in the crime as an abettor was proved (see paragraphs 69, 72 and 80 above). The Court further recalls that the use of indirect or circumstantial evidence is not excluded by Article 6 (see, for example, Cesky and Koti v. the Czech Republic (dec.), nos. 76800/01 76801/01, 7 April 2009; Alberti v. Italy, no. 12013/86, Commission’s decision of 10 March 1989; and, mutatis mutandis, Andandonskiy v. Russia, no. 24015/02, § 52, 28 September 2006). 143. The Court of Appeal re-opened the judicial examination and granted some of the applicant’s requests and rejected the remainder. In this connection, the Court notes that the domestic courts enjoy discretion as regards the admission of evidence. They cannot be reproached for having rejected the applicant’s requests if they considered that they possessed sufficient evidence to decide his case. 144. It may be argued that other investigative measures were needed to prove the applicant’s guilt. However, the Court cannot speculate as to the outcome of the trial in this respect. It is satisfied that the body of evidence

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against the applicant was subjected to adversarial proceedings which guaranteed respect for the rights of the defence at every stage of the appeal proceedings. (d) Conclusion

145. Having regard to the above considerations, the Court considers that the domestic proceedings, seen as a whole, do not disclose any elements of procedural unfairness. There has accordingly been no violation of Article 6 §§ 1 and 3 (a) to (d) of the Convention in that respect. III. ALLEGED VIOLATION CONVENTION

OF

ARTICLE

6

§

2

OF

THE

146. The applicant complained that the testimony of the then Minister of Justice, who hinted at the applicant’s guilt, breached the presumption of innocence as guaranteed by Article 6 § 2 of the Convention. Furthermore, the domestic courts presumed him guilty on the basis of witnesses M.’s and A.L’s testimonies, which had been considered contradictory and unreliable. Article 6 § 2 of the Convention reads as follows: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

147. The Government submitted that this complaint should be rejected for non-exhaustion of domestic remedies. 148. The Court refers back to the general principle in paragraph 116 above concerning the exhaustion of domestic remedies requirement. 149. Having examined the applicant’s appeals, the Court observes that the applicant failed to raise this complaint, at least in substance, before the domestic courts. It therefore rejects the applicant’s complaint for nonexhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 150. The applicant complained under Article 7 of the Convention that he was convicted on the basis of a criminal provision which did not exist at the time of the commission of the offence. Article 7 reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”


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151. The Government submitted that this complaint should be rejected for non-exhaustion of domestic remedies. 152. Having examined the applicant’s appeals, the Court observes that the applicant failed to raise this complaint, at least in substance, before the domestic courts. It therefore rejects the applicant’s complaint for nonexhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

FOR THESE REASONS, THE COURT 1. Declares unanimously the complaints under Article 6 §§ 1 and 3 (a) to (d) as regards the alleged procedural unfairness of the proceedings admissible and the remainder of the application inadmissible; 2. Holds by six votes to one that there has been no violation of Article 6 §§ 1 and 3 (a) to (d) of the Convention. Done in English, and notified in writing on 8 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Registrar

Ineta Ziemele President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.

I.Z. F.E.P.

HAXHIA v. ALBANIA JUDGMENT – SEPARATE OPINIONS

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PARTLY DISSENTING OPINION OF JUDGE DE GAETANO 1. I regret that in this case I cannot share the majority’s view that there has been no violation of Article 6 § 1. 2. The case against the applicant rested entirely on circumstantial evidence. It is trite knowledge that circumstantial evidence does not lie but may deceive. It is also generally acknowledged that circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities. For that reason it needs to be not only narrowly construed but also minutely examined. Moreover, in the instant case, the applicant stood charged not as a principal but as an abettor or accomplice. The crucial point, therefore, was whether it could be shown that the circumstantial evidence pointed conclusively to the existence of a common design – the idem placitum consensus – between the applicant and the principal or principals. 3. Although this Court’s case law in respect of Article 6 has repeatedly affirmed that it is not a court of fourth instance for the re-examination of the facts of the case, it has also held that although a decision may not be arbitrary in the sense of a total lack of reasons, it may nonetheless lack sufficient reasons in light of the particular circumstances of the case, and therefore be in breach of Article 6 § 1. Thus, where a legal concept lacks precision, which involves an assessment of questions of facts, a court may be required to give more detailed reasons especially where the finding is of a decisive nature (see, among others, Georgiadis v. Greece no. 21522/93, 29 May 1997, in particular § 43). Likewise, a court, although giving reasons, may in effect avoid the crux of the issue (Kuznetsov and Others v. Russia no. 184/02, 11 January 2007, § 84); or the domestic court may ignore a “specific, pertinent and important” point (Pronina v. Ukraine no. 63566/00, 18 July 2006), even if reasons are given in respect of other issues. 4. I find nothing in the majority decision which indicates, or at least suggests, that sufficient reasons were given by the District Court or by the Court of Appeal to back up their finding of a common design between the applicant and the principal or principals (the Supreme Court dismissed the grievance relating to the lack of adequate reasons as not being within its competence, see § 91). On the contrary, it would appear that this crucial issue of the common design was not specifically addressed by these two courts. This, on its own, should have sufficed for a finding of a violation of Article 6 § 1. 5. But there is more. The applicant’s case was a high profile one against a backdrop of political turmoil. Common sense would suggest that courts dealing with judicial proceedings in such circumstances would exercise

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HAXHIA v. ALBANIA JUDGMENT – SEPARATE OPINIONS

great caution, if anything so as to leave no lurking doubt as to the fairness of the said proceedings. In the instant case, on the contrary, the applicant’s appeal to the Supreme Court from the Court of Appeal’s decision of 29 October 2001 (on the District Court’s alleged lack of impartiality) was never examined by the said Supreme Court through what appears to have been an administrative error (see §§ 75-77, 87, 121 and 124). The applicant’s appeal before the Court of Appeal appears to have been disposed of with exceptional alacrity (see in particular §§ 79-80). The appeal to the Constitutional Court was declared inadmissible with no reasons given. The lurking doubt remains. 4. For all these reasons there was, in my view, a violation of Article 6 § 1.