FOURTH SECTION
CASE OF
MULOSMANI v. ALBANIA
(Application no.
29864/03)
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.
In the case of Mulosmani 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
The case originated in an application (no.
29864/03) 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 Jaho Mulosmani (“the
applicant”), on 4 July 2003.
The applicant was represented by Mr V. Meçi, 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.
Mr Ledi Bianku, the judge elected in respect of
Albania, withdrew from sitting in the case (Rule 28). 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).
The applicant alleged a number of violations
under Articles 6 and 7 of the Convention.
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
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1977 and is currently
serving a sentence of life imprisonment. At the time of the events described
below, the applicant was the head of public order at the police commissariat of
Bajram Curri, a city in the north east of Albania.
A. The assassination of a Member of Parliament
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.
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.
Immediately after the
assassination, Mr Sali Berisha, the then DP’s chairman and a well-known public
personality, went on air accusing the applicant of being the author of the
crime. It would appear that the official press statement issued by the DP, at
11 p.m. on the same day, stated that the applicant had been identified as the
killer. No copy of the press statement has been submitted to the Court.
Mr Hajdari’s assassination
caused a rapid build-up in tensions and on 13 September 1998 protesters stormed
the Prime Minister’s building.
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.
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 109 below).
B. The criminal investigation into the assassination
On 13 September 1998 the applicant had a
telephone interview with the then Minister of Interior about the assassination.
He stated that he had not been involved in the shooting and was at the
authorities’ disposal for any further information. The conversation was recorded
by the Albanian Public Broadcaster (“TVSH”), but the tape disappeared during the
course of the following days. On the same day the Minister verbally ordered the
applicant’s arrest. The order was never executed, especially given the turmoil
that followed the MP’s assassination (see paragraph 10 above).
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.
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.
The prosecutor did not question either the
applicant or Mr Berisha.
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. He also stated that on the day of the crime, the weather was very
cloudy and the nearby bars were closed. There was no mention of the applicant’s
name or of his involvement in the crime.
On an unspecified date Z.N left the country for
Belgium.
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.
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, F.M, the applicant and Iz.H. The last-mentioned
has lodged a separate application with the Court (no. 34783/06).
On 16 November 2000, at the request of the
Albanian prosecutor, a Bruges investigating judge questioned Z.N. In his
testimony, he stated that 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 17
above), he alluded to the applicant as being that person.
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 first-floor veranda of a bar, which was located close to
the crime scene. According to Ç.’s statements, the applicant and two other
persons, F.H and N.C, fired at the MP.
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 secure as evidence 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 ex officio lawyer
requested time to prepare the defence. Accordingly, the court adjourned the
hearing to 11 March 2001.
On 11 March 2001 the District Court granted the
prosecutor’s request. The applicant’s court-appointed 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 connection with 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 on the side of the
DP headquarters. He saw the MP who was having a heated argument with Is.H (Is.H
has lodged a separate application, no. 29861/03, with the Court). The applicant
was also present. He then heard a pistol shot as well as automatic gun fire. He
also stated that at the time of the crime the applicant was sitting in the
passenger seat of his car.
On 12 March 2001 the prosecutor disjoined the
criminal proceedings against M. from the criminal proceedings against the
applicant and the other co-accused.
On 31 May 2002 the prosecutor dropped the
charges against M. for lack of evidence.
C. The applicant’s arrest
On 14 December 1999 the
prosecutor decided to inform the applicant of the charges against him.
According to his decision, the applicant was charged in connection with the
events of 12 September 1998 under Articles 79 (c), 78, 78-22, 25 and 278 § 2 of
the CC. On the same day, the prosecutor sought the applicant’s arrest. The
prosecutor’s request read, in so far as relevant, as follows:
“Subsequent to the murder, in a televised press conference, the
Chairman of the Democratic Party mentioned the name of the accused Jaho
Mulosmani as the perpetrator of the crime. This position was maintained in the
press release issued by this [Democratic] Party in the days following the
murder. This position ... gains credibility given the fact that the murder
occurred close to the [DP’s] headquarters and that the surrounding environment
and bars were frequented by its own members and admirers.”
On 15 December 1999 the District Court ordered
the applicant’s arrest. Its decision read, inter alia, as follows:
“The accused’s authorship of the crime was declared by the DP’s
chairman, Mr Berisha, in a press statement on the very day, immediately after
the murder. This position was maintained in the DP’s press release, naming the
accused Jaho Mulosmani as the perpetrator of the crime.”
On 4 January 2001
the court declared the applicant a fugitive after unsuccessful attempts to
locate him in 2000. The court’s decision stated that the applicant had left the
country in December 1999. The applicant was assigned a court-appointed lawyer.
On 6 May 2001 the
applicant was arrested. Notwithstanding the fact that the trial proceedings
were in progress, he was questioned by the prosecutor in the absence of a lawyer.
He was, however, told that he had the right to appoint a lawyer. The applicant
stated that on the night of the murder he was in a hotel situated near the DP
headquarters. At the time of the shooting he was having dinner in the hotel’s
restaurant together with other persons. His car was parked close to the hotel
and the DP headquarters. He denied having had any prior conflicts with the MP.
On 7 May 2001 the District Court confirmed the
lawfulness of the applicant’s arrest. The applicant, who was present at the
hearing, stated that he wished to represent himself.
C. The trial court’s proceedings
On 13 March 2001 the prosecutor lodged a bill of
indictment with the District Court. A long list of supporting documents was
attached thereto. The applicant and four other 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.
On 16 March 2001 the applicant’s court-appointed
representative took possession of the investigation file consisting of 324
documents and 1,409 pages. On the same day, he submitted a statement
irrevocably withdrawing from representing the applicant on account of health
and personal reasons.
On 3 April 2001 the trial started. The court
granted a co-accused’s request for additional time to study the case file and
adjourned the hearing until 13 April.
On 8 May 2001, following his remand in
detention, the applicant appeared at the trial for the first time. He requested
leave to appoint a legal representative. The court accepted the request and
adjourned the proceedings in order to summon the applicant’s lawyer.
On 11 May 2001 the applicant’s lawyer stated
that he had taken partial cognisance of the material in the case file and
requested the court to continue the trial.
1. Witnesses’ testimonies
A number of witnesses were questioned by the
trial court in connection with the murder, including the following:
(a) Witness K.G
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. As a result, a team of
police officers was dispatched to the applicant’s home to verify his
whereabouts. He was informed that the applicant was in bed sick.
(b) Witness M.
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.
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.
On 29 October 2001 the
court heard M. by video link. In a statement issued on the same day two
co-defendants declared their intention not to attend the hearing given the lack
of any legal basis for the video link.
According to M.’s testimony, the applicant ran
into him in one of the streets of Tirana on the morning of 12 September 1998.
They purchased a police warning light together. The applicant was looking for a
car to facilitate his movements in the city. F.L, the owner of a bar which M.
frequently attended, agreed to ‘lend’ the applicant his black Mercedes, on the
understanding that he would return it by the afternoon. M. and the applicant
parted ways agreeing to meet again in the early afternoon.
In the early afternoon M. and the applicant
drove around. At the applicant’s suggestion, they went for a drive by Tirana’s
lake, where they met with F.H who was dressed in police uniform.
M. initially stated that the applicant had a
mobile telephone in his hands. He did not know whether it belonged to the
applicant. He could not remember whether the applicant had received incoming
telephone calls or made outgoing ones.
M. maintained that he was two kilometres away
when he heard shots being fired on the evening of 12 September 1998. He was in
his car, on the way to F.L’s bar. He went by the crime scene and saw taxis
around the crime scene but not F.L’s car. He learned of the assassination from
the news on television.
The video link was interrupted by a
fifteen-minute break. Upon resumption, M. stated that other people who had been
present by the lake were armed either with Kalashnikovs or TT pistols. The
applicant had obtained the mobile telephone from another co-accused. On the way
back, the applicant, F.H and N.C got into M.’s car and they were taken to
collect the black Mercedes. M. stated that a police van was parked in the
Unknown Soldier’s Square (Sheshi i Ushtarit të Panjohur) while another
one was stationed close to the Parliament building.
M. stated that he heard shots fired from a
Kalashnikov. When he reached the crime scene he saw the Mercedes leaving and
three to four people lying on the ground.
While watching the news on television at F.L’s
bar, M. spoke on the telephone with the applicant who told him to keep silent
and added that F.L would be compensated for any damage caused to the vehicle.
(c) Witness G.B
G.B owned a bar next to the DP’s premises and
was a childhood friend of the murdered MP. On 28 May 2001 G.B testified. He
stated that he was neither in the bar nor at the crime scene on the day of the
murder. According to him, it had been reported that armed people, including the
applicant, had been seen around the DP headquarters. G.B denied the existence
of any friction between the MP and the applicant. At the same time, he
recounted an attempted murder against the MP in Bajram Curri. While the MP had
a narrow escape, the applicant had threatened the MP that he would not escape
again. G.B also stated that S.L, a bodyguard working for the DP, who was
present in the building at the time of the crime, had not seen the authors of
the crime.
(d) Witness A.L
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 statement, A.L left on a mission to Tirana
late in the evening of 10 September 1998. This was at the request of the
applicant who was the head of public order. No details were given as to the
purpose of the mission. F.H and E.H accompanied him along with the applicant.
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 one of the
co-accused (Is.H) was driving. They spent the whole of 12 September 1998 by the
lake in Tirana. In the evening, they were joined by other people. At a certain
point, they decided to go back to the city and some people got into his car. He
was told to park by the DP’s headquarters. After hearing automatic gun fire, he
was asked to drive to the civilian hospital. On the way, A.L was stopped by the
applicant. F.H and the applicant got into the car together with N.C who had
been wounded. After taking N.C to hospital, A.L returned to Bajram Curri in the
evening of 12 September; no other car accompanied them. The applicant, F.H and
E.H were in the car. The statement was disclosed to the accused and the court
on an unspecified date in 2001.
On 25 July 2001 the court heard the testimony of
A.L. The applicant and his lawyer attended the hearing and questioned A.L.
According to A.L’s testimony, on the evening of
10 September 1998 he had been ordered by the applicant to prepare a police van
and travel to Tirana along with E.H and F.H. When leaving Bajram Curri, he saw
that a Fiat Tipo, which belonged to one of the co-accused (Is.H), 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. They spent most of
12 September 1998 in a bar by the lake in Tirana. In the evening, E.H, H.H
and another co-accused (Iz.H) got into the police van and they headed back to
the city. The applicant, F.H and N.C were in a Mercedes with a police warning
siren on its roof. A.L was told to park by the Unknown Soldier’s Square and
wait. Thirty minutes later he heard automatic gun fire. He was then instructed
to start the engine and head to the civilian hospital. At an intersection, he
saw the Mercedes together with the applicant and F.H. They carried N.C, who had
been wounded, to his car and headed to the emergency ward of the civilian
hospital. The applicant and F.H explained to A.L that N.C had been wounded in
an accident. E.H and the other co-accused (Iz. H) got out of the police
van. A.L, the applicant and F.H returned to Bajram Curri on the same
evening. He further stated that the applicant had been dressed in civilian
clothes and was armed with a handgun and that F.H had been dressed in military
uniform and was armed with an automatic gun. He added that the next morning he
had heard on the television that the applicant was the perpetrator of the
crime.
The applicant’s lawyer objected that A.L’s
statements taken during the criminal investigation had not been promptly
disclosed by the prosecutor (see paragraph 50 above). He requested the court to
allow him time to prepare the defence. The court accordingly adjourned the
hearing to allow the defence the opportunity to question A.L.
On 26 July 2001 A.L was cross-examined.
(e) The applicant’s testimony
On 27 July 2001 the applicant testified. At the
request of F.H, they along with E.H left for Tirana on the evening of 10
September 1998 in a police van driven by A.L. The applicant was unaware of F.H’s
intention to murder Mr Hajdari. When leaving the city, they had passed on the
road the car of a co-accused (Is.H). On the way to Tirana, N.C, who had a previous
criminal record, joined them when they stopped for a break.
In the early afternoon of 12 September 1998, the
applicant was driven to the lake in Tirana. Other people were either already
there or joined them later. In the late afternoon, he, F.H and N.C got into M.’s
car. The three of them, save M., later got into a black Mercedes. The keys to
the car had been obtained by M. At about 9 p.m. the applicant parked the car
close to the DP’s headquarters, since F.H. wanted to talk to the MP and other
persons about a tape containing a discussion in which Mr Berisha had said that
he wished to see his brother dead. N.C and F.H were sitting in the back of the
car and the latter was communicating with someone via walkie-talkie.
The applicant admitted that he had been in the
driver’s seat when F.H and N.C got out of the car and opened fire. As a result,
N.C was gravely wounded. Unarmed, he got out to drag N.C into the car and take
him to hospital. F.H communicated via walkie-talkie with another person,
arranging to meet close to the civilian hospital. The applicant stated that he
had identified himself to the persons on duty at the hospital as a police
officer.
During the following days, he had been on duty
at the police station, where he learned that Mr Berisha had referred to him as
the killer. The same day, he met F.H, who told the applicant that Mr Berisha had
offered F.H 200,000,000 United States dollars not to confess to F.H’s
involvement in the assassination. In the following months, the applicant’s
father and F.H were murdered by unknown persons and the applicant escaped to
Kosovo, fearing for his life. He requested the court to order Mr Berisha to
appear at the trial in order to clarify his position and to explain his deal
with F.H.
On 30 July 2001 the applicant was
cross-examined.
On 8 March 2002, in view of the applicant’s
request to give further evidence, the District Court asked him to make
statements on the same day. The applicant requested additional time to prepare
the submissions. The court refused the request.
(f) Witness P.G
On 20 September 2001 P.G testified. An
eye-witness to the murders, she stated that the MP, who was escorted by his
unarmed bodyguards, approached a strange looking car that had been moving in
the area on the evening of 12 September 1998. The MP had a heated discussion
about the DP and Mr Berisha with the people who got out of the car. He and his
bodyguards were shot dead by three people, one of whom was the applicant. She
stated that the applicant was dressed in military uniform (ka qenë veshur me
rroba ushtarake) and that he got out of the front passenger’s seat and shot
the MP and his bodyguard.
Following the shooting, P.G stated that she went
to the DP headquarters where she related the events to Mr Berisha.
(g) Witness S.L
It would appear that on 13 November 2001 witness
S.L testified and was cross-examined. However, no records of that hearing have
been made available to the Court.
(h) Witness B.Y
On 5 February 2002 the court accepted the
applicant’s request to question B.Y, a forensic medical expert, who had
inspected Mr Hajdari’s and B.C’s corpses. B.Y stated that Mr Hajdari had died
as a result of fatal wounds to his body.
(i) Witness Ç.
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 60 metres away from the crime scene. Notwithstanding the fact that it
was completely dark outside and raining, he had seen the applicant fire at the
MP with an automatic gun. The applicant and the other co-accused questioned the
credibility of Ç.’s testimony in so far as his statements referred to persons
and cars not described by other witnesses at the crime scene.
On an unspecified date the owner of the café
where Ç. had been sitting in the evening of 12 September 1998 was questioned.
He stated that on that day the café was closed, as usual, at 7 p.m. The veranda
was located nearly 200 metres away from the crime scene.
(j) Witness Z.N
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 stated, inter alia, that, as far as he could remember, the applicant
could have been the person who had shot the MP.
2. Non-appearance of a witness
On 23 May, 8 June, 25 and 27 July 2001 the court
unsuccessfully summoned Mr Berisha, who was an MP and the chairman of the DP
(see paragraph 9 above). The court informed the then Minister of (Public)
Order, the Directorate General of Police as well as other institutions about Mr
Berisha’s non-compliance with its summonses.
On 7 September 2001 the court dismissed the
prosecutor’s request, inter alia, for an order for Mr Berisha’s
compulsory appearance and renewed the summons for him to appear at the trial.
On 14 and 26 September 2001 the District Court
unsuccessfully ordered, inter alia, Mr Berisha to appear.
On 29 October 2001 the court decided to refer to
the Constitutional Court the question of the order for the compulsory
appearance of Mr Berisha, in so far as he was an MP. It would appear that the
Constitutional Court has not yet ruled on this issue.
3. The parties’ final submissions
On 18 March 2002 the prosecutor made his final submissions
requesting the applicant’s conviction as charged.
On 10 April 2002 the applicant made his final submissions.
4. The District Court’s judgment of 29 April 2002
On 29 April 2002 the District Court gave
judgment. It found that, on the basis of forensic medical reports, the MP and
his bodyguard had died “of severe traumatic and hemorrhagic shock due to
multiple penetrating trauma, as a result of bullets to the head, [chest] and
abdomen” (shkaku i vdekjes është shoku i rëndë traumatiko-hemoragjik, pasojë
e plagëve të shumta tejshkuese në kokë, [kraharor] dhe në bark). Some of
the cartridges found at the crime scene were fired from a 9-mm calibre pistol,
which, according to witness A.L, belonged to the applicant and was used for the
commission of the crime.
The court further found that the applicant,
together with F.H, had acted as organiser and executor of the murder of the MP
and one of his bodyguards. The applicant arranged the trip of 10 September
1998 from Bajram Curri to Tirana at the request of F.H. Moreover, he was
directly involved in procuring the means for the commission of the crime. This
was confirmed by the testimonies of S.L, P.G and G.B, and, particularly, by the
testimony of A.L. The decision, in so far as relevant, reads as follows:
“On the basis of the evidence that has been collected, the
court is convinced that one of the authors of the crime... is the accused, Jaho
Mulosmani, in his role as the organiser and executor.
It was proved from the outset... that on 10... 11 and 12
September 1998 ... the accused, in collaboration with other persons who have [since]
died, undertook several organisational steps in order to secure the necessary
means and persons who would participate in the operation and planning [of the
murder]. This shows his role as the organiser of the crime.
His direct involvement in the commission of the crime ...
places him in the role of the executor.
The testimonies of witnesses A.L, S.L, P.G, G.B, etc., as well
as other documentary evidence found in the case file ... prove the defendant’s
active participation as the organiser and executor of the crime in
collaboration with others.”
The court also held that the MP
had not been assassinated on political grounds, but for revenge-related
purposes (hakmarrje). The applicant had aided and abetted F.H in
committing the murder as he had intended to avenge the murder of his brother,
in which F.H believed the MP had been involved. Consequently, 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 read, in so far as relevant, 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).
As disclosed by a number of items of evidence, F.H accused the
MP of having been involved in the assassination of his brother on 5 January
1998.
...
On page 8 of the prosecutor’s final submissions, the following
question was raised: ‘what drove the accused Jaho Mulosmani to become one of
the organisers of the MP’s murder?’ The answer was given as follows: “close
family and social ties on the basis of family kinship and criminal interest
with the wanted person, F.H”...In essence...Jaho Mulosmani walked the path of
crime by reason of friendship, close social and clan ties with F.H in order to
avenge rather than murder the MP by reason of his position.
...
Under these circumstances, having determined that the
participation of the accused Jaho Mulosmani was based on the aggravating motive
[of vengeance] and not on account of the victim’s position as an MP, the
criminal charge against him should be reclassified under
Article 78 § 2 of the Criminal Code instead of Article 79 (c).”
In passing judgment on two co-accused, the court
rejected the testimonies of witnesses Ç. and M. as contradictory and
unreliable.
In the end, the applicant was found guilty of:
the murder of the MP under Articles 78 § 2 and 25 CC; the murder of B.C under
Articles 78 and 25 of the CC; and, the attempted murder of Z.N under Articles
78 and 25 of the CC. He was sentenced to life imprisonment.
D. The appellate courts’ proceedings
1. Proceedings before the Court of Appeal
On 9 May 2002 the applicant lodged an appeal
against the District Court’s judgment. He admitted that, at the request of F.H,
they had set off for Tirana on the night of 10 September 1998. F.H could not
travel in broad daylight on account of blood feuds between himself and other
families in the region. The purpose of the trip was for F.H to obtain
explanations from the MP as regards his role in the assassination of F.H’s
brother. On the way to Tirana, they had run into the police car of a co-accused
(Is.H). In Tirana, the applicant had moved around freely in order to facilitate
the meeting between F.H and the MP. These movements were purely coincidental
and were not aimed at organising people or bringing accomplices together or
securing other facilities for criminal purposes. Had the applicant been an
organiser of the crime, he would have tried to keep a low profile and avoid
appearing in public. The applicant further admitted that he was present at the
crime scene together with F.H and N.C, but he had never shot the MP. It was F.H
who had got out of the back seat and shot the MP using an automatic gun. This
was further confirmed by Z.N’s statements of 25 September 1998 and 16
November 2000.
The applicant submitted that his guilt had not
been proved beyond reasonable doubt, but was based on assumptions,
uncertainties and allusions. There was no evidence that proved that he had
shot, or ever had in his possession, a 9-mm calibre pistol. Witness A.L was not
present at the crime scene and his testimony could not be relied on for that
purpose. Other witnesses’ testimonies relied on by the trial court were, he
alleged, contradictory and speculative. Z.N’s statement of 16 November 2000 was
shrouded in assumptions. No autopsy was conducted on the corpses to reveal
whether they had died of other causes (for example, poisoning). His statement
of 6 May 2001 was relied on to convict him and yet he was denied the right to
be heard by the trial court on 8 March 2002.
The applicant further maintained that the trial
court erred in convicting him of premeditated murder. There existed no proof
beyond reasonable doubt that he had worked out the planning and commission of
any offence in advance. The court was biased and influenced by media reports,
politics and other interests which were at play from the outset of the trial.
In addition, the court did not prove the existence of any motive for the
commission of premeditated murder: the motive expounded by the court was based
on probabilities and uncertainties namely, the fact that F.H wished to seek
revenge against the MP on account of the latter’s accusations against F.H t
during a parliamentary session. The court did not adduce any evidence that
there existed “close family and social ties on the basis of family clans and
criminal interests” between the applicant and F.H. Nor did it adduce evidence
about the existence of the applicant’s interest in the commission of the crime.
The court did not reveal the existence of a prior agreement between the
applicant and other co-accused regarding the commission of the premeditated
murder, as alleged.
On 9 July 2002 the Court of Appeal upheld the
District Court’s decision as a whole.
2. Proceedings before the Supreme Court
On 31 July 2002 the applicant lodged an appeal
with the Supreme Court based on the same grounds of appeal as before the Court
of Appeal, adding that, under the legal provisions at the time, the lower
courts were not empowered to reclassify the criminal charges against him, such
a prerogative resting solely with the prosecutor. He also alleged that the
decisions lacked reasons and coherence, that a number of witnesses had not been
summoned and that witness M.’s testimony had been unlawfully obtained and
admitted to the case file.
On 14 February 2003 the Supreme Court upheld the
lower courts’ judgments.
The Supreme Court found that, although the case
file disclosed no formal decision to close the investigation stage and to
disclose the documents obtained during the criminal investigation to the
applicant and the other co-accused, on 3 April 2001 the District Court had
granted one of the co-accused’s request for additional time for the preparation
of his defence until 13 April 2001.
As regards the applicant’s complaint that his
statement of 6 May 2001 was used as evidence, the Supreme Court
confirmed that the statement had neither been included in the case file nor
admitted in evidence by the District Court.
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 applicant had the right to cross-examine M. alone or
through his representative. The fact that some co-accused had left the hearing
did not render the production of evidence unlawful. While the Supreme Court
condemned those co-accused’s behaviour at the hearing, it called on the trial
court to ensure that, in future, ex officio lawyers should be appointed
in order to guarantee the protection of the rights of the defence.
The Supreme Court rejected the applicant’s
complaint that he was not granted adequate time to prepare his defence
statements. It noted that during the in absentia proceedings the trial
court appointed a lawyer to represent the applicant’s interests. In his first
appearance at the trial, his request to be defended by a lawyer of his own
choosing was granted. On 27 July 2001 the applicant was allowed to give
testimony and to be cross-examined. He attended all subsequent hearings and
questioned witnesses. On 8 March 2002 the trial court asked the applicant to
make any additional statements on the same day. He did not do so and the trial
court proceeded with the parties’ final submissions.
The fact that the applicant and the co-accused
were not previously provided with a copy of 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.
As regards the applicant’s complaint that no
forensic expert had testified at the trial, the Supreme Court recalled that, on
18 February 2002, a forensic expert testified to the effect that the MP and his
bodyguard had died of fatal wounds to their bodies.
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.
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
On an unspecified date the applicant lodged a
constitutional complaint with the Constitutional Court relying on the same
grounds of appeal as before the lower courts.
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.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Criminal Code
Article 26 stipulates that organisers are those
persons who organise and manage the activity for the commission of the criminal
offence. Executors are those persons who carry out direct actions for the
commission of the criminal offence.
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.
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;
shall be liable to punishment of between twenty years and life
imprisonment.”
B. Code of Criminal Procedure (“CCP”)
Under Article 156 a co-defendant or a defendant
who is being prosecuted in a connected set of proceedings cannot be questioned
as a witness. However, under Article 167 a defendant in a connected set of
proceedings may be questioned upon a party’s request or ex officio.
Article 151 § 3 empowers the court to collect
evidence in respect of which there is no regulatory legal provision, provided
that it serves the purpose of proving the facts and does not restrict the
person’s free will.
Under Article 162, high-level State officials
such as the President, the Parliament’s Speaker, the Prime Minister, the
Chairman of the Constitutional Court or of the Supreme Court may give evidence
from their workplace.
Under Article 164 § 1 “when a witness who has
been summoned does not appear in the courtroom on the day and the time
specified, without there being any lawful obstacles, the court may order the
witness to be brought before it by force.”
Articles 316-322 govern the institution of
securing evidence during the stage of the criminal investigation. The parties
may request to secure evidence, 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 obtaining such evidence in the future. The
request should be submitted in writing to the court’s registry. The securing of
such evidence takes place in a hearing in the presence of the parties.
Under Article 324 § 4 investigative actions
performed after the expiry of the time-limit for the conclusion of the criminal
investigation cannot be relied on at the trial.
At the material time, Article 364 § 1 provided
for the questioning of, inter alia, witnesses at their home, in the
presence of the accused and his representative, in the event of absolute
impossibility to give evidence at trial.
Article 375, as in force at the time the
District Court’s judgment was adopted, stated that the court shall inform 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 facts a [new] legal reclassification different
from that given by the prosecutor ..., more lenient or severe, provided that
the criminal offence is within its competence”.
On 30 July 1997 the Constitutional Court ruled that Article 375
was compatible with the Constitution (decision no. 50/99). For the reclassification
of the offence, the criminal offence must come within the court’s jurisdiction.
The decision for the reclassification should be notified to the parties. If the
decision is taken by the time the court withdraws for its deliberations, the
court must re-open the proceedings, inform the parties of the reclassification
and hear their arguments.
Article 425 § 1 establishes the scope of the
examination of an appeal by the Court of Appeal. It provides that the
examination of a case by the Court of Appeal is not limited to the grounds of
appeal but extends to the whole case, namely an examination of both the facts
and the law. The Court of Appeal may make a complete re-assessment of the
evidence obtained and examined by the first-instance court, in which case it
decides afresh on the appellant’s guilt or innocence. Under Article 427 the
Court of Appeal could 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-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 case-by-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). Article 428 establishes that
the Court of Appeal may decide to dismiss the appeal and uphold the
first-instance decision, to amend the first-instance decision, to quash the
first-instance decision and terminate the criminal proceedings, or to quash the
first-instance decision and remit the case for a fresh trial.
Court of Appeal decisions may be appealed
against to the Supreme Court in compliance with one of the following
requirements of Article 432: a) the criminal law has not been respected or has
been erroneously applied; b) there have been breaches which have resulted in
the court’s judgment being declared invalid in accordance with Article 128 of
this Code; c) there have been breaches of procedural rules which have affected
the adoption of the judgment. Article 434 provides that the Supreme Court shall
examine the appeal in so far as it raises points of law. It has the right to
examine and to decide of its own motion and at any stage or instance of the
proceedings legal issues which have not been examined before. Under Article 441
the Supreme Court can decide: a) to uphold the decision of the lower court; b)
to modify the reclassification of the criminal offence, in so far as the type,
sentence and civil consequences are concerned; c) to quash the [lower court’s]
decision and to adopt a judgment without remitting the case for a rehearing to
the lower court; d) to quash the [lower court’s] decision and remit the case
for a re-hearing; e) to quash the Court of Appeal’s decision and uphold the
District Court’s decision.
C. European Convention on Mutual Assistance in
Criminal Matters (“the Mutual Assistance Convention”)
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
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 6 §§ 1 and 3 OF
THE CONVENTION
The applicant made numerous complaints under
Article 6 § 1 of the Convention. He complained that the domestic courts had
admitted evidence which had been unlawfully obtained, such as M.’s and Ç.’s
testimonies as well as his statement of 6 May 2001. He further challenged the
assessment of evidence, such as the forensic expert reports, and contended that
the domestic courts’ decisions lacked sufficient reasons.
The applicant also alleged breaches of his
rights under Article 6 § 3 (a) to (d). He complained that his court-appointed
lawyer did not have sufficient time to study the investigation file. He did not
have access to all the documents in that file and, in particular, to A.L’s
statement of 8 May 2001. The domestic courts had changed the legal reclassification
of the charges without giving him an opportunity to be informed of the nature
of the new charges and prepare an appropriate defence thereto. The applicant
was denied the opportunity to give evidence on 8 March 2002. The domestic
courts were unable to oblige Mr Berisha to give evidence. The applicant
considered him a key witness.
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
The Court considers that the applicant’s
complaints are not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. Not being inadmissible on any other grounds, they must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant submitted that he had been
without legal assistance for an initial period of 13 months, the first court-appointed
lawyer having been assigned on 4 April 2001. He was not represented by a lawyer
at the hearing of the confirmation of the lawfulness of his arrest.
Furthermore, as the court-appointed lawyer withdrew from the case on 16 March
2001, he was not given adequate time to prepare his defence.
Some evidence had been obtained unlawfully,
including A.L’s statement of 8 May 2001 which was withheld from him and M.’s
testimony which was obtained by way of a video link in breach of domestic law
and Ç.’s testimony. The applicant’s requests for the clarification of forensic
reports and the summoning of other experts were rejected. These actions, as
well as the lack of reasons in the domestic judgments, pointed to the domestic
courts’ lack of impartiality and independence.
The applicant further
contended that testifying is a civil obligation. Mr Berisha’s parliamentary
immunity could not be invoked as an obstacle preventing him from giving
evidence. Article 162 of the CCP allows high-level State officials, including
the President of the Republic, to give testimony. Had the courts been concerned
about the personal security of Mr Berisha, they could have allowed him to be
questioned in accordance with Article 364 § 1 of the CCP. While Mr Berisha did
not testify, his statements that the applicant was the author of the crime
served as the backbone for his conviction.
(a) The Government
The Government submitted that the applicant did
not raise his complaint about the lack of legal representation for an initial
period of 13 months before the domestic courts. The applicant’s ex officio
lawyer was informed of the bill of indictment on 16 March 2001 and he made no
requests for additional time to study the case file. Upon extradition, the
applicant was promptly informed of the charges against him. He reserved the
right to appoint a lawyer of his choosing. At the hearing on the validation of his
arrest, he decided to represent himself.
As regards the admission of evidence, the
Government argued that M. and Ç.’s testimonies were taken in accordance with
domestic law. A.L gave evidence at the trial and was cross-examined. The
applicant’s statement of 6 May 2001 was not admitted in evidence. The forensic
doctor gave evidence at the trial and was cross-examined by the applicant. The
applicant’s requests of 18 and 20 February 2002 for the preparation of an expert
report on P.G’s mental and psychological capacity were rejected as manifestly
ill-founded.
The Government contended that the trial court
was empowered to give the facts a new legal reclassification under Article 375
of the CCP. Furthermore, between 20 February and 8 March 2002 the court had
adjourned two hearings in order to give the applicant an opportunity to submit
his statement. On 8 March 2002 it rejected the applicant’s request for
additional time as unreasonable.
The Government further submitted that Mr
Berisha was unsuccessfully summoned on a number of occasions to give evidence.
However, he was not a decisive witness either for the prosecutor or the
applicant. He enjoyed parliamentary immunity, the lifting of which by
Parliament was a precondition to testifying. Relying on A. v. the United
Kingdom (no. 35373/97, ECHR 2002-X), the Government contended that Mr
Berisha’s parliamentary immunity did not impose a disproportionate restriction
on the applicant’s rights of defence. Moreover, security reasons had accounted
for his non-appearance. In light of an attempt to murder Mr Berisha, his
personal security could not be secured at trial.
In the Government’s view, the domestic courts’
decisions were reasoned and were based on a number of witnesses’ testimonies.
2. The Court’s assessment
(a) General principles
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).
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 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).
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, Series A no. 140; Teixeira de
Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; Jalloh v.
Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX; and Bykov v. Russia
[GC], no. 4378/02, § 88, ECHR 2009-...). It is therefore not the role of
the Court to determine, as a matter of principle, whether particular types of
evidence - for example, evidence obtained unlawfully in terms of domestic law -
may be admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a whole,
including the way in which the evidence was obtained, were fair. This involves
an examination of the “unlawfulness” in question and, where a violation of
another Convention right is concerned, the nature of the violation found (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; Heglas v. the Czech Republic, no. 5935/02, §§ 89-92, 1
March 2007; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR
2002-IX; and Bykov, cited above, § 89).
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. 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).
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, the entitlement to the guarantees of a fair trial,
including the right to examine or have examined witnesses testifying against
him (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).
However, a waiver must not run counter to any important public interest, must
be established in an unequivocal manner and requires minimum guarantees
commensurate to the waiver’s importance (see Blake v. the United Kingdom,
no. 68890/01, § 127, 26 September 2006).
(a) Application of the above principles to the
present case
The Court notes that, at the hearing of 7 May
2001 concerning the lawfulness of his arrest, the applicant represented himself
even though, the previous day, his attention had been drawn to his right to appoint
a lawyer (see paragraph 30 above). He raised no issue in this regard on appeal.
Furthermore, the applicant’s appointment of a lawyer of his choosing was
accepted by the trial court. At the hearing of 11 May 2001, the applicant’s
lawyer requested the continuation of the trial.
As regards the admission of unlawfully obtained
evidence, the Court notes that the domestic courts rejected the testimonies of
Ç. and M. as contradictory and lacking in credibility and did not rely on them.
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 and cross-examined A.L. The applicant’s statement
of 6 May 2001 was neither admitted nor used in evidence for his conviction.
The trial court rejected the applicant’s
further request for time to give additional evidence on 8 March 2002, most
likely having regard to the detailed testimony he had already given on 27 July
2001. The case file does not disclose the nature of the ‘additional evidence’
the applicant wished to give. In any event, he had the opportunity to make, and
did make, detailed written submissions on appeal.
As regards the non-appearance of Mr Berisha at
the trial, the Court recalls that paragraphs 1 and 3 (d) of Article 6 require
that the defendant be given an adequate and proper opportunity to challenge and
question a witness against him, either when he makes his statements or at a
later stage (see, amongst others, Sadak and Others v. Turkey (no. 1),
nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 64, 17 July 2001). In this
connection, the Court notes that Mr Berisha was not an eye witness. He never
made statements during the investigation or testified at trial. His statement
of 12 September 1998 was not introduced in evidence at trial, let alone
relied on by the domestic courts against the applicant. The applicant did not
show how Mr Berisha’s evidence would have been decisive in proving his
innocence of the charges.
On several occasions the trial court took
steps, albeit unsuccessfully, to summon Mr Berisha. In his submissions to this
Court, the applicant relied on Articles 162 and 364 § 1 of the CCP as
alternative ways that the authorities should have used to enable him to
question Mr Berisha (see paragraph 116 above). However, it would appear that
the applicant never invoked the above provisions in his domestic appeals.
Furthermore, the applicant’s conviction was based on and corroborated by, inter
alia, the testimonies of witnesses A.L, S.L, P.G and G.B. The Court does
not find any elements of arbitrariness or unreasonableness in the assessment of
those important pieces of evidence.
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, §§ 47-53, 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. It rejected the appeal by giving adequate reasons. The Supreme Court
also examined a further appeal concerning the reclassification of the offence.
That court was competent to afford the applicant the relief he sought (see
paragraph 91 above) but it reasonably rejected the submissions.
The Court therefore considers
that, having regard to the facts of the case file, particularly the prosecutor’s
final submissions at the trial as set out in the District Court’s judgment (see
paragraph 76 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 two courts 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. The fact that, in
the present case, the applicant’s appeals were rejected does not indicate that
the review procedures were not capable of remedying any shortcomings of the
first-instance proceedings.
Finally, the Court notes that, at all stages of
the domestic proceedings, 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.
Having regard to the above considerations, the
Court considers that the domestic proceedings, 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.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The applicant complained that Mr Berisha’s
statement of 12 September 1998 deprived him of the benefit of the
presumption of innocence under Article 6 § 2 of the Convention, which reads as
follows:
“2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”
The Court recalls that the presumption of
innocence enshrined in Article 6 § 2 is one of the elements of a fair trial. It
will be violated if a statement of a public official concerning a person
charged with a criminal offence reflects an opinion that he is guilty before he
has been proved so according to law. It suffices, even in the absence of any
formal finding, that there is some reasoning to suggest that the official
regards the accused as guilty (see, for example, Shuvalov v. Estonia, no.
14942/09, § 75, 29 May 2002; and, mutatis mutandis, Allenet de
Ribemont v. France, no. 15175/89, § 35, 10 February 1995). Whether a
statement of a public official is in breach of the principle of the presumption
of innocence must be determined in the context of the particular circumstances
in which the impugned statement was made (see Daktaras v. Lithuania, no. 42095/98, § 43, ECHR 2000-X
“Charge”, for the purposes of Article 6, may be
defined as “the official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”, a
definition that also corresponds to the test whether “the situation of the
[suspect] has been substantially affected” (see, for example, McFarlane v.
Ireland [GC], no. 31333/06, § 143, 10 September 2010).
Turning to the facts of the present case, the
Court notes that Mr Berisha’s statement, no copy of which was provided to
this Court, was made on 12 September 1998. It is clearly the case that the
statement was made prior to a “charge” being levied against the applicant or
prior to his situation being “substantially affected”. However, the statement
was such a part of the public domain to the extent that on 15 December 1999,
more than one year after it had been made, the District Court still relied on
it in ordering the applicant’s arrest. It could therefore be considered to have
had continued impact.
The Court further recalls that it has found a
breach of Article 6 § 2 of the Convention when prejudicial statements were made
against an applicant, in the press, prior to his formal finding of guilt by persons
acting as: police agents involved in the investigation (Maksim Petrov v.
Russia, no. 23185/03, 6 November 2012),
high-ranking police officers (Dovzhenko v. Ukraine, no.
36650/03, 12 January 2012; Allenet
de Ribemont v. France, 10 February 1995, Series A no. 308), Ministers (G.C.P. v. Romania,
no. 20899/03, 20 December 2011; and, Allenet de Ribemont, cited
above), the Prime Minister (Konstas v. Greece, no. 53466/07, 24 May 2011), the Chairman of Parliament (Butkevičius
v. Lithuania, no. 48297/99, ECHR 2002-II (extracts)), the head of the press service of the Ministry of
Internal Affairs (Huseyn and Others v. Azerbaijan, nos.
35485/05, 45553/05, 35680/05 and 36085/05,
26 July 2011) and the Prosecutor General (see G.C.P., cited above; Fatullayev
v. Azerbaijan, no. 40984/07, 22 April
2010; and, Butkevičius, cited above).
. Having regard to the above case-law,
and irrespective of the fact that the applicant did not explicitly invoke a
breach of Article 6 § 2 of the Convention before the national courts, the Court
considers that Mr Berisha cannot be regarded as having acted as a public official
within the meaning of Article 6 § 2 of the Convention. Mr Berisha was not
involved in the criminal investigation into the MP’s murder as a police
officer, investigator or a prosecutor. He did not hold a public office or exercise
public authority and, in fact, no powers had been formally delegated to him by
any State body. Mr Berisha acted as a private individual, in his capacity as
the chairman of a political party which was legally and financially independent
from the State. His statement, which was made in a heated political climate, could
be regarded as his party’s condemnation of the MP’s assassination. As such the
mere fact that his actions might have been socially useful in calling for justice
to be rendered does not transform him into a public official acting in the
public interest (see, mutatis mutandis, Kotov v. Russia [GC], no. 54522/00, §§ 91-107, 3
April 2012).
Under these
circumstances, the Court considers that this complaint should be declared
inadmissible as manifestly ill-founded in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 7 OF THE
CONVENTION
The applicant appears to invoke Article 7 § 1
of the Convention on the basis that he was found guilty on account of Article
78 § 2 of the CC which did not constitute a criminal offence under national law
at the time when the offence was committed.
Article 7 § 1 of the Convention 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.”
The Court notes that, in his domestic appeals,
the applicant explicitly complained about the allegedly unlawful reclassification
of the criminal offence by the domestic courts, arguing that his rights of
defence had not been respected. He did not raise any complaint, at least in
substance, to the effect that his rights under Article 7 of the Convention had
been breached.
In these circumstances, the Court rejects the
applicant’s complaint for non-exhaustion of domestic remedies in accordance
with Article 35 §§ 1 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s complaints under
Article 6 §§ 1 and 3 (a) to (d) admissible and the remainder of the application
inadmissible;
2. Holds 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 Ineta
Ziemele
Registrar President
