CASE OF LASKA AND LIKA v. ALBANIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicants were both born in 1980 and are currently serving prison sentences in Burrel Prison, Albania. 7. On 31 March 2001, at dawn, three persons wearing blue and white balaclavas robbed a minibus on the line between Tirana and Kukës. The aggressors were armed with two Kalashnikovs and a knife. Having taken the passengers' money and jewellery, they left the scene without causing casualties. 8. Some hours after the event, the police searched houses near the scene of the crime, including that of Mr Lika (“the second applicant”), where he was having lunch with his father, his brother, B.L., and his friend, Mr Laska (“the first applicant”). 9. The police officers conducted the said search in the absence of the applicants' lawyer. 10. According to the police report of the search, the police found in the pocket of the first applicant's jacket two white T-shirts and a blue cloth, made into balaclavas. Moreover, near the house they found some grenades, but failed to find the stolen goods or the weapons that had been in the possession of the aggressors. 11. The applicants, B.L, and the father were escorted to the police station for questioning. The first applicant requested, but was refused, the presence of his lawyer (H.B). He disputed having had in his possession a balaclava or other form of mask and accused the police of manipulating the evidence. 12. On the same day, the police officers in charge of the investigation proceeded to the identification of persons and items by the victims of the robbery, pursuant to Articles 171 and 172 of the Code of Criminal Procedure (“CCP”). The applicants' lawyer was not present. 13. As to the identification of persons, the applicants and B.L., wearing blue and white home-made balaclavas, and two other persons, wearing black balaclavas, were put in a row in the same room in order to be identified. Notwithstanding the fact that the police changed the position of the persons in the room, the victims consistently identified the persons wearing blue and white balaclavas as the aggressors, that is to say the applicants and B.L.. 14. As to the identification of objects, the victims were asked to identify the balaclavas used by the aggressors, choosing among two black balaclavas, two white balaclavas and a blue one. The victims identified the white and blue balaclavas as those worn by the aggressors. 15. At 9.30 p.m. on the same day the applicants and B.L. were arrested on suspicion of armed robbery. They were questioned by the police in the absence of a lawyer, notwithstanding the fact that B.L. was a minor at the time and that the applicants had explicitly requested a lawyer to be present. The first applicant accepted that he had in his possession a white T-shirt, transformed by F.N, a police officer in charge of the investigations, into a home-made balaclava. The second applicant stated that the white T-shirt which had been found in the possession of the first applicant was not his. 16. On 2 April 2001 the applicants and B.L. were charged with one count of armed robbery and one count of illegal possession of arms. On the same day they were questioned by the prosecutor. The first applicant asked to be represented by H.B. The second applicant sought to be defended by counsel. 17. On 29 June 2001 the General Prosecutor's Office (GPO) requested to inspect the criminal investigation file in respect of the second applicant. On 10 September 2001 the GPO consented to the case being committed to trial. 18. On 11 September 2001, the prosecutor committed the applicants and B.L. to trial on charges of armed robbery and illegal possession of weapons. 19. During the hearing of 26 November 2001 before the Puke District Court, (“the District Court”), the applicants contested the charges against them and requested the domestic court to declare null and void the identification carried out by the police of persons and objects, as it had been in breach of the relevant provisions of the CCP. Moreover, they accused the police officers in charge of the investigation of manipulating the evidence against them: the applicants therefore requested the court to summon the police officers as witnesses and to produce at the trial the items considered by the police to be balaclavas, but which were, in their view, simple T-shirts. The applicants requested the domestic court to exclude the illegal evidence against them. As to the charge of illegal possession of arms, the applicants maintained that the investigation had failed to find the weapons used by the offenders during the robbery and it had not been proved that the grenades found had been in their possession. Both applicants were represented by the same counsel, P.Gj. 20. On 24 May 2002 the District Court dismissed the applicants' request to summon the police officers as witnesses, without giving reasons. Notwithstanding the fact that the court noticed certain irregularities during the investigation stage (such as the absence of a lawyer during the applicants' questioning and during the identification of persons and objects), the court found the applicants guilty of armed robbery on the basis of the eyewitnesses' identification of the applicants as the offenders. Moreover, the court found the applicants guilty of illegal possession of two Kalashnikovs and B.L guilty of possession of a knife. No weapons having been found, the applicants' conviction was based on eyewitness statements. The court sentenced the applicants to thirteen years' imprisonment and B.L. to five years' imprisonment. The applicants were ordered to serve their sentences in a high-security prison. 21. On 29 May 2002 the applicants appealed to the Shkoder Court of Appeal, (“the Court of Appeal”), on the grounds that the District Court's judgment was the result of unfair proceedings. They argued that the identification had been conducted in flagrant breach of Articles 171-175 of the CCP as they had worn the same balaclavas during the identification parade. Their lawyers' request about the nullity of the acts concerning identification had been rejected by the trial court. They also stated that none of the material evidence (balaclavas), as requested by themselves, had been produced at the trial proceedings. Moreover, the authorities had failed to find the money and the weapons that had been used in the robbery. 22. On 9 September 2002, the Court of Appeal upheld the District Court's judgment. 23. On 7 October 2002 the applicants appealed to the Supreme Court. They relied on the same grounds of appeal as before the Court of Appeal. They also alleged that both of them had been represented by the same counsel before the lower courts, at a time when there were inconsistencies in their testimonies given during the criminal investigation. 24. On 26 December 2002 the Supreme Court declared the appeal inadmissible as its grounds fell outside the scope of Article 432 of the CCP. 25. On an unspecified date the first applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He relied on the same grounds as raised before the Court of Appeal and the Supreme Court. 26. On 17 September 2004 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaints did not raise any fair trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts. 27. The applicants alleged that they had been ill-treated by F.N. and other police officers during police questioning. They alleged that they had been tied up with ropes, beaten and hosed with cold water during the interrogations. 28. At the hearings of 26 November 2001 before the District Court, the applicants alleged that they had been ill-treated by the police officers in charge of the investigation, in that the latter had attempted to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used. B.L and the applicants gave the same description of the alleged ill-treatment. 29. On 24 May 2002 the District Court rejected the applicants' requests on the ground that they had been submitted outside the six-month time-limit. No legal basis was mentioned in the judgment. 30. The Albanian Code of Criminal Procedure (“CCP”) in its relevant parts reads as follows: 1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must do the identification to describe the person (to be identified), relating all the signs he/she remembers and that person is asked whether he/she has been previously summoned to do the identification and about other circumstances, which may contribute to the accuracy of the identification. 2. Actions provided for by paragraph 1 and statements made by the person who does the identification are entered in the records. 3. Non-compliance with the provisions of paragraphs 1 and 2 is a cause for the invalidity of the identification. 1. The proceeding authority, after taking away the person who will do the identification, ensures the presence of at least two persons, looking as alike as possible, to the person to be identified. It invites the latter to choose his/her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he/she would have been seen by the person called to do the identification. After the person who will do the identification appears, the court asks the latter whether he/she knows anyone among those presented for identification, and if yes, to point out the person he/she knows and to specify whether he/she is sure. 2. When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified, the proceeding authority orders the act to be performed without the latter seeing the former. 3. The records must describe how the identification was performed. Failure to do so invalidates the identification. The proceeding authority may order, for records purposes, that the performance of the identification be photographed or filmed. 1. When the identification of material evidence or other items relevant to the criminal offence must be performed, the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable. 2. After finding, when possible, at least two similar items to the one to be identified, the proceeding authority asks the person called to identify whether he/she recognises any of them and, if the answer is yes, invites him/her to state which of them he/she recognised and to specify whether he/she is sure. 3. The records must describe how the identification was performed. Failure to do so invalidates the identification. 1. When several persons are called to do the identification of the same person or item, the proceeding authority performs it one by one separately, prohibiting any communication between the one who has done the identification and those who will do it subsequently. 2. When a person must identify several persons or items, the proceeding authority orders the person or item to be identified to be placed among different persons or items. 3. The provisions of Articles 171, 172 and 173 of the CCP are applicable. 1. The defendant, when present, and the person in possession of the premises subject to the search, is handed a copy of the search order, informing them of the right to request the presence of a person they rely on. 2. When the persons stipulated in paragraph 1 are absent, a copy of the order is handed over to a relative, neighbour or to a colleague. 3. The proceeding authority may search the persons present when it judges that they may conceal material evidence or items relating to the criminal offence. It may order that the persons present may not leave prior to the conclusion of the search and may use force to retain those who leave. The prosecutor questions the arrested or the detained person in the presence of the chosen or appointed lawyer. He shall notify the arrested or the detained person of the facts for which he is being prosecuted and of the reasons for the interrogation, making known the information available about the charge and, when the investigation would not be impaired, even the sources. In taking a decision the court shall not make use of evidence other than that obtained or confirmed during the trial. 31. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453). 32. In an effort to harmonise the legal practice, the Supreme Court Joint Benches examined the institution of judicial review in its judgment no. 6 of 11 October 2002. The relevant parts of the judgment read: “(...) It is acknowledged that the review of final judgments is an extraordinary remedy, the only one, that has been envisaged by the lawmaker in the CCP in order to put right any judicial mistakes (in respect of final court judgments). The trial that occurs, as a result of the review [proceedings], is not limited to a mere review (in the strictest sense of the word) of the previous trial. In its conclusion, the court, having examined the facts, circumstances and evidence submitted by the parties, taken together and in concert with the evidence, circumstances and facts administered and examined during the previous trial, can reach a different outcome, going as far as delivering a judgment in total contradiction to the previous one. (...) This is the reason why the lawmaker allowed for a review in strictly defined instances, which have been explicitly laid down in a special provision of the CCP, notably in Article 450 (...). According to this provision, the review can be sought by the parties only if there exists one of the requirements explicitly provided therein.” 33. On 19 January 2000, at the 694th meeting of the Ministers' Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter "the Convention"); Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms ("the Convention") the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights ("the Court") in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum; I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum; II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” 34. The explanatory memorandum on Recommendation R (2000) 2 provides, in so far as relevant, that: “... Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...” 35. Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows: “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”