CASE OF CAKA v. ALBANIA
Remainder inadmissible;No violation of Art. 6-1+6-3-c;No violation of Art. 6-1+6-3-d;Violations of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
6. The applicant, Mr Lulzim Caka, was born in 1970 and is currently serving a prison sentence in Tirana, Albania. 7. On 21 July 1997 P. was murdered. On an unspecified date in 1997 a criminal investigation was opened against the applicant. During the criminal investigation, the victim's sister, A., even though she had not been present at the crime scene, stated that the applicant had killed her brother. She based her testimony on the account of three eyewitnesses, B., C. and D., who, it would appear, were questioned on an unspecified date. 8. On 6 October 1998 the judicial police, the body responsible for the conduct of the criminal investigation and the identification of the perpetrator, recommended that the criminal investigation be suspended, as the perpetrator of the crime could not be identified. However, on 15 October 1998 the prosecutor filed an indictment against the applicant with the Berat District Court (see paragraph 17 below). 9. In 1997 Albania was hit by civil unrest as a result of the fall of pyramid schemes. Army depots were looted and a very considerable number of weapons were in civilian hands. The gradual restoration of ordre public necessitated frequent police checkpoints. Consequently, on 18 March 1998 the Berat police forces set up checkpoints to conduct searches of people for illegal possession of firearms. In the early afternoon of the same day, police officers on duty at a checkpoint situated on the main road between the cities of Berat and Fier shot the applicant and X., another person riding a motorcycle with him. As a result, X. died and the applicant was seriously wounded. 10. According to the police report on the incident, two persons riding a motorcycle (identified later as the applicant and X.), did not stop when ordered to do so by the police at the first checkpoint. The police at the second checkpoint reported that the applicant, who had been driving the motorcycle, had fired at the police officers with both an automatic gun and a revolver simultaneously. The police had returned fire and shot X., the pillion passenger, dead. Notwithstanding the fact that the applicant was wounded, he had continued to shoot until he surrendered. The police reported having collected from the scene two Kalashnikov automatic guns (automatikë kallashnikov), two pistols (pistoletë), bullets and cartridges, the motorcycle, a mask, a hat, a pair of sneakers, and other things allegedly used by the applicant and X. It appears that the automatic weapons, pistols, bullets and cartridges were sent for ballistics examination. 11. On 18 March 1998 the applicant and another suspect, E., were arrested in relation to the above event (see paragraph 9-10 above). 12. The applicant was taken to hospital, where he stayed for a couple of hours for medical treatment as he had been wounded. After release from the hospital on the same day, he was remanded in custody in Berat. On 19 March 1998 the applicant was examined by a doctor, who found that his overall state of health was satisfactory. It was concluded that the injuries the applicant had sustained fell under the category of light bodily injuries requiring no more than nine days' rest. 13. On 19 March 1998 the prosecutor charged the applicant with attempted murder in collusion with others and illegal possession of firearms. During questioning the same day, the applicant did not provide any information regarding the charges levelled against him. The applicant requested the presence of his lawyer, F. 14. On 20 March 1998 the lawfulness of the applicant's arrest was confirmed by the Berat District Court. 15. On 8 April 1998 the prosecutor decided to discontinue the criminal investigation against E., finding that he had not committed any criminal offence. 16. On 9 June 1998, 22 September 1998 and 15 October 1998, when questioned by the prosecutor, the applicant was defended and represented by G., another lawyer of his own choosing. 17. On 15 October 1998 the Berat prosecutor filed a bill of indictment with the Berat District Court, accusing the applicant of the intentional murder of P. and attempted murder of police officers on 18 March 1998. It would appear that both criminal proceedings against the applicant were joined. 18. The Berat District Court commenced the trial against the applicant on 17 November 1998. Thirteen hearings were held between 17 November 1998 and 13 April 1999, on which date the proceedings were transferred to the Fier District Court (see “Transfer of proceedings” section below). Seven hearings had been adjourned owing to the absence of the prosecutor, the applicant or his lawyer. In the remaining six hearings, the applicant was represented by his lawyer, G. 19. The applicant contested the facts as submitted by the prosecution. He stated that he had been riding the motorcycle unarmed when the police officers at the second checkpoint had opened fire, without ordering him to stop. He also asked the court to summon witnesses who, at the time of the incident, had been driving on the same road. 20. At the hearings of 23 December 1998 and 6 January 1999, four witnesses, who had been driving on the same road and had seen the applicant while he was riding the motorcycle, testified that the applicant had not been carrying any weapons. 21. On 15 February 1999 the prosecutor submitted a request to the Supreme Court for the transfer of the criminal proceedings against the applicant from the Berat District Court. He argued that the state of insecurity in Berat made witnesses hesitant to testify before the court. He also mentioned the existence of “pressure of various forms, even threats to the life of the prosecutor concerning the outcome of the proceedings”. 22. On 5 March 1999 the Supreme Court granted leave to transfer the proceedings from the Berat District Court to the Fier District Court, in accordance with Article 94 of the Code of Criminal Procedure (“the CCP”). 23. Pursuant to Article 97 § 3 of the CCP, the Fier District Court was required to take a decision as regards the validity of the actions carried out by the Berat District Court. No such decision was contained in the case file. The Government submitted that the case file and acts carried out by the Berat District Court were considered valid on the strength of a certificate of 9 March 2005 issued by the Fier District Court's registrar. 24. On 25 May 1999 the applicant appointed another lawyer of his own choosing, H. 25. On 26 May 1999 the Fier District Court commenced the trial of the applicant. Twenty-four hearings were conducted between 26 May 1999 and 11 May 2000, the date on which the applicant was found guilty of the offences and sentenced to imprisonment. 26. From 26 May to 27 November 1999 ten hearings were scheduled, but adjourned owing to the absence of the applicant or his representative. No witnesses were heard and no other procedural measures were taken. On 9 November 1999 the court informed the applicant that he could appoint another counsel given the repeated absence of his lawyer H. 27. On 8 December 1999 the applicant revoked H.'s power of attorney. From 8 December 1999 to 7 February 2000, during which time five hearings were held, the applicant represented himself. No witnesses appeared or were questioned at those hearings, as a result of which they were adjourned. On 7 February 2000 the prosecutor read out witness statements which had been taken during the criminal investigation. The applicant contested the statements of witnesses B. and D. On the same day the applicant reappointed his previous lawyer H. The court decided to examine witness A. at the next hearing on 21 February 2000 in the presence of the applicant's lawyer. 28. On 21 February 2000 the court heard the testimony of A., who stated that the applicant was the murderer of her brother P. She relied on the evidence of witnesses B., C. and D. She had not been a witness at the crime scene. Neither the applicant nor his lawyer, H., questioned A. Further to the applicant's request, the Fier District Court issued several summons for the appearance of B., C. and D. However, the witnesses never appeared before the court. 29. At the hearing of 23 February 2000 the applicant appointed I. to act as his lawyer alongside H. Three police officers K., L. and M. gave evidence at the trial. In light of the discrepancies in M.'s testimony at the investigation stage and the trial proceedings, the prosecutor requested leave to challenge the testimony pursuant to Article 362 of the CCP by reading out his statement made during the criminal investigation. While the applicant and lawyer I. did not initially question M., they requested that he be cross-examined after the reading of his statement. The District Court rejected their request as they had initially waived their right to question the witness. 30. On 1 March 2000 the applicant's lawyer I. requested the court to summon M. for cross-examination. He repeated the request at the hearing of 6 March. On the same date the court rejected the request as ill-founded. It however granted the lawyer's request to summon four other police officers N., O., Q. and S. 31. On 15 and 21 March the applicant's lawyer repeated his request to summon and cross-examine M. On 21 March the court rejected the requests as ill-founded. It reasoned that M. had attended a hearing in which the accused and his lawyer had had the opportunity to put questions to him. On the same date, the court heard police officer N. The applicant was represented by his lawyer I. Witnesses O., Q. and S. never appeared and were questioned before the court, despite repeated summons and information sent by the court to the respective authorities, for example the Ministry of Justice, the Ministry of Interior and the Police General Directorate. 32. On 18 April 2000 the applicant's lawyer I. withdrew from representing the applicant. The applicant's other lawyer H. was absent. The court decided to adjourn the proceedings until 3 May 2000. 33. On 26 April 2000 the applicant's lawyer H. withdrew from representing the applicant. His reasons related to his involvement in the defence of other criminal cases. He also mentioned procedural irregularities committed by the Fier District Court, which had not served him with written summons to appear at hearings. He alleged that the court lacked impartiality. He requested the court to proceed in accordance with section 49 § 5 of the CCP. 34. On 3 May 2000 the applicant appointed another lawyer of his own choosing, J. The court decided to adjourn the proceedings until 11 May 2000. 35. On 11 May 2000 the court read a fax received from the applicant's lawyer J., whose involvement in other business did not enable him to defend the applicant. J. stated that he had not received any request to represent the applicant. The record of the hearing stated that the applicant wished to defend himself. The applicant stated that he had not been in possession of any weapons on 18 March 1998. He agreed to the reading out of statements of witnesses Q., R. and S. taken during the criminal investigation and waived his right to have witness O. questioned. The prosecutor proceeded with the reading out of the above-mentioned witnesses' statements. He then concluded with his final submissions. The applicant subsequently stated that he did not accept the charges as he had neither killed P., nor shot at the police officers. 36. On the same day the Fier District Court delivered its judgment, finding the applicant guilty as charged, and sentenced him to twenty-five years' imprisonment. 37. In relation to the charge of attempted murder of police officers, the Fier District Court based its judgment on the testimonies of four police officers K., L., M. and N. given at the hearings of 23 February and 6 March 2000 (see paragraphs 29 and 31 above) and on the statements of two witnesses made during the criminal investigation. The court took note of the crime scene investigation report, the applicant's arrest report and the ballistics report. 38. In that connection, the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report, adding that the cartridges found at the crime scene had been fired from the weapons found close to the accused. However, there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant. 39. In relation to the murder of P. on 21 July 1997, the Fier District Court based its reasoning on the testimony of A. given before the trial and the statements of witnesses B., C., and D. given during the criminal investigation (see paragraphs 7, 27 and 28 above). 40. On 16 May 2000 the applicant appealed against his conviction and sentence to the Vlora Court of Appeal, alleging a violation of the right to a fair trial. In particular, he argued that the lack of legal assistance during the trial and the fact that the court of first instance had admitted witness statements without the possibility of cross-examination of the deponents constituted a breach of the right to adversarial proceedings. Furthermore, he had been deprived of the right to cross-examine witness M. who had testified at the hearing of 23 February 2000. He also maintained that, during the stage in which the parties had made their final submissions, he had not been assisted by defence counsel. The applicant was represented before the Court of Appeal by I., who had previously withdrawn from the case on 18 April 2000 (see paragraph 32 above). 41. On 20 October 2000 the Vlora Court of Appeal dismissed the applicant's appeal and upheld the Fier District Court's judgment. In so far as the appeal was directed against the District Court's refusal to allow the applicant to cross-examine witness M., the Court of Appeal noted that at the hearing of 23 February 2000 the applicant's counsel had stated that he had no questions to ask. The applicant had addressed only one question to the witness, which was answered. The Court of Appeal rejected the applicant's complaint about the lack of legal assistance at the final hearing, relying on his statement that he wished to defend himself. 42. On 6 March 2001 the applicant appealed to the Supreme Court relying on the same grounds of appeal as before the Court of Appeal. He added that the record of the hearing of 11 May 2000 had been forged by the Fier District Court in so far as his request to be defended by a lawyer had been distorted to read that he wished to defend himself. 43. On 16 October 2001 the Supreme Court declared his appeal inadmissible as “its grounds fell outside the scope of Article 432 of the CCP”. 44. On 22 October 2003 the applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He complained about the length of his pre-trial detention and relied on Article 6 § 3 (b) and (c) and (d) of the Convention. 45. On 18 November 2003 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaint did not raise any fair trial issues, but mainly concerned the assessment of evidence which was the function of the lower courts. 46. On 6 June 2003 the applicant lodged with the Court a notarised statement by B.H., the judge who had presided over the bench of the Berat District Court in the criminal proceedings. According to B.H., the proceedings had been transferred to the Fier District Court, to the applicant's detriment, at a point when the Berat District Court had been nearing the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him. Furthermore, B.H. maintained that the Fier District Court had admitted witness statements obtained at the police station rather than those obtained during the trial before the Berat District Court. He also maintained that the Fier District Court had not considered a ballistics report submitted during the trial before the Berat District Court, from which it transpired that the automatic guns allegedly used by the applicant belonged in fact to the Berat Police Force. Moreover, he stated that the applicant's lawyers had withdrawn from defending him during the trial before the Fier District Court as a consequence of threats to their own lives and those of their families. 47. The applicant also submitted four notarised statements made by eyewitnesses who had been present some minutes before the incident and had seen the applicant riding the motorcycle unarmed and had then heard the police shooting. The same eyewitnesses gave testimony before the Berat District Court on 23 December 1998 and 6 January 1999 (see paragraph 20 above). 48. On 28 April 2008 the Court requested the Government to provide a copy of the entire investigation file and legible records of all hearings before the District Courts. On 31 July 2008 the Government provided records of all the hearings held before the District Courts. No documents from the investigation file were provided. Article 31 During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts. Article 32 1. No one shall be obliged to testify against himself or his family or to confess his guilt. 2. No one shall be declared guilty on the basis of evidence collected unlawfully. Article 33 1. Everyone has the right to be heard before being judged. 2. A person who is seeking to evade justice may not avail himself of this right. “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “The Constitutional Court shall decide: ... (f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 50. Article 49 § 5 of the CCP provides that the presence of a defence lawyer shall be required when the appointed lawyer has not been provided, has not appeared or has abandoned the defence. In such circumstances the court or the prosecutor shall appoint another lawyer as substitute, who shall exercise the rights and assume the obligations of the defence lawyer. 51. Articles 94-97 govern the transfer of proceedings. According to the wording of Article 94, as in force at the material time, “at any stage and instance during the trial, when public safety or the free will of the persons participating in the trial are impaired by serious local events which may affect the conduct of the trial and which may not be avoided by other means, the Supreme Court, further to a reasoned request by the prosecutor or the defendant, may transfer the case to another court.” Article 97 provides that the Supreme Court decides in private. A decision to grant a request for the case to be transferred shall be notified to the court in which the proceedings have been conducted and the court to which the proceedings are to be transferred. The court which had previously conducted the proceedings shall immediately transfer the procedural documents to the designated court and shall order the notification of the decision of the Supreme Court to the prosecutor, defendant and private parties. Article 97 § 3 states that “the court designated by the Supreme Court shall give a decision as to whether the actions already carried out are valid and the extent of their validity”. 52. Under Article 362 § 1, as in force at the material time, “in order to challenge, entirely or partly, the content of the testimony or when the witness refuses to testify, the parties may use the statements previously made by the witness before the prosecutor or the judicial police and which are in the case file, but only after the witness has testified to the facts and circumstances which can be contested”. Article 362 § 2 stipulated that “these statements do not constitute evidence for the facts found therein, but they can be examined by the court in order to determine the reliability of the person in question and are a constituent part of the case file”. 53. Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case. 54. Under Article 427, at the party's request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary. 55. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial. 56. The Court of Appeal's judgments may be appealed 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 result in the court's judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment. 57. Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein.