CASE OF CAKA v. ALBANIA
(Application no. 44023/02)
8 December 2009
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 Caka v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Events preceding the applicant's arrest
1. The murder of P.
2. The attempted murder of police officers
B. The applicant's arrest
C. The trial proceedings
1. Proceedings before the Berat District Court
3. Proceedings before the Fier District Court
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.
D. The appeal proceedings
E. Further submissions
II. RELEVANT DOMESTIC LAW
49. The relevant provisions of the Albanian Constitution provide:
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.
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.
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.
Article 42 § 2
“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.”
B. Code of Criminal Procedure
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”.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
“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:
(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;
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint about the lack of adequate medical treatment while in detention
B. The complaint about the length of detention
C. The complaints about the lack of access to a lawyer and the impossibility of examining witnesses
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Alleged violation of Article 6 § 1 taken in conjunction with Article 6 § 3 (c)
The parties' submissions
The Court's assessment
B. Alleged violation of Article 6 § 1 taken in conjunction with Article 6 § 3 (d)
The parties' submissions
The Court's assessment
a. General principles
b. Application to the present case
(i) The charge of attempted murder of police officers on 18 March 1998
α. Prosecution witnesses
ß. Defence witnesses
(ii) The charge of murder of P. on 21 July 1997
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable on the date of payment;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza