European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
LASKA AND LIKA v. ALBANIA - 12315/04 [2010] ECHR 618 (20 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/618.html
Cite as:
[2010] ECHR 618
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF
LASKA AND LIKA v. ALBANIA
(Applications
nos. 12315/04 and 17605/04)
JUDGMENT
STRASBOURG
20
April 2010
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 Laska and Lika v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Fatoş
Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 12 January 2010 and on 23 March 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in two applications (nos. 12315/04 and 17605/04)
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 two Albanian
nationals, Mr Vladimir Laska and Mr Artur Lika (“the
applicants”), on 8 March 2004.
The
applicants were represented by Mr A. Dobrushi of the European Roma
Rights Centre and were later co-represented by the Albanian Helsinki
Committee. The Albanian Government (“the Government”)
were represented by their then Agent, Ms S. Meneri, and, following
the submission of their comments on the applicants' claim for just
satisfaction, by their Agent, Mrs E. Hajro.
The
applicants complained under Article 3 of the Convention that they
were subjected to ill-treatment during police questioning in order to
force them to confess to the alleged offences. They also relied on
Article
6 § 1 of the Convention to complain about the
unfairness of the proceedings.
On 10 October 2007 the Vice-President of the Section to
which the case was allocated decided to communicate the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the applications
at the same time as their admissibility.
The
applicants and the Government each submitted further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were both born in 1980 and are currently serving prison
sentences in Burrel Prison, Albania.
A. The applicants' arrest
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.
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”).
The
police officers conducted the said search in the absence of the
applicants' lawyer.
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.
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.
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.
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..
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.
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.
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.
B. Criminal proceedings against the applicants
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.
On
11 September 2001, the prosecutor committed the applicants and B.L.
to trial on charges of armed robbery and illegal possession of
weapons.
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.
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.
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.
On
9 September 2002, the Court of Appeal upheld the District Court's
judgment.
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.
On
26 December 2002 the Supreme Court declared the appeal inadmissible
as its grounds fell outside the scope of Article 432 of the CCP.
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.
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.
C. Allegation of ill-treatment at the hands of the police
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.
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.
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.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Relevant domestic law and practice
1. Code of Criminal Procedure
The
Albanian Code of Criminal Procedure (“CCP”) in its
relevant parts reads as follows:
Article 171: Identification of persons
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.
Article 172: Performing 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.
Article 173: Identification of items
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.
Article 175: Identification of or by several persons
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.
Article 205: Search of premises
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.
Article 256: The questioning of the arrested or the
detained
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.
Article 380: Evidence used by the court
In taking a decision the court shall not make use of
evidence other than that obtained or confirmed during the trial.
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).
Supreme Court Joint Benches' judgment no. 6 of 11
October 2002
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.”
B. Relevant international law
1. Recommendation No. R (2000) 2 of the Committee of Ministers of
the Council of Europe to member states on the re-examination or
reopening of certain cases at domestic level following judgments of
the European Court of Human Rights
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.”
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.
...”
2. Obligations on States under general international
law
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:
Article 35: Restitution
“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.”
THE LAW
The
applicants complained under Article 3 of the Convention that they
were subjected to ill-treatment during police questioning in order to
force them to confess to the alleged offences.
Article
3 of the Convention reads as follows:
““No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
They
also complained about the unfairness of the proceedings against them
under Article 6 § 1 of the Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads:
““In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
I. JOINDER OF THE APPLICATIONS
Given
that the two applications concern the same facts, complaints and
domestic courts' proceedings, the Court decides that they should be
joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint about the alleged ill-treatment by
police officers
The
Government submitted that the applicants had not reported their
allegations about ill-treatment to the authorities during the
criminal investigation. Nor had they voiced this complaint in their
appeals to the Court of Appeal or the Supreme Court.
The
applicants maintained that, in the circumstances of the case, a mere
reference to non-exhaustion cannot absolve the Government from its
obligations under the Convention or be invoked as a credible argument
before this Court.
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to
bring their case against the State before the Court to use first the
remedies provided by the national legal system (see Handyside
v. the United Kingdom, 7 December 1976, § 48, Series A
no. 24). The complaints should have been made to the appropriate
domestic body, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law and,
further, that any procedural means that might prevent a breach of the
Convention should have been used (see Cardot v. France,
19 March 1991, § 34, Series A no. 200).
The
Court observes that on 24 May 2002 the District Court rejected the
applicants' complaint about the alleged ill-treatment as being
time-barred. It transpires from the case file that the applicants
did not appeal against that decision. Nor did they raise this
complaint, at least in substance, in their appeals to the Court of
Appeal and the Supreme Court. The Court concludes that the applicants
failed to exhaust domestic remedies offered by the domestic legal
system. It therefore rejects the applicants' complaint in accordance
with Article 35 §§ 1 and 4 of the Convention.
The complaint about the unfairness of proceedings
Non-exhaustion of domestic remedies
a. As regards the second applicant's failure to lodge
a constitutional appeal
The
Government submitted that the second applicant had not appealed to
the Constitutional Court in relation to his complaint concerning the
unfairness of the proceedings. They requested the Court to declare
his complaint inadmissible for non-exhaustion of domestic remedies.
The
second applicant submitted that there was no reasonable prospect of
success before the Constitutional Court given the fact that the first
applicant's appeal had been dismissed.
The
Court observes that under Article 35 normal recourse should be had by
an applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness (see Aksoy v. Turkey, 18
December 1996, § 51, Reports of Judgments and Decisions
1996-VI). An applicant cannot be regarded as having failed to exhaust
domestic remedies if he or she can show, by providing relevant
domestic case-law or any other suitable evidence, that an available
remedy which he or she has not used was bound to fail (see Kleyn
and Others v. the Netherlands [GC], nos. 39343/98,
39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI).
The
Court notes that the first applicant lodged a complaint with the
Constitutional Court. He relied on the same grounds of appeal as
lodged with the Court of Appeal and the Supreme Court by both
applicants. The first applicant's complaint was declared inadmissible
by the Constitutional Court (see paragraphs 25–26 above).
Having
regard to the fate of the first applicant's appeal to the
Constitutional Court, the Court considers that any appeal filed by
the second applicant with the Constitutional Court, who would have
relied on the same grounds of appeals as raised by the first
applicant, would have had little or virtually no reasonable prospects
of success. The complaint of the second applicant cannot therefore be
rejected for failure to lodge it with the Constitutional Court within
the meaning of Article 35 § 1 of the Convention.
The
Court therefore dismisses the Government's objection.
b. As regards the possibility for the applicants to
seek a review of their final judgment
In
their further comments on the applicants' observations, the
Government submitted a GPO's letter of 16 April 2008 stating that
“following verifications of the [applicants'] criminal
investigation file, procedural irregularities were observed in the
conduct of some investigative actions.” The Government
contended that the applicants should be required to seek a review of
their final judgment in accordance with Article 450 of the CCP, in
the light of the prosecutor's letter.
The
Court reiterates that an application for retrial or similar
extraordinary remedies cannot, as a general rule, be taken into
account for the purposes of applying Article 35 § 1 of the
Convention (see also, Williams v. the United Kingdom (dec.),
no. 32567/06, 17 February 2009).
The
Court notes that the review of a final court judgment pursuant to
Article 450 of the CCP constitutes an extraordinary remedy (see
paragraph 32 above). In these circumstances, the Court considers that
the applicants are not required to exhaust this remedy.
Were
the Government's submission to be interpreted to the effect that the
applicants lacked “victim” status, the Court observes
that a decision or measure favourable to an applicant is not in
principle sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for the breach of the
Convention (see, for example, Eckle v. Germany, judgment of 15
July 1982, Series A no. 51, p. 32, §§ 69 et seq; and Dalban
v. Romania [GC], no. 28114/95, § 44, ECHR
1999-VI). In the present case, the Government did not submit any
declaration to acknowledge any breach of the Convention. Nor is the
authorities' letter of 16 April 2008, for the reasons mentioned in
the preceding paragraphs, capable of affording the necessary and
required redress.
The
Court therefore dismisses the Government's objection.
c. Conclusion
The
Court considers that the applicants' complaints under Article 6 of
the Convention raise questions of fact and law which are sufficiently
serious that their determination should depend on an examination of
the merits. No other grounds for declaring them inadmissible have
been established. The Court therefore declares them admissible. In
accordance with its decision to apply Article 29 § 3 of the
Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. The parties' submissions
The
applicants reiterated their position that the procedure followed by
the domestic courts constituted a denial of their right to a fair
trial. They stated that the refusal of the courts to produce the
evidence, on the basis of which they were convicted (balaclavas), was
in breach of the domestic provisions. They also contested the
regularity of the identification procedure that was used by the
domestic authorities.
The
Government submitted that the identification procedure had been
conducted in accordance with the procedures prescribed by the law and
that the domestic courts had properly assessed all evidence.
The Court's assessment
1. The general principles applicable in this case
As a general rule it is for the national courts to
assess the evidence before them as well as the relevance of the
evidence which the accused seeks to adduce. The Court must however
determine whether the proceedings considered as a whole, including
the way in which evidence was taken, were fair as required by Article
6 § 1 of the Convention (see Balliu v. Albania, no.
74727/01, § 42, 16 June 2005).
It
is a fundamental aspect of the right to a fair trial that criminal
proceedings, including the elements of such proceedings which relate
to procedure, should be adversarial and that there should be equality
of arms between the prosecution and defence (see Jasper v. the
United Kingdom [GC], no. 27052/95, § 51, 16 February 2000).
The
right to an adversarial trial means in principle the opportunity for
the parties to a criminal trial to have knowledge of and comment on
all evidence adduced or observations filed with a view to influencing
the courts' decision (see Vermeulen v. Belgium, 20 February
1996, § 33, Reports of Judgments and Decisions 1996 I).
The principle of equality of arms requires “a
fair balance between the parties”, each party must be given a
reasonable opportunity to present his case under conditions that do
not place him at a substantial disadvantage vis-à-vis
his opponent (see Batsanina v. Russia,
no. 3932/02, § 22, 26 May 2009).
In
addition to being specifically mentioned in Article 6 § 2
of the Convention, a person's right in a criminal case to be presumed
innocent and to require the prosecution to bear the onus of proving
the allegations against him or her forms part of the general notion
of a fair hearing under Article 6 § 1 (see Phillips v. the
United Kingdom, no. 41087/98, § 40, ECHR 2001 VII).
Even if the primary purpose of Article 6, as far
as criminal proceedings are concerned, is to ensure a fair trial by a
“tribunal” competent to determine “any criminal
charge”, it does not follow that the Article has no application
to pre-trial proceedings (see Imbrioscia v. Switzerland,
24 November 1993, § 36, Series A no. 275). In order for the
right to a fair trial to remain sufficiently “practical and
effective” Article 6 § 1 requires that, as a rule, access
to a lawyer should be provided as from the first interrogation of a
suspect by the police, unless it is demonstrated in the light of the
particular circumstances of each case that there are compelling
reasons to restrict this right (see Salduz v. Turkey [GC], no.
36391/02, §§ 50 and 55, 27 November 2008).
2. Application of the above principles in the present case
In
the instant case, the applicants complained that the way in which the
identification parade had taken place was unfair. They further
alleged that the domestic courts never acceded to their requests to
have the material evidence (balaclavas) examined at the public
hearings in their cases. The Court will consider in turn the two
grounds of complaint before it.
The
Court observes that the applicants were found guilty essentially on
the strength of eyewitnesses' submissions obtained during the
identification parade. It notes that the eyewitnesses' evidence
resulting from the identification was the key evidence supporting the
prosecution's case against the applicants.
The
Albanian CCP clearly regulates the organisation of an identification
parade. The Court will examine whether the manner in which the
identification parade in the applicants' case was conducted was in
accordance with Article 6 fairness requirements.
In
the first place, the applicants and B. L were required to stand in
the line-up wearing white and blue balaclavas, similar in colour to
those worn by the authors of the crime. The other two persons in the
line-up wore black balaclavas, in stark contrast to the white and
blue balaclavas worn by the applicants and B.L who were accused of
committing the offence. The change of position of the persons in the
line-up did not result in any different outcome for the applicants,
as they were consistently required to wear the same colour (white and
blue) balaclavas (see paragraph 13 above). The Court finds that the
identification parade was tantamount to an open invitation to
witnesses to point the finger of guilt at both applicants and B.L. as
the perpetrators of the crime.
Moreover,
the identification parade was held in the absence of the applicants'
lawyers. It does not transpire from the case file that the applicants
waived of their own free will, either expressly or tacitly, the
entitlement to legal assistance at the time of the identification
parade (see, by contrast, Kwiatkowska v. Italy (dec.), no.
52868/99, 30 November 2000).
The
Court notes in this connection that even though the District Court
accepted that there had been irregularities at the investigation
stage, in convicting the applicants it relied on the positive
identification of the applicants made by eyewitnesses at the
identification parade. However, neither the assistance provided
subsequently by a lawyer nor the adversarial nature of ensuing
proceedings could cure the defects which had occurred during the
criminal investigation (see Salduz, cited above, § 58).
There
was no independent oversight of the fairness of the procedure or
opportunity to protest against the blatant irregularities. The Court
finds that the manifest disregard of the rights of the defence at
this stage irretrievably prejudiced the fairness of the subsequent
criminal trial.
Finally,
the Court notes that it has not been explained why the applicants'
requests to have the balaclavas used during the identification parade
produced before the court were refused. While it is true that the
right to disclosure of relevant evidence is not absolute, the Court
must scrutinise the decision-making procedure to ensure that, as far
as possible, the procedure complied with the requirements to provide
adversarial proceedings, equality of arms and incorporated adequate
safeguards to protect the interest of the accused (see Jasper,
cited above, §§ 52-53).
The
Court considers that in the circumstances of the applicants' case,
fairness demanded that they be enabled to argue that the balaclavas
they were required to wear at the identification parade, which
constituted the decisive evidence for the applicants' conviction,
were entirely different from those worn by the robbers. However, they
were denied an opportunity at the trial to redress the irregularities
which occurred at the identification parade. In this connection, the
Government did not invoke any public interest grounds for withholding
such evidence, and no such grounds are apparent from the domestic
proceedings.
In
conclusion, having regard to the above findings, the Court concludes
that the proceedings in question did not satisfy the requirements of
a fair trial. There has accordingly been a violation of Article 6 §
1 in the present case.
IV. APPLICATIONS OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
Article
46 provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
In
the instant case, the Court found that the applicants' right to a
fair trial had been seriously breached by the domestic authorities.
The Court observes that when an applicant has been convicted in
breach of his rights as guaranteed by Article 6 of the Convention, he
should, as far as possible, be put in the position in which he would
have been had the requirements of that provision not been
disregarded, and that the most appropriate form of redress would, in
principle, be trial de novo or the reopening of the
proceedings, if requested (see Caka v. Albania, no.
44023/02, § 122, 8 December 2009; Salduz,
cited above, § 72; Xheraj v. Albania, no. 37959/02,
§ 82, 29 July 2008; Öcalan v. Turkey [GC],
no. 46221/99, § 210 in fine, ECHR 2005-IV).
The
Court accordingly considers that, in the instant case, a retrial or
the reopening of the case, if requested by the applicant, represents
in principle an appropriate way of redressing the violation. This is
in keeping with the guidelines of the Committee of Ministers, which
in Recommendation No. R (2000) 2 called on the States Parties to the
Convention to introduce mechanisms for re-examining the case and
reopening the proceedings at domestic level, finding that such
measures represented “the most efficient, if not the only,
means of achieving restitution in integrum” (see
paragraph 33 above). This also reflects the principles of
international law whereby a State responsible for a wrongful act is
under an obligation to make restitution, consisting in restoring the
situation which existed before the wrongful act was committed
(Article 35 of the Draft Articles of the International Law Commission
on Responsibility of States for Internationally Wrongful Acts –
see paragraph 35 above, and, mutatis mutandis, Verein
gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2)
[GC], no. 32772/02, §§ 85-86,
ECHR 2009 ...).
The
Court notes that the respondent State's criminal legal system does
not provide for the possibility of re-examining cases, including
reopening of domestic proceedings, in the event of this Court's
finding of a serious violation of an applicant's right to a fair
trial. It is not for the Court to indicate how such a possibility is
to be secured and what form it is to take. The respondent State
remains free, subject to monitoring by the Committee of Ministers, to
choose the means by which it will discharge its obligation to put the
applicant, as far as possible, in the position he would have been in
had the requirements of the Convention not been disregarded (see
Piersack v. Belgium (Article 50), 26 October 1984, §
12, Series A no. 85), provided that such means are compatible with
the conclusions set out in the Court's judgment and with the rights
of the defence (see Lyons and Others v. the United Kingdom
(dec.), no. 15227/03, ECHR 2003-IX).
Nevertheless,
the Court considers that it is for the respondent State to remove any
obstacles in its domestic legal system that might prevent the
applicants' situation from being adequately redressed (see, amongst
other authorities, Karanović v. Bosnia and Herzegovina,
no. 39462/03, § 28, 20 November 2007) or introduce a new remedy
that would enable the applicants to have the situation repaired.
Moreover, the Contracting States are under a duty to organise their
judicial systems in such a way that their courts can meet the
requirements of the Convention. This principle also applies to the
reopening of proceedings and the re-examination of the applicants'
case (see, mutatis mutandis, Verein
gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §
97.)
B. Article 41 of the Convention
Article 41 of the Convention provides:
“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.”
The
applicants sought payment of 12,000 euros (EUR) each in respect of
the pecuniary damage they had sustained. This was based on a
calculation of lost earnings in accordance with the minimum wage in
Albania. They sought EUR 20,000 each in respect of non-pecuniary
damage.
The
Government requested the Court to reject the applicants' claim for
just satisfaction.
A. Damage
As
to the pecuniary damage allegedly caused, the Court reiterates that
there must be a clear causal connection between the damage claimed by
the applicant and the violation of the Convention (see, among others,
Dybeku v. Albania, no. 41153/06, § 65,
18 December 2007).
The
Court, having regard to its findings concerning the applicant's
complaints under Article 6 § 1, considers that no causal link
has been established between the damage alleged and the violations it
has found. The Court cannot speculate as to what the outcome of the
criminal proceedings against the applicant might have been if the
violation of the Convention had not occurred (see Polufakin and
Chernyshev v. Russia, no. 30997/02, § 216, 25
September 2008). Therefore, the Court finds it inappropriate to award
the applicants compensation for the alleged pecuniary damage.
As
regards the claim for non-pecuniary damage, ruling on an equitable
basis, the Court awards each applicant EUR 4,800, plus any tax that
may be chargeable on these amounts.
B. Costs and expenses
The
applicants did not submit a claim for costs and expenses.
Accordingly, the Court considers that there is no call to award them
any sum on that account.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join the applications;
Declares the applicants' complaint under Article
3 of the Convention inadmissible and the remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,800 (four
thousand eight hundred euros) in respect of non-pecuniary damage, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(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;
Dismisses the remainder of the applicants' claim
for just satisfaction;
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy
Registrar President
