European Court of Human Rights

 

 

 

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