30 March 2006

FOURTH SECTION

Application no. 29861/03 by Ismet HAXHIA against Albania lodged on 20 July 2003

Statement of Facts

The applicant, Mr Ismet Haxhia , is an Albanian national who was born in 1954 and is currently serving an imprisonment sentence in the prison of Peqin ( Albania ) . He is represented before the Court by Mr K. Loloci , a lawyer practising in Tirana.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Democratic Party MP A. Hajdari ’ s assassination and the proceedings at first instance

(a) The MP ’ s assassination

On 12 September 1998 at about 9.15 pm the Democratic Party (DP) MP Azem Hajdari and his bodyguard B.C. were assassinated, while the second bodyguard Z.N. was seriously injured as they came out of the DP headquarters in Tirana.

Mr Hajdari was a leading member of one of the two main parties in Albania which at the material time was in opposition.

The official statement issued by the DP to the media, at 11 p.m. the same day, indicated that the killing was had been ordered by the ruling Socialist P arty and that the killer had been identified as J.M., who at that time was head of the Order Police ( Policia e Rendit ) of the city of Bajram Curri .

The Democratic Party MP ’ s assassination caused a rapid build-up in tensions and protesters assaulted Albania ’ s main government building.

Further violence erupted in Tirana during Mr Hajdari ’ s funeral. A general uprising ensued, during which gunmen quickly occupied S tate television headquarters , P arliament and other major buildings.

The situation in Albania was even reported in Recommendation no. 1386 (1998) of the Parliamentary Assembly of the Coun ci l of Europe , in which the Assembly strongly condemned the political violence by both parties following the murder. It also considered that the attacks on the democratic institutions of the State could not be justified on any political grounds. Any attempt to take over power by use of force was reported as being clearly unacceptable.

The government denounced the killing s and offered a reward of 100,000 USD to anybody providing information leading to the arrest of the perpetrators.

(b) The pre-trial stage

In the days that followed the murder the police collected information on the murder from f ive witnesses. One of the witnesses, M rs R ., held that s he had had a clear view of the killer and would have been 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 Mr Hajdari and his bodyguards. Moreover, he maintained that a nother man in the driver ’ s seat had waited in a stationary position until he had gone out of the car to help to drag the wounded aggressor back into the car.

Forensic tests were carried out at the scene of the crime and ballistic examinations were carried out on an automatic gun and a hand gun found at the scene. No autops ies w ere carried out.

The investigations proved inconclusive.

In 2000, M., who was serving a prison sentence in Regina Celli prison in Italy , was questioned by the Albanian prosecutor ’ s office. He was suspected of the murder of Mr Hajdari . During the questioning a m utually beneficial agreement was proposed to M.. In exchange for his co-operation and submissions regarding the MP ’ s assassination, the prosecutor would withdraw the charges against him. M. accepted the offer. Through very confused statements h e admitted having provided the car used by the murderers.

On 26 July 2000 when questioned a second time M . accused three high ranking police officers from the city of Bajram Curri of hav ing carried out the murder , namely F.M. the Chief of Police, J.M. the head of Order Police and Iz.H . brother of the applicant and former bodyguard to Mr S. Berisha the leader of DP and currently Prime Minister of Albania . He did not accuse the applicant of involvement in the assassination of the MP.

On 13 January 2001 the prosecut or ’ s office issued five arrest warrants in respect of five high ranking police officers on suspicion of having be en involved in the assass ina tion of the MP. The arrest warrants were issued in respect of J.M., F.M. and three Haxhia brothers , i.e. the applicant, at that time the head of Traffic Police ( Policia Rrugore ) of the city of Bajram Curri , Iz.H ., former bodyguard to Mr Berisha , and I.H. police officer.

On 20 January 2001 , a habitual criminal, Ç., who was serving a prison sentence in Albania , was questioned by the prosecutor about the murder of Mr Hajdari . He maintained, inter alia , that he had seen the applicant in the same car with the persons who had been identified by M. as the murders of the MP.

(c) The applicant ’ s arrest

On 22 January 2001 the applicant was arrested and held in custody on suspicion of involvement in the conspiracy of the assass ina tion of the MP and his first bodyguard and the attempted murder of the second bodyguard Z. N..

On the same day the prosecutor ’ s office charged the applicant on two counts of murder under Articles 79 (c) and 78 of the Crim ina l Code and one count of attempted murder under Articles 78 of the Crim ina l Code . They pointed out that “ the evidence at their disposal and the press articles provided grounds for reasonable suspicions that the applicant in association with J.M. and others had committed the offences ”. In addition, the prosecutor requested to the Tirana District Court to issue an order for the applicant ’ s detention on remand in prison because there were reasonable suspicions that he might impede the investigation by influencing witnesses and destroying material evidence.

On 24 January 2001 the Tirana District Court confirmed the applicant ’ s arrest and ordered his detention on remand in prison.

On 31 January 2001 the applicant appealed against the District Court decision on his detention on remand, on the grounds that the prosecutor had not filed sufficient and detailed evidence against him.

On 9 February 2001 the Supreme Court, holding the applicant ’ s grounds of appeal, partly quashed the District Court decision in the part in respect of the applicant ’ s arrest . However, the court upheld the part of the decision that ordered the applicant ’ s detention on remand in prison.

On 6 March 2001 during investigation, the applicant stated that on the night of the murder he was in a hotel situated near the Democratic Party headquarters. At the time of the assassination he was having dinner in the restaurant of the hotel accompanied by other persons. His car was parked close to the hotel and the DP headquarters.

On 10 March 2001 , during the investigation stage, the prosecutor requested the court to grant leave to obtain as evidence the testimony of Ç., who, notwithstanding the fact that he was serving a prison sentence in Albania , might have been at risk of violence . On the same day, in the presence of the applicant and F.M. but in the absence of J M., Iz.H . and M (at that time a defendant but later classified as a witness) and despite the claims of the defendants that they had had insufficient time for the preparation of their defence, the court granted leave to obtain the testimony of Ç . the next day.

On Sunday 11 March 2001 before the Tirana District Court, Ç , inter alia, maintained, contradicting his first submissions made on 20 January 2001 , that he had seen the applicant ’ s car at the scene of the crime and not the applicant in person. According to him the applicant arrived in a black car some minutes after the shootings.

(d) District Court proceedings

On 13 March 2001 the prosecutor ’ s office requested the Tirana District Court to initiate criminal proceedings against the applicant, the h ead of the Traffic P olice, F. M., the Chief of Police J.M., the h ead of the Order Police, Iz.H ., the former bodyguard of S. Berisha and I.H., a police officer. They were indicted for having participated in or organised the assass ina tion of an MP, the murder and the attempted murder of civilians. According to the prosecutor, the accused had aided and abetted F.H., at that time a high-ranking police officer of the city of Bajram Curri , in organising the assassination of the MP, who in a speech in Parliament had accused F.H. of being involved in illegal trafficking.

On 3 April 2001 the Tirana District Court held the first hearing in the crim ina l proceedings concerning Mr Hajdari ’ s assassination, the so-called “ Hajdari case ”. At the hearings , the applicant unsuccessfully requested an extension of the 15 days allowed to the parties to examine the documents relating to the trial.

At the hearings of 25 July 2001 the court obtained the testimony of L., a former police officer at the police station in the city of Bajram Curri , who during the investigation stage had been questioned by the prosecutor on suspicion of conspiracy to carry out the murder.

According to L. ’ s submissions during the trial on 10 September 1998, two days before the assassination, he had been ordered by J.M, the person in command at the material time, to prepare a police van and travel to Tirana in his company together with F.H and E.H., both former high ranking police officers of the city of Bajram Curri , and N.C. on the day of the murder Iz.H , had joined the group of persons coming from Bajram Curri . In the late afternoon of 12 September 1998 the group had travelled as follows in the direction of the DP headquarters: L., Iz.H , and E.H were in the police van, and J.M., F.H and N.C. were in a Mercedes Benz-type car with a police warning light. The persons travelling in the van HAD waited for the persons travelling in the Benz car which stopped in an area near the DP headquarters not in view of the scene of the crime. After having heard shooting from an automatic gun F.H had sent them a m essage to meet near Tirana Civil Hospital because N.C was gravely wounded. After having taken N.C. to the hospital they returned to Tropoja in police cars and had managed to pass police roadblocks on the way without any problems. L. maintained that despite the fact that on the same day, the applicant travelled in his car in the direction of Tirana, he had not seen him co-operate with the persons who assassinated the MP.

On an unspecified date the court obtained the testimony of B.P; H.M and A.P who maintained that at the time of the assassination of Mr Hajdari the applicant was having dinner in a restaurant nearby the crime scene.

On 9 July 2001 the court obtained the testimony of M.H., father of F.H. He stated that following the murder by unknown persons of his elder son in January 1998 his family had well-founded suspicions that Mr Hajdari had been an accomplice to the murder. He declared that he had met the MP some days before his assassination at the latter ’ s request. Mr Hajdari had provided him with relevant info rmation relating to the persons who had been involved in the murder . According to M.H., after that meeting he and F.H . had no reason to believe that the MP had been responsible for the murder of his son and consequently had no blood feud with him.

On 20 October 2001 the court heard the testimony of M., in his capacity as co-defendant, via a video link from Italy . The applicant and his representative left the hearing room in protest. According to the applicant, the admissibility of evidence via video link was not provided for by the procedural laws in force in the material time.

On an unspecified date the court obtained the written submissions of Z.N., the bodyguard of Mr Hajdari who on the date of the latter ’ s assassination had been gravely wounded. In contradiction to the submissions he had made on the days that followed the murder he stated, inter alia , that as far as he could remember J.M. could have been the person who had shot the MP. He made no affirmation on the presence of the applicant at the scene of the crime.

On 20 February 2002 the court granted leave to the applicant ’ s request and obtained the testimony of Ç. at the trial. He stated that at about 9 p.m. on 12 September 1998 he had been sitting inside a café bar 60 metres away from the scene of the crime. Notwithstanding the fact that it was completely dark and raining heavily, he stated that he had seen the applicant in the same car with the murderers. The applicant and the co-defendants questioned the credibility of Ç. ’ s submissions in so far as he stated that he had seen at the scene of the crime persons and cars not described by any other witnesses at all.

On 29 April 2002 the Tirana District Court found that F.H. (who had been murdered on 10 September 1998 by unknown persons), J.M. and N.C. had shot Mr Hajdari and his bodyguards and that the applicant and Iz.H ., by reason of their deep and long-lasting relationship with the DP ’ s leaders, had aided and abetted their criminal actions.

The court also held that Mr Hajdari had been assassinated not on political grounds but for vendetta-related purposes. The applicant and the other co-defendants had aided and abetted F.H. in committing the murder as he had intended to avenge the murder of his older brother. Consequently, the court reclassified the charges against the applicant and the other co-defendants as murder on blood-feud grounds (Article 78 § 2 of the Criminal Code) instead of murder of an MP on political grounds (Article 79 (c)).

T he District Court held , inter alia , that the applicant had participated in the organi sation of the murder of the MP even if he had played a simple role i.e. travelling with the murderers from the city of Bajram Curri to Tirana; parking his car (nameplate Police 203) near the DP headquarters, to support the murderers in their actions and participat ing with them in N.C. ’ s funeral ceremony.

He was found guilty of the murder of the MP and was sentenced to 20 years ’ imprisonment.

The court also ruled that the submissions of Ç. and M. had been contradictory and consequently not credible as a basis for finding I.H. and F.M. guilty. Notwithstanding that, the court principally based its findings as to the applicant ’ s conviction on the testimonies of L., Ç. and M.

(e) Proceedings to challenge the district court decision body

On 29 October 2001 at 10 a. m . the applicant lodged a petition with the Tirana District Court to challenge the decision body of the D istrict C ourt which he alleged was biased. The petition was transmitted for decision to the Tirana Court of Appeal.

On the same day at 12.30, in the applicant ’ s absence and after having obtained the submissions of the prosecutor ’ s office which maintained that the district court decision body ’ s conduct was impartial, the Court of Appeal dismissed the applicant ’ s request as unsubstantiated.

On 13 November 2001 the applicant lodged a motion with the Supreme Court to challenge the decision of the Court of Appeal.

He had no reply to his request.

2. P roceedings in the a ppellate cour ts

On 8 July 2002 the applicant lodged an appeal with the Tirana Court of Appeal, challenging the District Court judgment on the following grounds: “ that the district court granted him insufficient time to examine the documents on which the prosecutor based the charges against him; it decided on his guilt on the bases of submissions made at the pre-trial stage and on merely circumstantial evidence i.e. his having travelled in the same day with J.M , his colleague ; having had a friendship with one of the alleged murderers (F.M) or having parked his car in a spot not far from the place where the assassination occurred. Moreover, he maintained that the court in its reasoning did not spe cify his role and/or the time when he organised the criminal plot to assassin ate the MP.

On 9 July 2002 , the Tirana Court of Appeal upheld the District Court judgment and dismissed the grounds of the applicant ’ s appeal. S everal pages of the District Court judgment had clearly been pasted into the Court of Appeal ’ s judgment , which was also characteri s ed by incorrect facts and confusion about the status of witnesses , particularly as to whether they were defendants and/or witness es .

On 5 August 2002 the applicant lodged an appeal on points of law with the Supreme Court, submitting an extensive statement of his grounds of appeal.

On 14 February 2003 the Supreme Court upheld the District Court and Court of Appeal judgments. It dismissed the applicant ’ s grounds of appeal in their entirety. The court found that notwithstanding the fact that in the case-file there had been no formal decision to close of the investigation stage, the parties had had copies of all the documents in the file on the investigation. Addressing the applicant ’ s and the other co-defendants ’ grounds of appeal, relating to the failure of the authorities to grant them sufficient time to prepare the defence, the court found that the time granted to the parties by the District Court had been sufficient for them to have notice of the documents and prepare their defence.

3. Constitutional Court proceedings

On an unspecified date the applicant appealed to the Constitutional Court , alleging that the proceedings had been unfair in various respects. In particular, he complained that his arrest and the subsequent detention had been illegal insofar as he had not been info rmed of the charges against him; that the District Court that convicted him had been biased and not independent since it had used evidence given outside the trial, thus placing the applicant in a unequal position vis- Ã -vis the prosecutor; that the court had not given him adequate time to prepare his defence; and that the courts had failed to summon witnesses and experts on his behalf; that the Supreme Court was not impartial since two of its members had already r uled on the applicant ’ s arrest.

The appeal was declared ina dmissible de plano by the Constitutional Court on 9 July 2003, pursuant to section 31 of the Constitutional Court Act, as being “outside its jurisdiction”.

B. Relevant domestic law

1. Criminal Code, as amended by Law No. 8204 of 10 April 1997, Law No. 8279 of 15 January 1998, and Law No. 8733 of 24 January 2001

Article 78 of the Criminal Code, as in force at the time when the offences were committed, provided that a person convicted of premeditated homicide should be sentenced to a term of fifteen to twenty-five years of imprisonment.

Taking into consideration the revival of vendetta phenomena in the mountains of Albania , Law no. 8733 of 24 January 2001 , which came into force on 13 March 2001 , amended inter alia Article 78 of the Criminal Code by adding a new paragraph that regulates revenge killings in order to stop the total destruction of families. The new provision reads as follows:

Article 78

“1. A person convicted of premeditated homicide shall be sentenced to a term of fifteen to twenty-five years of imprisonment.

2. A person convicted of premeditated homicide because of an interest or/and vendetta shall be sentenced to a term of between twenty years and life imprisonment.”

Article 79: Intentional murder on account of the victim ’ s particular position

“A person who commits murder against: ...

(c) a m ember of parliament, judge, prosecutor, lawyer, police officer, military officer or State employee, while the victim is in office or because of the victim ’ s position, provided that it is obvious or known; ... shall be sentenced to life imprisonment or to a term of not less then twenty years of imprisonment.”

Article 253

The detention of the person suspected to have committed a crime

“ 1. When there are reasonable grounds to consider that there might be a risk for the suspected person to escape, the prosecutor can order the detention of the person suspected to have committed a crime punishable to a term not inferior then two years of imprisonment ( ... )”

Article 316

“During the pre-trial stage the prosecutor and the defendant may request that the following be admitted as evidence: ( ... )

(b) a witness ’ s testimony, when there are well-founded suspicions that the witness may be subjected to violence, threats or bribery in order not to testify or in order to give false evidence ... ”

COMPLAINTS

1. The applicant alleges that his detention was not “lawful” insofar as the domestic procedure had not been observed. In particular, there had been no “exceptional circumstances” to justify his detention before charges were laid. Furthermore, contrary to the requirements of Article 253 of the CCP , there had been no evidence to show that he would elude the investigation or obstruct the establishment of the truth if he remained at large (Article 5 § 1 (c)). Moreover, relying on Article 5 § 2 of the Convention, the applicant complains that he had not been informe d of the grounds for his arrest;

2. In the context of the criminal proceedings against him the applicant further complains under Article 6 of the Convention about a number of matters. In particular he alleges: ( a ) - that his case was not heard by an independent and impartial tribunal, given that ( i ) the D istrict C ourt bench had been selected having regard to the political attitude of its members and also that the judge who presided over his trial had a friendly relations hip with General Prosecutor at the material time ( ii ) two judges of the Supreme Court bench that deliberated on 14 February 2003 had already taken part in the bench of the same court that deliberated on the legality of his arrest on 9 February 2001 ; (iii ) the circumstances in which his trial had been conducted and his unlawful arrest had prejudiced the fairness of his trial; ( b ) - that the court obtained as evidence statements made as a consequence of a m utually beneficial agreement between the prosecutor and a key witness, who had initially been indicted for the same offence as the applicant; ( c )– that by adducing evidence via a video link the courts infringed the domestic provisions in force at the material time; ( d ) that the courts based his conviction on submissions made outside the trial; and ( e ) that the court ’ s judgment that led to his conviction was not reasoned;

3. Relying on Article 6 § 2 the applicant argues that Socialist Party MP and public officials ’ statements as to his guilt deprived him of the benefit of the presumption of innocence;

4. Under Article 6 § 3 (a) the applicant complains that he had not been informed, promptly and in detail, of the nature and cause of the accusation against him insofar as the District Court changed the charges against him at the deliberations prior to giving judgment;

5. The applicant claims that he did not have adequate time and facilities for the preparation of his defence (Article 6 § 3 (b)), for the following reasons: ( i ) his representative had only fifteen days in which to prepare his defence and to study the file, which ran to thousands of pages; ( ii) the applicant ’ s lawyers did not have access to all the documents which might have assisted the case for the defence; ( iii ) the applicant ’ s trial was conducted with too much haste; and ( iv ) the applicant had no more than two days to prepare his defence and to cross-examine the witness L., who was summoned at the last moment;

6. T he applicant complains under Article 6 §§ 1 and 3(d) of the Convention that his trial was unfair in that he was not entitled to cross-examine the witness es whose testimony had served as a basis for his conviction and was unable to obtain the appearance of experts and other persons on his behalf . In particular, the expert ’ s report on the Ç ’ s submissions would have led to his acquittal;

7. Under Article 7 § 1 of the Convention, the applicant argues that he was sentenced on account of an action which did not constitute an criminal offence under domestic law at the time it was committed in so far as he was found guilty under Article 78 § 2 of the Albanian Criminal Code, which came into force on 13 March 2001, 2 years and 6 months after the date on which the offence was committed ;

8. Lastly , t he applicant complains that in declaring his appeal inadmissible de plano on 9 July 2003 , notwithstanding the fact that his claims had constitutional grounds, the Constitutional Court violated Article 2 of Protocol No. 7 to the Convention.