29 March 2006

FOURTH SECTION

Application no. 29864/03 by Jaho MULOSMANI against Albania lodged on 1 August 2003

Statement of Facts

THE FACTS

The applicant, Mr Jaho Mulosmani , is an Albanian national who was born in 1977 and is currently serving a prison sentence in Tirana ( Albania ). He is represented before the Court by Mr V. Meçi , 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 bodyguards B.C. and Z.N. were shot as they came out of the DP headquarters in Tirana. Mr Hajdari and B.C. died the same day in hospital, while the second bodyguard Z.N. was seriously injured.

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 had been ordered by the ruling Socialist Party and that the killer had been identified as the applicant, 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 on 13 September 1998 protesters stormed Albania ’ s main government building.

Further violence erupted in Tirana during Mr Hajdari ’ 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 even reported in Recommendation no. 1386 (1998) of the Parliamentary Assembly of the Council 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 killings and offered a reward of 100,000 United States dollars (USD) to anybody providing info rmation leading to the arrest of the perpetrators.

(b) The pre-trial stage

On 13 September 1998 the applicant was interviewed by telepho ne by the Minister of Interior about the assassination. He stated that he had not been involved in the assassination and was at the authorities ’ disposal for any further info rmation on the event. The conversation was recorded by national TV but the tape disappeared in the following days. On the same day the Minister verbally ordered the applicant ’ s arrest. The order was not executed in view of the turmoil that followed the assassination of the MP.

In the following days the police collected info rmation on the murder from five witnesses. One of the witnesses, Mrs R., held that she 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 another man in the driver ’ s seat had waited in a stationary position until he had go t out of the car to help to drag the wounded aggressor back inside 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 handgun found at the scene. No autopsies were carried out.

The prosecutor did not question either the applicant or the DP leader Mr S. Berisha concerning the fact that the applicant had been identified by the latter as the killer.

On 25 September 1998 the prosecutor questioned Z.N. , the bodyguard of Mr Hajdari who had been wounded on the day of the MP ’ s assassination . He stated that he had seen an unknown person, dressed in military uniform, who had left the passenger seat of a Mercedes Benz car and fired an automatic gun. He also stated that he had never seen the applicant and that he was not able to identify the killer.

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 the MP. During the questioning a m utually beneficial agreement was proposed to M. In exchange for his cooperation and submissions regarding the assassination, the prosecutor would withdraw the charges against him. M. accepted the offer. Through very confused statements he admitted having provided the car used by the killers.

On 26 July 2000, when questioned a second time, M. accused three high-ranking police officers from the city of Bajram Curri of having carried out the murder, namely the applicant, F.M., the Chief of Police, and Iz.H ., bodyguard to Mr S. Berisha , the leader of the DP and currently Prime Minister of Albania.

On 13 January 2001 the prosecutor ’ s office issued five arrest warrants in respect of five high-ranking police officers on suspicion of having been involved in the assassination of the MP and his bodyguard. The arrest warrants were issued in respect of the applicant, F.M., Is.H ., Iz.H . and I.H.

On 20 January 2001 , a habitual criminal, Ç., who was serving a prison sentence in Albania , was questioned by the prosecutor ’ s office about the murder of Mr Hajdari . He maintained that he had seen the applicant armed with an automatic gun talking to the MP.

On 10 March 2001 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 Is.H and F.M. but in the absence of the applicant, 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.

On Sunday 11 March 2001 before the Tirana District Court, inter alia , Ç . , contrary to his submissions made on 20 January 2001 , maintained first that he had seen the applicant unarmed speaking to Mr Hajdari in the presence of other s and later on stated that he had seen the applicant seated in the car.

(c) District Court proceedings

On 13 March 2001 the prosecutor ’ s office requested the Tirana District Court to initiate criminal proceedings against the applicant, the head of the Order Police, Is.H ., the head of the Traffic Police, F.M., the Chief of 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 assassination of an MP, and 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 criminal proceedings concerning Mr Hajdari ’ s assassination, the so-called “ Hajdari case”. The court declared the applicant to be a fugitive and appointed a lawyer to represent him.

The representatives of the other defendants unsuccessfully requested an extension of the 15 days allowed to the parties to examine the documents relating to the trial.

On an unspecified date the applicant was arrested and remanded in custody.

On 6 May 2001 , notwithstanding the fact that criminal proceedings were in progress, the applicant was questioned by the prosecutor. The submissions were filed with the court.

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. The submissions he had made at the pre-trial stage had been filed with the court.

According to L. ’ s submissions during the trial, on 10 September 1998, two days before the assassination, he had been ordered by the applicant, 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 the applicant, 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 had returned to Tropoja in police cars and had managed to pass police roadblocks on the way without any problems. L. maintained that the next morning he had heard the news that the applicant was the killer. He also stated that the applicant had been dressed in civilian clothes and armed with a handgun and that F.H. had been dressed in military uniform and armed with an automatic gun.

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.

At the hearings of 27 July 2001 the applicant stated , among other things, that he had been to Tirana with F.H. , being un aware of the latter ’ s intention to kill the MP. According to the applicant , at about 9 p . m . on 12 September 1998 he had parked the car near the DP headquarters, since F.H. wanted to talk to Mr Hajdari 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 seats of the car and the latter was communicating with someone via police radio. The applicant admitted that he had been in the driver ’ s seat when F.H. went out of the car and fired the gun. Unarmed, he had go t out of the car to drag N.C., who was gravely wounded, into the car and take him to hospital. The applicant declared that he had identified himself to the persons on duty at the hospital, being conscious of the gravity of the event. 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 had met F.H., who told him that Mr S. Berisha had offered him USD 200,000,000 not to confess to his involvement in the assassination. In the following months the applicant ’ s father and F.H. had been murdered by unknown persons and the applicant had escaped to Kosovo, fearing for his life. He requested the court to make it possible for Mr Berisha to be present at trial in order to clarify his position and the deal with F.M .

At the hearings of 23 May 2001 , 8 June 2001 , 25 and 27 July 2001 the court unsuccessfully attempted to summon witnesses including Mr S. Berisha , at that time an MP and the leader of the DP.

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 ordered, inter alia, the compulsory appearance of Mr S. Berisha .

On 20 October 2001 the court heard the testimony of M., in his capacity as co-defendant, via a video link from Italy . The co-defendants Is. H., Iz.H . and their representatives 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 29 October 2001 the court decided to refer to the Constitutional Court the question of the order for the compulsory appearance of Mr S. Berisha , in so far as he was a MP. The Constitutional Court did not rule on the issue.

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 the applicant could have been the person who had shot the MP.

On 18 February 2002 the court obtained the testimony of B.Y., a forensic medical expert who had inspected the bodies on his own. He stated that as there had neither been an autopsy on the bodies nor an inspection of the victims ’ clothes, he presumed that Mr Hajdari and B.C. had died from thirteen and seven perforated firearm wounds, respectively, to the head and chest. He was not able to reply to the question whether the cause of death could have been the delay in giving the victims medical assistance.

On 20 February 2002 the court 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 shooting Mr Hajdari with an automatic gun. 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 8 March 2002 the court, in view of the applicant ’ s request to give evidence at the trial, asked him to give statements within that day. The applicant requested the court to grant him sufficient time to prepare his submissions. The court dismissed his request.

On 29 April 2002 the Tirana District Court found that F.H. (who had been murdered on 10 September 1998 by unknown persons), the applicant and N.C. had shot Mr Hajdari and his bodyguards and that Is.H . 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)).

The District Court held , inter alia , that the applicant had organi sed and carried out the murders. He was found guilty on two counts of murder and one count o f attempted murder and was sentenced to life 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.

2. Proceedings in the appellate courts

On 8 July 2002 the applicant lodged an appeal with the Tirana Court of Appeal, challenging the District Court ’ s 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 basis of merely circumstantial evidence and submissions made at the pre-trial stage; that the court in its reasoning did not specify the time when he organised the criminal plot to assassinate the MP; that the court did not find beyond reasonable doubt that the applicant shot the victims and the cause of death of the victims.”

On 9 July 2002 the Tirana Court of Appeal upheld the District Court ’ s judgment and dismissed the grounds of the applicant ’ s appeal as ill-founded. The applicant emphasi s ed that several 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 31 July 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 clos e 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 ir defence, the court found that the time granted by the D istrict C ourt had been sufficient for the preparation of the ir defence. Moreover, the court asserted, without giving any reason s , that notwithstanding the fact that the applicant ’ s submissions to the prosecutor had been added to the file , they had not been considered by the district court as evidence. The Supreme Court in its reasoning considered that the applicant ’ s refusal to make his submissions at the trial on 8 March 2002 should be regarded as a waiver of his rights.

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 the domestic court had decided on his guilt and sentenced him notwithstanding the fact that his responsibility for the murder had not been proved beyond reasonable doubt; that 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 and also had not given him the possibility to make submissions at the trial.

The appeal was declared inadmissible 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 164 : Compulsory appearance in court

“1. When a witness who has been summoned does not appear in the courtroom on the day and at the time specified , without there being any lawful obstacles, the court may o rder the witness to be brought before it by force ... ”

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. In the context of the criminal proceedings against him the applicant complains under Article 6 of the Convention about a number of matters. In particular, under Article 6 § 1 he alleges: (a) that his case was not heard by an independent and impartial tribunal, given that he was considered guilty of murder by politicians even before the initiation of the criminal proceedings against him; (b) that the court obtained as evidence statements made as 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.

2. Relying on Article 6 § 2, the applicant argues that Mr Berisha ’ s statements as to his guilt deprived him of the benefit of the presumption of innocence.

3. Under Article 6 § 3 (a), the applicant complains that he was not info rmed, promptly and in detail, of the nature and cause of the accusation against him in so far as the District Court changed the charges against him at the deliberations prior to giving judgment.

4. 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.

5. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that ( i ) his trial was unfair in that he was not entitled to give evidence in court; and (ii ) he was unable to obtain the appearance of a key witness, the court having failed in particular to obtain the appearance by force of Mr Berisha , whom it had summoned; and (iii) the court did not provide any impartial forensic expert reports.

6. 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.