FOURTH SECTION CASE OF HAXHIA v. ALBANIA

32 Pages·2013·0.37 MB·English

FOURTH SECTION

CASE OF HAXHIA v. ALBANIA

(Applications nos. 29861/03)

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.

HAXHIA v. ALBANIA JUDGMENT 1
In the case of Haxhia 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
1. The case originated in an application (no. 29861/03) 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 Ismet Haxhia (“the
applicant”), on 20 July 2003.
2. The applicant was represented by Mr K. Loloçi, 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.
3. Mr Ledi Bianku, the judge elected in respect of Albania, withdrew
from sitting in the case (Rule 28 of the Rules of Court). 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).
4. The applicant alleged a number of violations under Articles 5, 6 and 7
of the Convention.
5. 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
applications at the same time (Article 29 § 1).
2 HAXHIA v. ALBANIA JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1954 and is currently serving a sentence of
imprisonment in the prison of Peqin. At the time of the events described
below, the applicant was the head of the traffic police at the police
commissariat of Bajram Curri, a city in the north east of Albania.
A. Country background
7. In 1997 the country suffered a total breakdown of governmental
institutional structures as a result of the collapse of a number of so-called
“pyramid schemes”. Armories were looted by civilians, public order
collapsed and the country was plunged into anarchy and chaos for a number
of months.
8. In 1998 public order was marginally restored but security problems
continued, particularly in the north-eastern part of the country, including
Bajram Curri.
B. The assassination of a Member of Parliament
9. 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.
10. 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.
His assassination caused a rapid build-up in tension and on 13 September
1998 protesters stormed the Prime Minister’s building.
11. 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.
12. 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 108 below).
C. The criminal investigation into the assassination
13. Following the murder, a number of investigative actions were
conducted.
HAXHIA v. ALBANIA JUDGMENT 3
14. 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.
15. 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.
16. 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. There was no mention
of the applicant’s name or of his involvement in the crime.
17. On an unspecified date Z.N left the country for Belgium.
18. On 15 December 1999, following the publication of a statement
made by Mr Sali Berisha, who was the DP’s chairman, in which the
applicant’s name was mentioned as a participant in the MP’s murder, the
applicant voluntarily decided to make a statement to the prosecutor. He
stated, inter alia, that on the day of the murder he had been dining alone in a
restaurant, which was located close to the DP headquarters. As soon as he
heard the shots, fearing for the life of his brother, the applicant left the
restaurant and made some enquiries. He later returned to the restaurant and
started discussing the events with A.P and H.A (see paragraph 72 below).
19. 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.
20. 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, namely F.M. who used to be the Chief of Bajram
Curri police commissariat, J.M who used to be the head of public order at
the same police commissariat and I.H who used to be a former bodyguard of
Mr Berisha. J.M and I.H have lodged separate applications with the Court
(Mulosmani v. Albania, no. 29864/03 and Izet Haxhia v. Albania,
no. 34783/06). M. did not accuse the applicant of involvement in the
assassination.
21. On 16 November 2000, at the request of the Albanian prosecutor, a
Bruges investigating judge questioned Z.N. In his testimony, he stated that
4 HAXHIA v. ALBANIA JUDGMENT
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 16 above), he
alluded to that person as J.M. He stated that he did not know the applicant.
22. 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. He had
seen the applicant in his car, a Fiat Tipo, prior to the commission of the
murder. According to Ç.’s statements, F.H, J.H and N.C fired at the MP.
23. On 6 March 2001, following the applicant’s arrest (see paragraph 28
below), the prosecutor questioned him in the presence of his lawyer. He
stated that on the night of the murder he was in a hotel near the DP
headquarters. At the time of the shooting, he was having dinner in the
hotel’s restaurant accompanied by other persons. His car was parked close
to the hotel and the DP building. He denied having had any prior conflicts
with the murdered MP.
24. 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 obtain (të sigurojë provën) 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 lawyer requested
time to prepare the defence. Accordingly, the court adjourned the hearing to
11 March 2001.
25. On 11 March 2001 the District Court granted the prosecutor’s
request. The applicant and his 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 relation to 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 at the side of the DP
headquarters. He saw the applicant’s car but not the applicant in person.
When the MP came out of the DP headquarters, he met the applicant and
both had a heated argument. He then heard a pistol shot as well as automatic
gun fire. After the murder, he saw the applicant arriving in another vehicle.
The applicant enquired about the murder and left the scene.
26. On 12 March 2001 the prosecutor disjoined the criminal proceedings
against M. from the criminal proceedings against the applicant and the other
co-accused.
27. On 31 May 2002 the prosecutor dropped the charges against M. for
lack of evidence.
HAXHIA v. ALBANIA JUDGMENT 5
D. The applicant’s arrest
28. On 13 January 2001 the prosecutor’s office issued five arrest
warrants in respect of five high-ranking police officers, including the
applicant, on suspicion of involvement in the assassination of the MP, the
murder of bodyguard B.C as well as the attempted murder of bodyguard
Z.N.
29. On 22 January 2001 the applicant was arrested. He was charged with
two counts of murder under Articles 79 (c) and 78 of the Criminal Code
(“CC”) and one count of attempted murder under Article 78 of the CC.
30. On 23 January 2001 the applicant was questioned by the prosecutor.
He was informed of the charges against him and of the possibility of
appointing a lawyer. As a result, he requested to be represented by a counsel
of his own choosing. On the same day, the prosecutor requested the
validation of the applicant’s arrest.
31. At the hearing of 24 January 2001 the applicant was represented by
his own lawyer. He stated that he had travelled to Tirana on
11 September 1998 in order to buy spare parts for his business car. On the
evening of 12 September 1998 he was having dinner in a restaurant situated
close to the DP headquarters. His car was parked nearby. He maintained that
the prosecutor had submitted no evidence of his involvement in the
assassination. As he had been working for the last two years, there was no
risk of flight. The prosecutor submitted that, since the investigation was to
continue for some time, the applicant would be informed of all evidence
against him in due time. The District Court confirmed the lawfulness of the
applicant’s arrest and approved his pre-trial detention for an undefined
period because there existed reasonable suspicion that the applicant had
acted as an accomplice to the MP’s assassination (ekzistojnë dyshime të
arsyeshme...ku i pandehuri...ka marrë pjesë në rolin e bashkëpunëtorit për
kryerjen e krimit).
32. On 31 January 2001 the applicant lodged a direct appeal with the
Supreme Court against his detention arguing that the prosecutor had not
submitted sufficient and detailed evidence.
33. On 9 February 2001 the Supreme Court found that, since the District
Court had not justified a risk of flight, the applicant’s initial detention was
not lawful. However, the Supreme Court upheld his remand in custody
given the circumstances sorrounding the commission of the crime, the
danger that the offence posed to public order as well as the suspicion that
the applicant had acted as an accomplice to the commission of the offence.
It noted that the assessment of evidence was a matter for the merits of the
case.
6 HAXHIA v. ALBANIA JUDGMENT
E. The trial court’s proceedings
34. On 13 March 2001 the prosecutor lodged the bill of indictment with
the District Court. A long list of supporting documents was attached to it.
The applicant and the four 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.
35. On 16 March 2001 the applicant’s representative took possession of
the investigation file consisting of 324 documents and 1,409 pages.
1. The applicant’s requests
36. The applicant made a number of requests at the trial.
37. On 3 April 2001 the applicant’s lawyer requested thirty days to
examine the documents collected during the criminal investigation because
the prosecutor had failed to disclose any information relating to the
investigation.
38. On 3 April 2001 the District Court, at its first hearing, granted the
applicant’s request for an extension until 13 April 2001.
39. On 13 April 2001 the applicant objected to the admission in
evidence of some audio and video cassettes and of twenty-nine witnesses’
statements, whose names did not appear on the list submitted by the
prosecutor, since he had not been informed of their contents.
40. On 9 September 2001 he also requested that a number of expert
examinations be conducted: the inspection of two cars which had allegedly
been at the crime scene, a handwriting analysis of witness Ç’s signature as
well as verification of the possibility of having a clear view from a well-lit
venue into a dark street with regard to witness Ç.
41. On 17 January 2002 the trial court rejected the applicant’s requests
without giving reasons.
2. Witnesses’ testimonies
42. A number of witnesses were questioned by the trial court in
connection with the murder, including the following:
(a) Witness K.G
43. 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.
HAXHIA v. ALBANIA JUDGMENT 7
(b) Witness M.
44. 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. The applicant opposed this
request for lack of a legal basis.
45. On 1 June 2001 the applicant requested the exclusion of the
statements made by M. during the criminal proceedings from the case file.
He further requested that he be extradited from Italy so that he could be
physically present at the trial. Three other witnesses were heard.
46. 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.
47. On 29 October 2001 the court heard M. by video link. In a statement
issued on the same day the applicant and another co-accused declared their
intention not to attend the hearing given the lack of any legal basis for the
video link. They did not authorise their respective lawyers to represent them
and they reserved the right to attend other hearings.
48. During the testimony M. did not state that he had seen the applicant
before or after the murder.
49. On 3 December 2001 the applicant requested the court to dismiss
M.’s testimony and statements made during the criminal investigation on
grounds of technical shortcomings and contradictions in his evidence.
(c) Witness A.L
50. 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
statements, A.L left on a mission to Tirana late in the evening of
10 September 1998. This was at the request of J.M who was the head of
public order. No details had been given to him as to the purpose of the
mission. F.H and E.H accompanied him. 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 the applicant was driving. Upon arriving in
Tirana, after taking a nap in a hotel, A.L did not see the Fiat or the applicant
in the hotel’s parking lot. A.L did not mention having seen the applicant
during the remainder of 11 September or at any time on 12 September. A.L
returned to Bajram Curri in the evening of 12 September; no other car
accompanied them. The statement was disclosed to the accused and the
court on an unspecified date in 2001.
51. On 25 July 2001 the court heard the testimony of A.L. The applicant
and his lawyer attended the hearing and questioned A.L.
52. According to A.L’s testimony, on the evening of 10 September 1998
he had been ordered by J.H to prepare a police van and travel to Tirana.
8 HAXHIA v. ALBANIA JUDGMENT
While leaving Bajram Curri, he saw that a Fiat Tipo, which was the
applicant’s car, 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. The
applicant did not stop. Upon arrival in Tirana, they went to a hotel-bar
where he saw the applicant’s car parked. After having rested for some hours
in one of the hotel rooms, all of them, save for the applicant whose car was
no longer in sight, decided to drive around the city. A.L did not state that he
had seen the applicant on 12 September 1998.
53. On 26 July 2001 the applicant’s lawyer complained that the
prosecutor had prevented him from preparing an adequate defence by failing
to disclose A.L’s statements of 8 May 2001. The prosecutor responded that
the statements had been disclosed as soon as they had been obtained.
Additionally, the witness was summoned to testify before the court and
questioned by the applicant’s representative. According to the prosecutor,
A.L stated that he never met the applicant between 11 and 12 September,
but that he had seen his car during the break on the way to Tirana and at the
parking lot of the hotel-bar. He had not seen the car parked close to the
Unknown Soldier’s Square on the day of the crime. The trial court rejected
the applicant’s complaint.
(d) Witness J.M
54. On 27 July 2001 J.M, who was one of the co-accused, gave evidence
to the court. According to his testimony, at the request of F.H the two of
them along with E.H left Bajram Curri on the evening of 10 September
1998 in a police van driven by A.L. While leaving the city, they had crossed
the applicant who was driving in a separate car. When they reached Tirana,
the applicant took another direction in order to take care of personal matters.
55. On 30 July 2001 J.M was cross-examined by all parties.
(e) Witness P.G
56. On 20 September 2001 P.G testified. Although an eye-witness to the
murders, she did not mention having seen the applicant at the crime scene.
(f) Witness Ç.
57. On 13 June 2001 the applicant requested the court not to admit Ç.’s
testimony of 11 March 2001. Since there was no legal obstacle to Ç.’s
appearance at the trial and since his statements directly implicated the
applicant and the other co-accused, he requested that Ç. be summoned to
testify at the trial. It would appear that no decision was taken by the court.
58. On 9 November 2001 and 20 February 2002 the applicant
unsuccessfully requested the court to take some investigative actions,
including an examination of whether it would have been possible for Ç. to
see into the darkness from a well-lit place at a distance of between 60 and
150 metres.