FORMER FOURTH SECTION

CASE OF KAÇIU AND KOTORRI v. ALBANIA

(Applications nos. 33192/07 and 33194/07)

JUDGMENT

STRASBOURG

25 June 2013

FINAL

09/12/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kaçiu and Kotorri v. Albania,

The European Court of Human Rights (Former Fourth Section), sitting as a Chamber composed of:

David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 7 February 2012 and 28 May 2013,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

1. The case originated in two applications (nos. 33192/07 and 33194/07) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Albanian nationals, Mr Olsi Kaçiu (“the first applicant”) and Mr Elidon Kotorri (“the second applicant”), on 13 July 2007.

2. The applicants were represented by Mr H. Kopani, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Mrs E. Hajro and, subsequently, by Ms L. Mandia of the State Advocate’s Office.

3. The applicants made numerous complaints under Articles 3, 5 §§ 1 and 3, 6 §§ 1 and 3 (a) to (d) as well as 7 of the Convention arising out of the criminal proceedings which were brought against them in connection with the murder of three people.

4. On 21 October 2009 the President of the Fourth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

5. On 19 April 2011 the President of the Fourth Section decided to communicate an additional complaint to the Government. The parties replied in writing to each other’s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1979 and 1975 respectively. The first applicant lives in Tirana, and the second applicant is serving a sentence of life imprisonment in Peqin High Security Prison (Albania).

A. Background of the case

7. On 11 January 2000 three people were shot dead and one was seriously wounded. The crime scene report indicated that various items, including two balaclavas and two pairs of gloves, were found at the crime scene. Hairs were found on one of the pairs of gloves. On the strength of a decision of the judicial police officer, those items were sent for biological examination to identify whether human hairs could be found on them.

8. On 22 January 2000 the expert’s biological report confirmed that 12 human hairs, which contained the bulb and were in good state, had been found on the balaclavas and on one of the pairs of gloves.

9. The prosecutor’s office decided to open a criminal investigation.

B. The first applicant’s arrest

10. The first applicant was employed by the second applicant’s
family-run business.

11. On 18 April 2000, following a search in his flat the previous day, the first applicant was arrested and charged with illegal possession of ammunition found in his flat.

12. On 19 April 2000 he was questioned by the prosecutor. The record, signed by the applicant, stated that the first applicant chose to represent himself. During questioning, the applicant affirmed that the ammunition had been in his flat since the civil unrest of 1997. As regards the crime of 11 January 2000, he made self-incriminating statements which also incriminated the second applicant. He was consequently charged with failing to report the crime of 11 January 2000.

13. According to the first applicant, he made those self-incriminating statements as a result of serious violence to which he was subjected by police officers on 19 April. He contended that he was not allowed to see a lawyer of his own choosing over the course of the following two weeks.

14. On 20 April 2000 the first applicant submitted that he had to be carried by police officers to the hearing room owing to the fragile state of his health and that he bore visible signs of ill-treatment on his face. On the same date the lawfulness of his arrest was confirmed by the Tirana District Court (“the District Court”). No time-limits were imposed on the length of his detention. The first applicant was defended by a court-appointed lawyer, although he alleged that he had appointed a lawyer of his own choosing. The record indicated that the court-appointed lawyer had drawn the court’s attention to signs of the applicant having been beaten. The record, in so far as relevant, read:

“[the lawyer said]: My client does not accept the charge of failure to report the crime. He was beaten up in police custody and he still bears signs [of beating] (klienti im nuk e pranon akuzën e moskallzimit, është rrahur në polici ka edhe shenja).”

15. The first applicant appealed, seeking a change of the detention order imposed on him.

16. On 31 May and 14 July 2000 respectively the Tirana Court of Appeal (“the Court of Appeal”) and the Supreme Court upheld the District Court’s decision of 20 April 2000, finding that the first applicant’s detention was based on a reasonable suspicion that he had committed the offences in question.

C. The second applicant’s arrest

17. On 11 April 2000 the prosecutor issued an arrest warrant under Article 76 of the Criminal Code (“CC”) in respect of the second applicant on suspicion of having committed the crime of 11 January 2000.

18. On 18 April 2000 the second applicant was arrested. A record of 18 April 2000, containing statements made by the second applicant as a person under investigation (process verbal mbi deklarime nga persona ndaj të cilëve zhvillohen hetime), provided a detailed account of his activities on 11 January 2000, the date on which the offences of which he was suspected were committed. The applicant made the statements in the absence of a lawyer and signed the record. He also made statements in relation to his activities on 23 December 1999, the date on which another murder had been committed.

19. On 18 April 2000 a few hairs (fije floku) were taken from the applicant and were sent for biological examination. The applicant alleges that the hairs were taken by force.

20. On 19 April 2000 the applicant was charged under Article 78 of the CC with several counts of premeditated murder in collusion with others, in addition to illegal possession of firearms, in connection with the crime of 11 January 2000. The document stated that, on the basis of a preliminary investigation, there was sufficient information to find that the second applicant had committed the criminal offence of premeditated murder in collusion with others under Articles 78 and 25 of the CC. The second applicant was also charged with illegal possession of firearms under Article 278 § 2 of the CC.

On the same day the second applicant was asked whether he wished to be represented. He responded that he would give explanations in the presence of his lawyer, K.S. He signed both documents.

21. On 19 April 2000 the prosecutor requested the validation of the second applicant’s arrest. On the same day the expert biological report confirmed that the second applicant’s hair had the same morphological (macro- and microscopic) characteristics as four hairs found on one of the balaclavas examined on 22 January 2000.

22. On 20 April 2000 the lawfulness of the second applicant’s arrest was confirmed by the District Court, which stated that the second applicant was charged with the criminal offence of premeditated murder committed in collusion with others under Articles 78 and 25 of the CC and of the illegal possession of firearms under Article 278 § 2 of the CC. No time-limits were imposed on the length of his detention. He was represented by a lawyer of his own choosing. At the same hearing, the second applicant’s lawyer stated that his client’s arm had been bruised and that he had been left without water and food. The second applicant stated that some hairs had been taken from his head and arm.

23. On 6 May 2000 six hairs were lawfully taken from the second applicant in the presence of his lawyer, A.R., for DNA testing. As such tests could not be conducted in Albania owing to the lack of the relevant technology, it was decided to have the hairs examined in Rome, Italy.

24. On 23 October 2000 the findings of the DNA report, which had been conducted in Italy, confirmed that the DNA of the second applicant’s hair matched that of one of the hairs found on one of the balaclavas.

25. On 20 December 2000 the prosecutor supplemented the charges against the second applicant accusing him of premeditated murder of five persons, perpetrated in 1999, under Articles 78 and 25 of the CC. The latter charge was subsequently dropped for lack of substantiation.

26. On 5 January 2001 the prosecutor informed the second applicant of his decision to supplement the charges against him. The record of the questioning stated that the second applicant’s lawyer asked to see the evidence against the applicant. He was shown the above-mentioned expert reports of 19 April and 23 October 2000. He was informed that other evidence would be provided in due course, as soon as the investigation was concluded.

D. The court proceedings

27. On 12 and 19 January 2001 the applicants were committed for trial: the first applicant on the charge of failing to report a crime under Article 300 of the CC and the second applicant on several counts of premeditated murder and attempted premeditated murder committed in collusion with others, as well as illegal possession of firearms, under Articles 78 and 25 and 278 § 2 of the CC. The charge of illegal possession of ammunition in respect of the first applicant was dropped.

28. At hearings on 26 March and 4 October 2001 the first applicant confirmed that he had been subjected to violence by the police during questioning on 19 April 2000 and, as a result, had made self-incriminating statements, also incriminating the second applicant. He also declared that he had been denied access to a lawyer during the first two weeks of detention.

The record of 26 March 2001, in so far as relevant stated:

[the second applicant’s lawyer said]: [the first applicant] has been massacred and beaten up by the Durrës police and he was forced to sign the minutes.

The record of 4 October 2001, in so far as relevant, stated:

“[the first applicant said]: they [the police] took me to Durrës where they beat me up and questioned me about Elidon [the second applicant] I know nothing about the murder. They started to beat me; they said they would release me, but tell us that Elidon Kotorri murdered [him]. They filled in numerous sheets of paper and asked me to sign. I know nothing about the murder (pastaj më çuan në Durrës duke më rrahur e duke më pyetur për Elidonin. Për vrasjen nuk di asgjë. Ata filluan të më rrihnin e më thonë se do të lirojmë, po thuaj se e ka vrarë Elidon Kotorri. Mbushën shumë fletë e më thonin hidh firma. Për vrasjen që ka ndodhur nuk di asgjë).

The first statements were extracted as a result of unprecedented violence. Everything has been documented in writing. I do not accept the charge and I have been ill-treated (shpjegimet e para janë marrë me dhunë që s’ka ndodhur asnjëherë. Janë të dokumentuara me shkrim të gjitha. Nuk e pranoj akuzen dhe jam trajtuar keq).

...

I do not agree with the prosecutor’s statement... I requested [unclear] and they beat me up badly [even more]. I did not see a lawyer for two weeks (Nuk jam dakort me ato që tha prokurori...kam kërkuar dhe ato më rrahën edhe më keq. Kam qenë dy javë pa avokat).”

29. In his final submissions of 25 October 2001, the first applicant pleaded not guilty, relying on his right not to incriminate himself.

30. On 1 November 2001 the District Court found the first applicant guilty of failing to report a crime and sentenced him to three years’ imprisonment. The second applicant was also found guilty as charged and was sentenced to life imprisonment.

31. Both applicants appealed. The first applicant complained of a breach of his right not to incriminate himself as a result of statements extracted under coercion. The second applicant complained of irregularities in the preparation of the crime scene report and the DNA reports. He also complained that the questioning on 19 April 2000 of the first applicant, on the basis of whose statements he had been found guilty, had been in breach of Article 167 § 4 of the Code of Criminal Procedure (“the CCP”).

32. On 29 April 2002 expert N.C, who had prepared the DNA report, gave evidence to the court about the conduct of the DNA testing of the hairs found on the balaclavas and those taken from the second applicant. The applicants did not attend the hearing, but were represented by their lawyers, who cross-examined the expert.

33. On 10 June 2002 the Court of Appeal upheld the District Court’s judgment. Both applicants appealed to the Supreme Court, relying on the same grounds as before the Court of Appeal. The first applicant was represented by lawyer N.F. and the second applicant by lawyer G.G.

34. On 15 January 2003 the Supreme Court quashed both lower courts’ judgments on the grounds of irregularities in the criminal investigation, notably in the collection of the balaclavas and gloves and the examination of the hair. In this connection, the Supreme Court stated that the crime scene report omitted information as to what was found on the balaclavas, while it had noted the hairs found on a pair of gloves. As no separate report had been prepared, that raised questions as regards the real connection between hairs found on one of the balaclavas and hairs taken by the applicant and sent for biological examination on 6 May 2000. Additionally, the requirement laid down in Article 509 of the Code of Criminal Procedure, according to which letters rogatory to foreign authorities should be channelled through the Ministry of Justice, was not respected. The lower courts had also failed to consider some other equally important evidence, such as telephone metering information concerning the second applicant’s mobile telephone and the analysis of fingerprints found at the crime scene. The Supreme Court did not find a violation as regards the questioning of the first applicant on 19 April 2000, in so far as he had decided to represent himself at that stage.

1. The first set of retrial proceedings

35. On 28 May 2003, during the retrial proceedings, police officer A.M., who had been in charge of the crime-scene investigation, gave evidence to the court. He was questioned by both applicants concerning the collection of material evidence at the crime scene, particularly the procedure for the collection of human hairs found on the balaclavas. A.M. stated that, while hairs could be noticed with the naked eye on one pair of gloves which was noted down in the crime scene report, the balaclavas were taken for biological examination to identify the presence of human hairs in the absence of hairs visible to the naked eye.

36. N.C. was also re-questioned on an unspecified date as were two other witnesses.

37. On 18 July 2003 the District Court found the first applicant guilty of the charge of failing to report a crime on the basis of his statement of 19 April 2000. He was sentenced to two years’ imprisonment. The second applicant was found guilty of three counts of murder under Articles 78 and 25 of the CC. His conviction was based on the first applicant’s confession, the DNA reports concerning the hair, and other criminal investigation reports. He was sentenced to life imprisonment.

38. Both applicants appealed. They argued that the District Court had not complied fully with the instructions contained in the Supreme Court’s decision of 15 January 2003 as regards the lawfulness of the collection of material evidence and the assessment thereof. They also complained of a breach of the right not to incriminate oneself under coercion.

39. On 30 September 2003 the Court of Appeal quashed the District Court’s judgment and remitted the case for re-trial, finding that the District Court had not complied with the procedural measures that should have been taken in accordance with the Supreme Court’s decision of 15 January 2003. It stated, inter alia, that the lower court had failed to examine the lawfulness of the administration of material evidence. The prosecutor appealed.

40. On 10 December 2003 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case for re-trial to the same court. It found that the District Court had partly complied with the Supreme Court’s decision of 15 January 2003. It had, for instance, summoned and questioned police officer A.M. and expert N.C., who had provided detailed explanations as regards the procedure for the collection of evidence, the identification of the hairs and the conduct of the biological examination. Their testimonies enabled the court to make a proper assessment of the truthfulness and veracity of the evidence after submitting them to judicial examination together with other evidence. However, the District Court had failed to obtain telephone metering information concerning the second applicant’s mobile telephone. The Supreme Court accordingly decided that the Court of Appeal should have tried the case on points of fact and law in accordance with Article 427 of the CCP. Of the five judges who decided the appeal, two judges (K.N and S.S) had been members of the Supreme Court bench on 15 January 2003.

2. The second set of retrial proceedings

41. On 23 September 2004 the President of the Court of Appeal requested the High Council of Justice, the body responsible for the recruitment, transfer and promotion of judges and the termination of their service, to appoint three judges to hear the case against the applicants. According to his letter, all the judges of the Court of Appeal had previously sat on the benches that had heard the case against the applicants.

42. On 15 October 2004 the High Council of Justice decided, pursuant to section 28 of the Judicial System Act, to transfer three judges of the Military Court of Appeal to the Court of Appeal to hear the applicants’ case.

43. At the hearing of 2 December 2004 before the Court of Appeal the second applicant, who was represented by lawyer S.G., requested the appearance of three witnesses, N.C., A.M., and A.V. The Court of Appeal observed that two of these witnesses, N.C. and A.M., had already testified before the courts. It considered it unnecessary to call the third witness, A.V., as the documents contained in the case file were sufficient for it to proceed and to decide the case. The lawyer argued that the material evidence, namely the collection of the hairs and the DNA reports, had not been conducted in accordance with the law and there had been no analysis of fingerprints. The lawyer was given another hour, as requested, for his final speech.

44. In the final submissions the second applicant’s lawyer argued that the first applicant had made incriminating statements as a result of beating. The lawyer requested additional time of four days in order to have access to the telephone metering information and to bring to the court’s attention facts in respect of one of the victim’s allegedly infamous character. The court informed him that it had already dealt with those requests in an interim decision at a previous hearing. As regards the telephone metering information, on the basis of a letter from the telephone service provider, the court held that it was impossible to obtain such information.

45. The first applicant’s representative was not present at the same hearing. According to the record, the first applicant stated that he would say nothing and that he agreed with his lawyer’s defence.

46. On the same day the Court of Appeal upheld the District Court’s judgment of 18 July 2003. It found that all the evidence, namely the DNA reports, the first applicant’s incriminating statement and other forensic evidence, had been obtained lawfully in compliance with the CCP and the Supreme Court’s decision of 15 January 2003. The court, relying on the Supreme Court’s decision of 10 December 2003 (see paragraph 40 above), stated that the findings of the DNA tests confirmed that the hair belonged to the second applicant. Finally, the court ordered that the second applicant serve his sentence in a high-security prison. The relevant excerpts of the Court of Appeal’s decision read as follows:

“As regards the defendant’s arguments about expanding the investigation by questioning further witnesses and obtaining additional evidence, the bench considers that, in the retrial of the case, the court took into account and concluded that the material evidence was taken in full compliance with the requirements of the CCP and, consequently, all issues have been legally resolved. During the judicial examination, as well as during the rehearing, the court conducted necessary actions which convincingly and comprehensively confirmed the veracity of the probative value of the biological examination of the hairs, which were confirmed to belong to Elidon Kotorri [the second applicant].

...

The procedural actions conducted during the investigation were in compliance with the legal requirements. This also extends to the use of material evidence and, on this ground, the [lower] court’s decision is well founded and just. The collection of hairs complied with the procedural requirements and orders of the responsible authority and was examined in the laboratory. The court correctly found this evidence lawful, in conjunction with other evidence, because...it was administered in compliance with the requirements of Article 509 of the CCP.

In the examination of the case, it results that there has been no breach of the constitutional provisions of the defendant’s right [Elidon Kotorri’s]. A just, equitable and lawful trial has been conducted. It results that the procedural provisions in respect of the investigation, prosecution and the trial have been properly applied...”

47. The applicants appealed.

48. On 16 September 2005 the Supreme Court declared their appeal inadmissible as their “grounds fell outside the scope of Article 432 of the CCP”. Of the five judges who decided the case on 16 September 2005, three judges (K.N., S.S., and Y.M.) had been members of the Supreme Court bench on 10 December 2003. Judges K.N. and S.S. had also heard the applicants’ appeals on 15 January 2003.

49. Both applicants appealed to the Constitutional Court. The first applicant argued that his right not to incriminate himself had been breached. He had been forced to make self-incriminating statements in the absence of a lawyer. He had retracted his confession, but had nevertheless been convicted without any other conclusive evidence being adduced against him. He also complained that at the hearing of 2 December 2004 the Court of Appeal had failed to assign him a court-appointed lawyer. The second applicant complained that the proceedings had been unfair in so far as the first applicant’s confession statements and other unlawfully obtained evidence, namely the evidence of hairs and the conduct of DNA tests, had been admitted. He contended that he had not been promptly informed of the nature and cause of the accusation against him when he was arrested, since the charge had been re-qualified from murder under Article 76 to premeditated murder under Article 78 of the CC. He stated that he had not had the possibility to question certain witnesses. He also argued that the Court of Appeal which sat on 2 December 2004 was not a “tribunal established by law”, given that three judges from the Military Court of Appeal had been transferred to it.

50. On 6 February 2007 the Constitutional Court, sitting as a bench of three judges, declared the complaints inadmissible. It held that the applicants’ complaints did not raise any fair-trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts.

E. The length of the second applicant’s pre-trial detention

51. On an unspecified date in 2003 the second applicant sought his release as the pre-trial detention time-limits had expired.

52. On 31 July 2003 the District Court declared that it lacked competence as the merits of the second applicant’s case had been decided by its decision of 18 July 2003. It transferred the case to the Court of Appeal. The second applicant appealed.

53. On 17 February 2004 the Court of Appeal declared that it lacked jurisdiction and transferred the case to the Tirana Assize Court of Appeal (“the Assize Court of Appeal”) in accordance with the Assize Courts Act (Ligji për organizimin dhe funksiominim e Gjykatave të Krimeve të Rënda). The second applicant appealed.

54. On 21 April 2004 the Supreme Court quashed the Court of Appeal’s decision and remitted the case to the same court. It found that the case did not fall within the jurisdiction of the Assize Courts and that the Court of Appeal was competent to examine the second applicant’s request.

55. On 28 June 2004 the Court of Appeal decided to examine the request at the same time as the merits of the criminal case. The second applicant appealed.

56. On 27 July 2004 the Supreme Court found the Court of Appeal’s decision contrary to the law and quashed it.

57. On 6 September 2004 the Court of Appeal rejected the second applicant’s request and found that there had been no breach of the
applicable time-limits. The second applicant appealed.

58. On 8 November 2004 the Supreme Court quashed the Court of Appeal’s decision and found a breach in respect of the length of the applicant’s pre-trial detention. It released the second applicant from pre-trial detention and placed him under house arrest.

F. Media coverage of the second applicant’s trial

59. According to the second applicant the media mounted a virulent campaign against him. He produced numerous press articles in support of his submissions.

60. Two articles of April 2000 reported on the second applicant’s arrest. Another article of April 2004 covered the length of the second applicant’s pre-trial detention.

61. The second applicant’s release from pre-trial detention was described in six newspapers in November 2004, with details of the financial burden on the State of keeping the second applicant under house arrest.

62. Details of the second applicant’s conviction and sentence to life imprisonment by the Court of Appeal on 2 December 2004 were reported by six newspapers in December 2004.

63. Two articles in April 2005 described the dismissal of Judge D.B by the High Council of Justice. According to the articles, Judge D.B had been a member of the Court of Appeal bench which, on 30 September 2003, had decided to remit the case to the District Court. That decision, which, according to the newspapers, had a bearing on his dismissal, had contributed to the length of the second applicant’s pre-trial detention.

G. The Assize Court of Appeal’s decision in another set of proceedings

64. In a separate set of proceedings, in its decision no. 33 of 10 May 2006 the Assize Court of Appeal acquitted defendant A.L of the charge of premeditated murder in relation to the crime of 11 January 2000 (see paragraph 7 above) for want of evidence. The defendant’s conviction by the Tirana Assize District Court was based on the first applicant’s statement of 19 April 2000 made in the course of the proceedings against the first applicant (see paragraph 12 above) and on a fingerprint expert’s report.

65. The Assize Court of Appeal ruled that the first applicant’s statement, made in the course of another set of proceedings against him, did not constitute evidence for the purposes of the proceedings against A.L. within the meaning of Article 193 § 1 of the CCP (see paragraph 70 below), which would be examined and used in conjunction with other evidence. It did not rule, however, on whether the first applicant’s statement had been obtained unlawfully.

II. RELEVANT DOMESTIC AND PUBLIC INTERNATIONAL LAW

A. Provisions of domestic law

1. Constitution of Albania

66. The relevant provisions of the Albanian Constitution have been described in the Court’s judgment in the case of Shkalla v. Albania, no. 26866/05, § 28, 10 May 2011.

2. Code of Criminal Procedure

67. Article 36 provides that the statements made by the accused while in custody cannot be used as testimony. According to Article 39, during questioning while in custody, the accused is informed of the charge against him and the supporting evidence. The accused is invited to give explanations in favour of his defence and he is questioned thereafter. Should the accused refuse to answer, this is entered in the record.

68. Article 48 states that the accused has the right to choose two lawyers. Under Article 50, the lawyer is entitled, inter alia, to communicate freely and in private with the accused, to be notified beforehand of the conduct of any investigative actions where the accused is present and to participate in them. According to Article 53 § 2 an accused who is in
pre-trial detention has the right to speak to his lawyer as soon as the measure of security is enforced.

69. Article 167 § 1 provides for persons who are prosecuted separately but considered defendants in joint criminal proceedings to be questioned at the request of the other party or as of right. Article 167 § 3 provides for the persons referred to in Article 167 § 1 to be defended by a lawyer of their own choosing and, in the absence thereof, by a court-appointed lawyer. Under Article 167 § 4, before the start of questioning, the court must inform the persons referred to in paragraph 1 of their right to remain silent.

70. Article 193 § 1 allows the admission of transcripts of another set of proceedings, in so far as the transcripts relate to evidence taken before the court at the preliminary investigation stage or to evidence admitted at trial.

71. The Code of Criminal Procedure establishes that a criminal investigation may be initiated by an investigator (policia gjyqësore) or a prosecutor of their own motion, on a complaint by an individual, or by obtaining information about the offence committed from other sources (Articles 277 and 280-283). Authorisation to continue the proceedings (autorizimi për të proceduar) must be obtained in accordance with Article 288 by the district court. In the absence of an authorisation no other procedural measures are allowed (Article 289). Upon obtaining the authorisation the prosecutor shall decide whether to open criminal proceedings if there are reasons to believe that a crime has been committed, or to refuse to open criminal proceedings pursuant to Article 290. A reasoned decision explaining the refusal to open criminal proceedings must be sent to the complainant. The refusal to open criminal proceedings may be appealed to a court of general jurisdiction (Article 291).

72. Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case. Under Article 427, at the party’s request, the Court of Appeal is empowered to re-examine previous evidence and additional new materials if it considers it necessary. Article 428 describes the type of decisions the Court of Appeal may take: it may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial.

73. Appeals against the Court of Appeal’s judgments may be lodged with the Supreme Court in any of the following circumstances provided for in Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which result in the court’s judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment. Article 434 provides that the Supreme Court shall examine the appeal in so far as points of law have been raised therein.

74. Under Article 509 a letter rogatory from the domestic courts or the prosecutor’s office to a foreign authority should be addressed to the Ministry of Justice, which is responsible for their expedition. In case of urgency, the responsible domestic authority may directly expedite the letter rogatory, having informed the Ministry of Justice.

3. The Judicial System (Organisation) Act (Law no. 8436 of 28 December 1998 - Ligji për organizimin e pushtetit gjyqësor në Republikën e Shqipërisë)

75. Section 8 provides that military courts operate and are organised within the judicial system in accordance with the responsibilities defined by law. Section 9 adds that military courts are made up of first-instance military courts and military courts of appeal. The Military Court of Appeal examines appeals against the First-Instance Military Court. It sits in a panel of three judges.

76. Judges, irrespective of whether they serve in first-instance or appellate civilian or military courts, are required to undergo the same educational and professional training. Their appointment, which is not time-limited (section 25), is carried out by the High Council of Justice (“HCJ”) (section 22). They are independent in the exercise of their duties. They can be removed from office in strictly-defined circumstances, namely when: (i) they resign; (ii) they reach retirement age; (iii) they are convicted of a crime by virtue of a final court decision; (iv) they are physically or mentally incapable of discharging their duties; (v) disciplinary measures have been taken against them; (vi) and, their acts or functions are incompatible with the conditions laid down in sections 29 to 35 of the Act (section 27).

77. Section 28 states that “if a court does not operate normally owing to a temporary shortage of judges or a backlog of cases, the High Council of Justice, on the proposal of the Minister of Justice, shall transfer judges from one tribunal to another for a period of no less than 3 months per year, even without the judges’ consent. At the expiry of the set period, the judge shall return to his previous work. The High Council of Justice, on the proposal of the Minister of Justice, may appoint a judge to hear cases in another tribunal of the same level if there is a shortage of judges in that tribunal.”

B. Provisions of public international law

78. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which was adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46) and which entered into force on 26 June 1987, provides, in so far as relevant:

Article 1

“1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Article 15

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

Article 16

“1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.”

79. The Convention entered into force in respect of Albania on 11 May 1994.

THE LAW

I. JOINDER OF THE APPLICATIONS

80. Given that the two applications concern the same facts and domestic courts’ proceedings, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

81. The first applicant complained under Article 3 that he had been ill-treated by police officers during his detention and that there had been no effective investigation into his allegations. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

82. The Government argued that the first applicant had not exhausted domestic remedies because he did not formally complain to the prosecutor and that the complaint had been lodged more than six months after the alleged ill-treatment. The first applicant maintained that he was afraid to complain to the prosecutor for fear of being ill-treated again.

83. The Court considers that the Government’s objections are connected to the merits of the first applicant’s complaint and therefore decides to join them to the merits.

84. As this complaint is not inadmissible on any other ground, it must therefore be declared admissible.

B. Merits

1. The parties’ submissions

85. The first applicant claimed that, on 19 April 2000, he was beaten up by police officers. Since he was not able to walk or stand on 20 April 2000, he had had to be carried by police officers to his first hearing. The public were not allowed to attend the hearing. His court-appointed lawyer submitted at the hearing that he had been beaten up in order to extract a confession from him and that he bore visible signs of beating. However, the authorities took no action.

86. The Government submitted that the first applicant had not provided any details about the alleged ill-treatment. He had never asked to see a doctor. His representative made no such request in writing. The grammatical errors in the text of the record of 19 April 2000, which he had signed, were due to his low level of education and not the result of ill-treatment. The applicant did not raise any allegation of ill-treatment in his appeals about the lawfulness of his arrest.

2. The Court’s assessment

(a) General principles

87. Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment of punishment, irrespective of the victim’s behaviour. Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Chahal v. the United Kingdom, 15 November 1996, § 79, Reports o