CASE OF KAÇIU AND KOTORRI v. ALBANIA

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 of Judgments and Decisions 1996‑V).

88. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX).

89. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victim to act against his will or conscience (see, amongst others, Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III; Labita, cited above, § 120; Ramirez Sanchez v. France [GC], no. 59450/00, § 118, ECHR 2006‑IX; and, Jalloh, cited above, § 68).

90. In determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the Court has previously found, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment, cited above, § 167; Aksoy v. Turkey, 18 December 1996, § 63, Reports of Judgments and Decisions 1996-VI and Selmouni v. France [GC], no. 25803/94, § 96, ECHR 1999-V). In addition to the severity of the treatment, there is a purposive element to torture, as recognised also in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering for such purposes as obtaining information or a confession, punishing, intimidating, coercing, 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 (see Dikme v. Turkey, no. 20869/92, § 94, ECHR 2000‑VIII; Mikheyev v. Russia, no. 77617/01, § 149, 26 January 2006; and, Savitskyy v. Ukraine, no. 38773/05, § 127, 26 July 2012).

91. Allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence of ill-treatment, the Court has generally accepted the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Gök and Güler v. Turkey, no. 74307/01, § 33, 28 July 2009).

92. Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In particular, where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni, cited above, § 87).

93. Furthermore, where an individual makes an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation should be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see, among other authorities, Labita, cited above, § 131; Boicenco v. Moldova, no. 41088/05, § 120, 11 July 2006; and Lopata v. Russia, no. 72250/01, § 109, 13 July 2010).

(b) Application of those principles to the present case

94. The first applicant was remanded in custody on 19 April 2000. While in custody, he alleged that he had been beaten by police officers during questioning in order to make him sign a confession. He repeatedly made the same submissions to the judicial authorities, in public and in the presence of the prosecutor, at his first appearance on 20 April 2000 (when he was represented by a court-appointed lawyer who drew the court’s attention to the clear signs of the applicant having been beating), before the trial court on 26 March and 4 October 2001 and during his subsequent appeals. He further stated that he had had to be carried to the first hearing with the help of police officers.

95. The Court observes that, despite the lack of any description of the injuries sustained, the applicant raised more than an “arguable claim” with the domestic authorities that he had been seriously beaten up during the time of his remand in custody. His allegation created a presumption of fact that the applicant had been subjected to ill-treatment proscribed by Article 3 at the hands of State agents and required the Government to provide a plausible explanation as to how the alleged beating could have been caused.

96. The Government, for their part, did not submit any plausible explanation for the alleged beating. For example, it was never argued that the beating was the result of unlawful actions on the part of co-detainees or that the applicant had displayed signs of beating prior to his arrest. Nor was it disputed that the applicant had to be carried by police officers into the court room on account of his fragile state of health as a result of the severe beating which he had sustained. In this connection, the Court reiterates that proper medical examinations are an essential safeguard against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000 – X; Parnov v. Moldova, no. 35208/06, § 30, 13 July 2010) prior to, during and on release from detention.

97. Meanwhile, the applicant consistently and firmly maintained throughout the whole of the domestic proceedings that he had been brutally beaten up. Even though the authorities were made aware of the applicant’s beating, the prosecutor did not order a medical examination, seek other evidence, open a criminal investigation or, indeed, take any other steps to investigate the applicant’s repeated and serious allegations. Nor did the judge at the initial hearing request that the applicant’s clear physical discomfort be investigated. Accordingly, it was reasonable for the applicant to consider that, his defence to the criminal charges apart, other domestic remedies were ineffective (see Göçmen v. Turkey, no. 72000/01, § 49, 17 October 2006; Veznedaroğlu v. Turkey, no. 32357/96, § 34, 11 April 2000; and, Aksoy v. Turkey, 18 December 1996, §§ 54-57, Reports of Judgments and Decisions 1996-VI). On that account, the Government’s preliminary objection based on non-exhaustion of domestic remedies must be dismissed. Since the applicant’s allegations had been raised as part of his defence at all stages of the criminal proceedings, the introduction of this complaint within six-months of the end of those proceedings (the Constitutional Court’s decision of 6 February 2007) was within the time-limit contained in Article 35 § 1.

98. The Court further accepts that the applicant’s beating was of such severity that he had to be carried to the court room by police officers. Inferences can be drawn to the effect that such treatment, which had left visible traces on the applicant as evidenced at the hearing of 20 April 2000, was intentionally administered by police officers during his interrogation. The beating inflicted on the applicant was capable of arousing in him feelings of fear and anxiety likely to humiliate and debase him and break his physical or moral resistance with the purpose of extracting a confession.

99. In fact, the sequence of events demonstrates that the applicant was subjected to the reprehensible conduct of the police officers, most likely for a considerable period of time, as a consequence of which he made statements incriminating himself and the second applicant in the hope of putting an end to the severe mental and physical pain inflicted on him. The treatment complained of was of such severity as to amount to torture within the meaning of Article 3 of the Convention.

100. The Court therefore concludes that there has been a breach of Article 3 of the Convention under both its substantive and procedural limbs.

III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

101. Both applicants complained that their detention was not based on a reasonable suspicion of having committed an offence, in breach of Article 5 § 1 of the Convention. The second applicant also complained about the length of his pre-trial detention under Article 5 § 3 of the Convention. Article 5, in so far as relevant, reads as follows.

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ... ”

102. The first applicant challenged the validity of his arrest before the domestic courts and the decision of the Supreme Court of 14 July 2000 was the final decision in that respect. Since the first applicant lodged his complaint under Article 5 § 1 with this Court on 13 July 2007, that complaint has been introduced outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. The second applicant was arrested on 18 April 2000. His arrest was confirmed by the District Court’s decision of 20 April 2000 and he did not appeal against that decision. The Court therefore rejects his complaint under Article 5 § 1 of the Convention for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

103. As to the second applicant’s complaint under Article 5 § 3 about the length of his pre-trial detention, the Court recalls that pre-trial detention ends for Convention purposes with the finding of guilt and the imposition of sentence at first instance (Caka v. Albania, no. 44023/02, § 68, 8 December 2009). Although the second applicant’s detention ended on 2 December 2004 when the Court of Appeal delivered its judgment convicting him, he did not introduce this complaint until July 2007. It follows that this complaint must be rejected as having been submitted out of time in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

104. The first applicant complained under Article 6 §§ 1 and 3 (c) that he was denied access to his lawyer during the first two weeks of his detention including during police custody when he made incriminating statements.

105. Under Article 6 §§ 1 and 3 (a) to (d) of the Convention, the second applicant complained that the proceedings had been unfair in so far as the admissibility and assessment of evidence were concerned and in so far as he had not been given adequate time and facilities to prepare his defence, to have legal representation and to question witnesses. He further alleged that the Supreme Court’s benches of 16 September 2005 and 10 December 2003 lacked impartiality and that the Constitutional Court’s decision of 6 February 2007 was not adequately reasoned.

106. Under Article 6 § 1 of the Convention both applicants contended that the Court of Appeal’s bench of 2 December 2004 did not constitute “a tribunal established by law” and that the length of the proceedings was excessive.

107. Under Article 6 § 2 they complained that their right to be presumed innocent had been breached as a result of the media campaign waged against the second applicant.

Article 6 of the Convention, in so far as relevant, reads as follows.

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

A. As regards the applicants’ complaint about a breach of Article 6 §§ 1 and 3 of the Convention

1. Admissibility

108. The Government did not raise any grounds of inadmissibility in respect of this complaint.

109. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

110. The first applicant submitted that he had been ill-treated and coerced into making self-incriminating statements. His family had appointed a lawyer immediately following his arrest but he had not been allowed to consult him for two weeks with the result that the lawyer was not present when he made those statements, nor was he present during his initial court appearance on 20 April 2000.

111. The second applicant objected to the use of the first applicant’s statement incriminating him, as it had been extracted under ill-treatment contrary to Article 3 of the Convention.

112. The Government disputed the first applicant’s allegation maintaining that he had signed the confession of his own free will. Under the Code of Criminal Procedure, investigators were entitled to collect evidence in the absence of the accused’s lawyer. The first applicant or his family could have appointed a lawyer of his or their own choosing at any stage of the proceedings and they were not prevented from doing so.

113. In so far as the second applicant was concerned, the Government submitted that the first applicant’s statement had been corroborated by other evidence and had not served to convict the second applicant.

(b) The Court’s assessment

(i) General principles

114. The Court recalls that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

115. It is not the Court’s function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94, ECHR 2006‑IX; Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV).

116. Neither is not the Court’s role to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see Jalloh, cited above, § 95; Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).

117. Particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. Thus, the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of the probative value of the statements and irrespective of whether their use is decisive in securing the defendant’s conviction (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010).

(ii) Application of those principles to the first applicant’s case

118. The Court has found in the present case that the first applicant’s statements which incriminated both himself and the second applicant were extracted as a result of torture. It notes that the domestic courts admitted those statements in evidence. In the light of the principle established in Gäfgen, cited above, the Court finds that there has been a breach of Article 6 § 1 of the Convention on that ground.

119. Moreover, the applicant’s incriminating statements recorded that he had chosen to confess in the absence of a lawyer. The Court observes that the Government did not respond to the applicant’s allegation that he was refused access to his own lawyer and they did not contend that he had been reminded of his right to remain silent in the absence of a lawyer and of the consequences of his making a statement without having consulted a lawyer. The Court further considers that, having regard to the torture to which the first applicant was subjected, as a result of which he may have wished to put an end to his suffering, it cannot be said that he waived his right of access to a lawyer in an unequivocal manner, free of pressure.

120. If, as the Government allege, the applicant had a low level of education (see paragraph 86 above), this should have required further caution on the part of the authorities (see Płonka v. Poland, no. 20310/02, § 38, 31 March 2009). The Court notes that the Government have not pleaded, let alone demonstrated, that there was a compelling reason to restrict the first applicant’s access to a lawyer before making his statements (see paragraph 112 above). The impugned statements were used at the trial and in fact served as the sole basis for the applicant’s conviction (see paragraphs 37 and 46 above). Neither the assistance later provided by lawyers nor the adversarial nature of the ensuing proceedings could cure this defect (see Salduz, cited above, § 58).

121. There has accordingly been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) in respect of the first applicant.

(iii) Application of those principles to the second applicant’s case

122. In the present case, the Court notes that the second applicant was convicted, inter alia, on the strength of the incriminating statements made by the first applicant. These statements had been obtained as a result of a violation of Article 3. In the instant case, the Court must therefore decide the weight to be accorded to a third party’s incriminating statements which were obtained as a result of torture and which were subsequently used at the trial of and for the conviction of the accused.

123. In this connection, the Court shall examine the trends in its case-law as regards the use of incriminating statements obtained in breach of Article 3.

(α) As regards the use at the trial of an accused’s own incriminating statements obtained in breach of Article 3

124. The Court has established that an applicant’s self-incriminating statements obtained in breach of Article 3, irrespective of the classification of the ill-treatment, and which were used at his trial, regardless of their probative value, rendered the trial as a whole unfair (see, for example, Levinţa v. Moldova, no. 17332/03, 16 December 2008; Stanimirović v. Serbia, no. 26088/06, 18 October 2011; Iordan Petrov v. Bulgaria, no. 22926/04, 24 January 2012; Grigoryev v. Ukraine, no. 51671/07, 15 May 2012; Hajnal v. Serbia, no. 36937/06, 19 June 2012).

125. The only exception to the above case-law is the judgment in the case of Alchagin v. Russia (no. 20212/05, 17 January 2012), whereby a confession statement which had been extracted as a result of inhuman and degrading treatment contrary to Article 3 did not lead to an automatic violation of the applicant’s overall trial, on account of the fact that the confession statement had been initially made in the presence of a lawyer, that it was maintained at the trial and that the applicant’s rights of defence were secured at the trial.

(β) As regards the use at an accused’s trial of a third party’s incriminating statements obtained as a result of torture in breach of Article 3

126. The Court recalls that in the case of Harutyunyan v. Armenia (no. 36549/03, ECHR 2007‑III) it found, inter alia, that the use of witnesses’ statements which had been extracted under torture, as had been established by the domestic courts, and which had been used at the applicant’s trial to secure his conviction, rendered the trial as a whole unfair.

127. In the case of Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, 17 January 2012), with regard to an alleged flagrant denial of justice in respect of the applicant facing deportation to Jordan to stand trial, the Court ruled that the admission of co-defendants’ statements, which had been obtained by torture and incriminated the applicant, would constitute a breach of Article 6 of the Convention in the event of the applicant’s deportation and trial in Jordan.

128. The Court therefore concludes that the admission in evidence of incriminating statements obtained from a third party as a result of torture renders the proceedings as a whole unfair, irrespective of whether such evidence was decisive for securing the applicant’s own conviction. Such evidence should not be afforded the cloak of legality and used at the trial of and for the conviction of the accused as that would irretrievably damage the fairness of the trial (see, mutatis mutandis, Gäfgen, cited above § 167; and, Salduz, cited above, § 55).

(γ) Conclusion

129. For the foregoing reasons, the Court considers that the second applicant’s trial as a whole was rendered unfair on account of the admission and use of the first applicant’s incriminating statement obtained by torture.

130. There has accordingly been a breach of Article 6 § 1 of the Convention in respect of the second applicant.

B. As regards the remainder of the applicants’ complaints under Article 6 § 1 of the Convention

1. The alleged lack of impartiality of the Supreme Court

131. The second applicant complained of the lack of impartiality of the Supreme Court’s benches on 10 December 2003 and 16 September 2005.

132. The Government submitted that the second applicant had not exhausted domestic remedies.

133. The Court notes that the second applicant failed to raise this complaint before the Constitutional Court, which is competent to examine all issues of fairness under Article 6. The Court therefore considers that this complaint should be dismissed for failure to exhaust domestic remedies and rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The alleged lack of reasons in the Constitutional Court’s decision

134. The second applicant complained that the Constitutional Court’s decision of 7 February 2007 was not adequately reasoned.

135. The Court notes that when a Constitutional Court refuses to accept a constitutional appeal on the basis that the legal grounds for the case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see, amongst others, Jakupi v. Albania (dec.), no. 11186/03, 1 December 2009). Moreover, the Court recalls its findings in paragraph 129 above as regards the alleged unfairness of the proceedings.

136. For the above reasons, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. The complaint that the Court of Appeal of 2 December 2004 did not constitute “a tribunal established by law”

137. The applicants submitted that the composition of the Court of Appeal of 2 December 2004 was not lawful, since the judges were military judges. The applicants considered that the procedure followed was in breach of the law and they contested the decision taken by the High Council of Justice. In their view, the High Council of Justice should have transferred judges from other ordinary courts of appeal instead of from the military court of appeal.

138. The Government submitted that three judges from the Military Court of Appeal were transferred to hear the case because all sixteen judges serving at the Tirana Court of Appeal had, at some stage of the proceedings, been involved in hearing appeals filed by the applicants. The transfer was made to secure the impartiality of the bench and was in accordance with the domestic law.

139. Under Article 6 § 1 of the Convention, a “tribunal” must always be “established by law”. This phrase reflects the principle of the rule of law which is inherent in the entire system of the Convention and its Protocols. The phrase “established by law” covers not only the legislation concerning the establishment and jurisdiction of a tribunal (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002), but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000, and Posokhov v. Russia, no. 63486/00, § 39, ECHR 2003 IV). A “tribunal” referred to in Article 6 § 1 of the Convention must also satisfy a series of other conditions, including the independence of its members and the length of their terms of office, impartiality and the existence of procedural safeguards (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 99, ECHR 2000-VII).

140. The Court notes that under the provisions of the Judicial System Act it was, and remains, possible to transfer judges to sit on benches in courts other than their own. Certain legal requirements have to be met in order to safeguard judicial independence and to prevent the composition of benches being manipulated in any way and to guarantee a fair hearing. For example, the High Council of Justice is empowered to decide on the transfer. Moreover, the applicable provisions of the Judicial System Act limits the period for which such an assignment can be made to three months per year.

141. In the instant case, the Court notes that on 23 September 2004 the President of the Court of Appeal requested the High Council of Justice to appoint three judges to hear the applicants’ case, since all judges serving in that court had previously been involved in trying the applicants’ case. In response, on 25 October 2004 the High Council of Justice decided to transfer three judges from the Military Court of Appeal to try the applicants. The decision of the High Council of Justice was based on section 28 of the Judicial System Act.

142. The Court considers legitimate the reason for the transfer of the judges, namely to ensure the impartiality and independence of the bench. It is not for the Court to examine whether the authorities should have transferred judges from other ordinary courts of appeal, the matter remaining with the respondent Government’s discretion, but to ascertain whether the manner in which the transfer was effected and guarantees surrounding it were Article 6 compliant (see, mutatis mutandis, Incal v. Turkey, 9 June 1998, § 70, Reports 1998‑IV).

143. It is not disputed by the applicants that military court judges enjoy all the legal guarantees of independence identical to those of civilian judges. For example, they undergo the same educational and professional training which gives them the status of career members of the judiciary. They are appointed by the HCJ and are independent in the discharge of their duties. Their term of office is not limited in time and they may not be removed from office or be made to retire early unless one of the conditions required by law has been met. They remain subject to the same disciplinary and appraisal process as applicable to civilian judges (see paragraph 76 above). In the instant case, the Court observes that the applicants failed to disclose any elements which would give rise to the military court judges’ lack of independence.

144. As to the condition of “impartiality”, the applicants did not point to any circumstances which revealed a lack of objective or subjective impartiality (see Driza v. Albania, no. 33771/02, §§ 75–76, ECHR 2007‑V (extracts)) on the part of the military court judges who heard the case and convicted the applicants. No use of the Military Criminal Code was made. Finally, it has not been argued either before this Court or before the domestic courts, let alone shown, that the military court judges served beyond the statutory three-month time-limit.

145. Accordingly, the Court does not discern any breach of the domestic legislation. The Court of Appeal of 2 December 2004 was accordingly a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

4. The alleged length of the proceedings

(a) Admissibility

146. The Government did not raise any grounds of inadmissibility in respect of this complaint.

147. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

148. The applicants argued that the proceedings had lasted an unreasonable period of time. The cases against them were not complex. The delays comprised the remittals of the case by the higher courts to the lower courts. The authorities failed to take measures which would have avoided such remittals and ensured a speedy conclusion of the proceedings.

149. The Government submitted that the facts of the case were complex having regard to the criminal offences that had been committed and the number of investigative actions that had to be conducted. Consequently, this required an extension of the time-limits for the conduct of the criminal investigation. As regards the trial proceedings, the Government stated that a considerable number of witnesses had been questioned. They further attributed the length of the proceedings to the applicants, who had appealed against every decision of a lower court to a higher court. In their opinion, the proceedings had been conducted within a reasonable time.

150. The Court notes that the proceedings started on 18 April 2000, when the applicants were arrested, and ended on 6 February 2007 with the Constitutional Court’s decision. Thus the period to be considered is approximately 6 years and 11 months.

151. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Sürmeli v. Germany [GC], no. 75529/01, § 140, ECHR 2006‑VII).

152. The Court accepts that the case against the applicants related to a murder which involved some degree of complexity, including the procurement of evidence from abroad.

153. The Court does not find that the applicants were responsible for the length of the proceedings, particularly having regard to the successful outcome of their appeals.

154. The main problem in the instant case, which the Court has examined in a previous case against the respondent State, consisted of the frequent remittals of the case from higher courts to lowers courts (see Marini v. Albania, no. 3738/02, §§ 141-146, ECHR 2007‑XIV (extracts)). The Court notes, in particular, that after the case was heard by the Supreme Court on 15 January 2003 it was remitted to the District Court for fresh examination. In the new proceedings the trial court did not comply with the instructions of the Supreme Court and that failure resulted in another set of proceedings, which lasted approximately two years until the adoption of the Court of Appeal’s decision of 15 October 2004 upholding the applicants’ convictions. The Court considers that this delay was entirely attributable to the domestic courts.

155. There has accordingly been a breach of Article 6 § 1 of the Convention.

C. As regards the alleged breach of the presumption of innocence

156. Both applicants complained that the media campaign against them breached their right to be presumed innocent.

157. The Court observes that there is general recognition of the fact that the courts cannot operate in a vacuum. Whilst the courts are the forum for the determination of a person’s guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large (see Craxi v. Italy, no. 34896/97, § 99, 5 December 2012; and, Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000). Not only do the media have the task of imparting information and ideas concerning matters that come before the courts just as in other areas of public interest; the public also has a right to receive them (see, amongst others, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30; and Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V). Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public (see Pullicino, cited above). Article 6 § 2 cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see, amongst others, Peša v. Croatia, no. 40523/08, § 139, 8 April 2010).

158. In the present case, the Court considers that the press articles did not contain any statement by public officials that prejudiced the applicants’ presumption of innocence. They merely provided a chronological narration of the applicants’ trial and appeal, mostly followed by quotations and interviews, notably with the second applicant’s lawyer. The applicants have not made out a case that a media campaign was waged against them of such virulence as to sway or was likely to sway the outcome of the proceedings. They have not adduced any concrete proof of such, including proof that the authorities had in any manner leaked information to the press or encouraged prejudicial reporting in the media (see Beggs v. the United Kingdom (dec.), no. 15499/10, 16 October 2012).

159. In these circumstances, the Court finds that this complaint is manifestly ill-founded and should be dismissed in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

160. The second applicant complained that there had been a breach of Article 7 § 1 of the Convention in that the domestic courts had retroactively sentenced him on the basis of Article 78 § 2 of the CC, which was introduced after the commission of the alleged offences.

Article 7 of the Convention reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

161. The Government submitted that the second applicant did not raise this complaint either before the Supreme Court or the Constitutional Court.

162. The Court finds that the second applicant did indeed fail to raise this complaint before the Constitutional Court. Even if the Constitutional Court were not to be considered an effective remedy for the purpose of Article 7 of the Convention, the Supreme Court’s decision of 16 September 2005 was given more than six months from the date of the introduction of this complaint with the Court on 13 July 2007.

163. It follows that this complaint must be declared inadmissible and rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

164. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

165. The applicants left it to the Court’s discretion to determine the amount of non-pecuniary damage to which they were entitled, having regard to its case-law in like cases.

166. The Government stated that a finding of a violation would constitute sufficient just satisfaction for the applicants. In any event, they had not substantiated their claims for damages. Should the Court decide to make an award, the Government requested that the just satisfaction should take account of the facts of the case, its complexity and the applicants’ behaviour.

167. The Court recalls that, in respect of the first applicant, it found a substantive and procedural breach of Article 3 of the Convention and a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. The Court also found a breach of Article 6 § 1 of the Convention in respect of the second applicant on account of the admission in evidence of the first applicant’s incriminating statements obtained by torture. It further found a breach of Article 6 § 1 of the Convention as regards both applicants’ right to a trial within a reasonable time. In the circumstances of the present case, the Court awards the first applicant 15,600 euros (“EUR”) in respect of non-pecuniary damage and it considers that the finding of violations constitutes sufficient just satisfaction in respect of the second applicant.

168. However, as regards redress for a violation of Article 6 of the Convention in respect of both applicants, the Court reiterates that the most appropriate form of redress would be to ensure that both applicants are put as far as possible in the position in which they would have been had this provision been respected. The most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings if requested (see Caka v. Albania, no. 44023/02, § 122, 8 December 2009; Laska and Lika v. Albania, nos. 12315/04 and 17605/04, §§ 74-76, 20 April 2010; Berhani v. Albania, no. 847/05, § 91, 27 May 2010; and, Shkalla v. Albania, no. 26866/05, §§ 77-79, 10 May 2011).

B. Costs and expenses

169. The applicants submitted that they did not have any receipts to present to the Court. According to a verbal agreement they had with their lawyer, the award of costs and expenses was contingent on the outcome of the case before the Court.

170. The Government contested the applicants’ claims for costs and expenses as they were not substantiated. It requested the Court to dismiss them.

171. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the lack of receipts and supporting documents, no award is made under this head.

C. Default interest

172. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to join the applications;

2. Joins to the merits the Government’s preliminary objections as regards the first applicant’s complaint under Article 3 of the Convention;

3. Declares admissible the first applicant’s complaints under Article 3 and Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention, the second applicant’s complaint under Article 6 § 1 of the Convention as regards the unfairness of the proceedings as well as both applicants’ complaint as regards the length of the proceedings and the remainder of both applicants’ complaints inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of the first applicant and, consequently, dismisses the Government’s preliminary objections;

5. Holds that there has been a breach of Article 6 § 1 of the Convention in respect of the first applicant as regards the admission and use of statements obtained in breach of Article 3;

6. Holds that there has been a breach of Article 6 § 3 (c) in respect of the first applicant as regards the denial of access to a lawyer in police custody;

7. Holds that there has been a breach of Article 6 § 1 of the Convention in respect of the second applicant as regards the admission and use of statements obtained from the first applicant in breach of Article 3;

8. Holds that there has been a breach of Article 6 § 1 of the Convention as regards both applicants’ right to a trial within a reasonable time;

9. Holds

(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,600 (fifteen thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10. Holds that the finding of violations constitutes sufficient just satisfaction in respect of the second applicant;

11. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 25 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosDavid Thór Björgvinsson
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Bianku is annexed to this judgment.

D.T.B.
F.E.P.

CONCURRING OPINION OF JUDGE BIANKU

I agree with the conclusions of the Chamber that there has been a violation of Article 3, in both its substantive and procedural aspects, as regards the first applicant and a violation of Article 6 § 1 of the Convention as regards the first and second applicants (points 4, 5 and 7 of the operative provisions of the judgment). However, with regret, I am unable to agree with the reasoning of my learned colleagues on two related issues in this case.

A. Whether torture was used against the first applicant?

The first applicant, Mr Kaçiu, was arrested on 18 April 2000. He alleged that one day later, on 19 April 2000, he was questioned by a prosecutor and made statements incriminating the second applicant because of the force used against him by police officers that same day. On 20 April 2000 he was allegedly carried by police officers into the court room. The allegation that force had been used against him is confirmed by the record of the hearing of the same date (paragraphs 11-14 of the judgment). Regrettably, to say the least, it does not seem that these allegations were examined by the Albanian authorities, despite the plea of the first applicant’s court-appointed lawyer. In view of these elements, there is no doubt that there has been a procedural violation of Article 3 of the Convention in respect of the first applicant and I agree with the conclusions of the Chamber in this connection.

Has there been a substantive violation of Article 3 as well? The Government did not react to the allegations of the applicant and of his lawyer about the use of force by police officers on 19 April 2000, nor did they give any explanation whatsoever for the marks on the first applicant’s body and his state of health in the court room on 20 April 2000.

In determining whether a particular form of treatment reaches the general threshold of Article 3, the Court has adopted the standard of proof “beyond reasonable doubt” adding that “such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact” (see Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25). Ever since that judgment, the Court has repeatedly confirmed that “in order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim”. The Court has added that “further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it ..., as well as its context, such as an atmosphere of heightened tension and emotions” (see Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010). All of these principles, together with the purposive element characterising torture, have been clearly underlined in paragraphs 87-93 of the Chamber judgment in the instant case.

For me, the problem lies in the way the Chamber applied these general principles in the concrete case. First of all, the judgment accepts “the lack of any description of the injuries sustained” by the first applicant (paragraph 95 of the judgment). Further on in the same paragraph it is suggested that the first applicant’s allegations “created a presumption of fact that the applicant had been subjected to ill-treatment proscribed by Article 3 at the hands of State agents”. Given that these allegations were not investigated by the authorities, the Chamber rightly finds a violation of the procedural limb of Article 3. The fact that no medical or other evidence was provided led to the conclusion that these allegations remained a mere “presumption of fact”. Subsequently, one finds in the judgment the expressions “inferences can be drawn” that the treatment was intentional (paragraph 98 of the judgment), or “most likely” for assessing the length of the ill-treatment, its nature and even the purposive element. I am not convinced that this analysis is compatible with the “proof beyond reasonable doubt” requirement. In a situation where the first applicant has not specifically complained of torture, and such has not been established at national level or from any other source (paragraph 91 of the judgment), for our Court to jump in and to conclude that the applicant had been tortured produces, to my mind, an extremely far-reaching and unsafe conclusion. The standard of proof, namely “beyond reasonable doubt”, and the related evidentiary considerations set out above, must, in my opinion, be very carefully applied when it comes to allegations of torture – the gravest form of treatment proscribed by Article 3 – and therefore cannot be established by presumption, inference nor likeliness (compare with Selmouni v. France [GC], no. 25803/94, §§ 91-106, ECHR 1999‑V; Gäfgen, cited above, § 94; Dedovskiy and Others v. Russia, no. 7178/03, §§ 39-50, 59-61 and 80-86, ECHR 2008 (extracts); Savitskyy v. Ukraine, no. 38773/05, §§ 15-18 and 129-139, 26 July 2012; Virabyan v. Armenia, no. 40094/05, §§ 17-29 and 31, 2 October 2012; and, Lenev v. Bulgaria, no. 41452/07, §§ 111-18, 4 December 2012).

I also wonder whether the judgment in this case sends the wrong message, namely that simple allegations of ill-treatment by applicants, as long as they have not been investigated at national level - with the result that there is a violation of the procedural limb of Article 3 - automatically lead to a substantive violation of Article 3 on account of torture?! My reading of the case-law of this Court is that, in such cases, the failure of the authorities to provide a plausible explanation for injuries sustained by a person under their control leads to a conclusion that there has also been a substantive violation of Article 3 (see, among others, Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241‑A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; and, Selmouni, cited above, § 87). However, in order to ascertain whether torture has been used, the other evidentiary standards and requirements explained above must also be fulfilled. In view of our Court’s case-law and of the factual circumstances of this case, I am unable to conclude that the applicant was tortured, although I fully agree that there has been a substantive violation of Article 3 of the Convention[1] .

B. Whether there has been violation of Article 6 § 1 of the Convention regarding the first and second applicants because of the use of acts contrary to Article 3 against the first applicant?

In view of my first point that torture has not been established in the first applicant’s case, but an unspecified violation of the substantive limb of Article 3, I turn now to my second point: whether there has been a violation of Article 6 § 1 in relation to the first and second applicants because of the use of force, not qualified as torture, against the first applicant.

The question of the use of evidence obtained in circumstances contrary to Article 3 of the Convention has been the subject of several judgments of this Court. Quoting Gäfgen (cited above, §§ 165-66), the Chamber judgment reiterates that “particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. Thus, the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of the probative value of the statements and irrespective of whether their use is decisive in securing the defendant’s conviction” (paragraph 117 of the judgment).

But must the treatment be qualified as torture before a violation of Article 3 can also lead to a violation of Article 6 § 1 of the Convention? Two Grand Chamber judgments have either left open the question whether the use of real evidence obtained by an act classified as inhuman and degrading treatment, but falling short of torture, always rendered a trial unfair (Jalloh v. Germany [GC], no. 54810/00, §§ 106-07, ECHR 2006‑IX) or avoided answering directly the question in general terms, due to the particular circumstances of the case and the lack of a causal link between the prohibited methods of investigation and the applicant’s conviction and sentence (Gäfgen, cited above, § 180). As in the joint dissenting opinion in the Gäfgen judgment of several Judges of that Grand Chamber composition, I would reiterate that “the Court could have answered that question categorically by asserting, in an unequivocal manner, that irrespective of the conduct of an accused, fairness, for the purpose of Article 6, presupposes respect for the rule of law and requires, as a self-evident proposition, the exclusion of any evidence that has been obtained in violation of Article 3. A criminal trial which admits and relies, to any extent, upon evidence obtained as a result of breaching such an absolute provision of the Convention cannot a fortiori be a fair one. The Court’s reluctance to cross that final frontier and to establish a clear or “bright-line” rule in this core area of fundamental human rights is regrettable[2].”

In my opinion, regardless of the qualification of the proscribed treatment in finding a substantive violation of Article 3 of the Convention, a violation of Article 6 § 1 of the Convention should have been found in this case in relation to the first and second applicants. This is more so because, unlike in Gäfgen (cited above, §§ 32 and 147), no subsequent statements were made by the first applicant confirming in court the incriminating statements made by him earlier in custody. On the contrary, the first applicant insisted that these statements had been obtained from him as a result of the use of force (paragraphs 28, 31, 33 and 49 of the present judgment). This is all the more so in a situation where the allegations of the first applicant about being subjected to treatment contrary to Article 3 of the Convention met with the total silence and passivity of the Albanian authorities, notwithstanding their procedural obligations under Article 3 and their awareness of the allegations including at the time of the criminal proceedings against the two applicants. In my opinion, especially in such case where the first applicant made statements incriminating the second applicant, we should have asked ourselves whether, leaving aside the issue of torture, a lesser form of ill-treatment proscribed by Article 3 used against the first applicant in order to obtain those statements may be sufficient for concluding that the fairness of the second applicant’s trial was compromised on account of their use. In my view, the Chamber should have opted for a broader application of the scope of the exclusionary rule in respect of evidence obtained as a result of a breach of Article 3. This would also have led to a clarification of our case-law on the matter[3] and would have strengthened the consistency of its application.

The choice of the majority, seen from the perspective of the facts of the present case, discloses another problem. As already pointed out in the above-mentioned partly dissenting opinion in the Gäfgen judgment, it would be difficult for a Court that has accepted that the absence of a lawyer in the initial stages of an investigation renders the entire trial unfair (Salduz v. Turkey [GC], no. 36391/02, 27 November 2008), to limit the scope of the exclusionary rule only to evidence obtained by torture. Or, to put it differently, not to have the courage to broaden the scope of the exclusionary rule so as to cover all evidence obtained in violation of Article 3. The facts of the present case offered the Court the advantage, or indeed the disadvantage, of having both Salduz and Gäfgen elements. While the Chamber in paragraph 120 of the judgment accepts that the absence of a lawyer in the initial stages of the proceedings against the first applicant rendered the entire trial unfair, according to the Salduz principle, it seems to require the impugned acts to be qualified as torture in order to conclude that there has been a violation of the fair trial guarantee. Does this mean that the Salduz principle is more stringent that the Jalloh or Gäfgen one? This would be difficult, if not impossible, to assert considering the nature of the Articles in play, Article 6 guaranteeing non-absolute rights on the one hand and, on the other hand, Article 3 and its absolute character.

For the above reasons, I believe that the Chamber should have found a violation of Article 6 § 1 of the Convention without having to reach, as a preliminary matter, a conclusion that the first applicant had been subjected to torture, which I consider to be an unsafe conclusion on the facts of the case. The fact that the first applicant was ill-treated contrary to Article 3 would have been of itself sufficient to ground a breach of Article 6 in respect of both applicants. This solution would not have changed anything for the applicants, but it would have produced a result which would have been clearer and more consistent with our case-law under Articles 3 and 6.

[1]1. The Court has consistently found general violations of the substantive limb of Article 3 in several cases without specifying the form of ill-treatment suffered (see, among others, Taraburca v. Moldova, no. 18919/10, §§ 48-53, 6 December 2011; and Yusuf Gezer v. Turkey, no. 21790/04, §§ 31-33, 1 December 2009).

[2]2. See paragraph 2 of the Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power in the Gäfgen judgment. See also paragraph 3.2 of the Dissenting Opinion of Judge Cabral Barreto in the Grand Chamber judgment in the case of Bykov v. Russia [GC], no. 4378/02, 10 March 2009).

[3]3. For judgment accepting the exclusionary rule in cases where the violation of Article 3 ha not been qualified as torture, see Hulki Güneş v. Turkey, no. 28490/95, ECHR 2003‑VII (extracts); Söylemez v. Turkey, no. 46661/99, 21 September 2006; and, Göçmen v. Turkey, no. 72000/01, 17 October 2006.

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