Communicated on 19 February 2014
FOURTH SECTION
Application no. 27187/08
Fatmir CUPI
against Albania
lodged on 6 June 2008
STATEMENT OF FACTS
The applicant, Mr Fatmir Cupi, is an Albanian national, who was born in 1986 and is serving a prison sentence in Lezhë, Albania. He is represented before the Court by Mr S. Zeqiri, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 June 2004 a policeman and his minor child were shot dead in a police car. Two other people were wounded.
A. Criminal investigation
On 10 June 2004 a criminal investigation was opened into the event. On 15 June 2004 the criminal investigation file was transferred to the serious crimes prosecutor’s office.
On the same day the testimony of two minors, F. and G., who had information about the crime, was filmed at the police station. The minutes of 10 June 2004 stated that M., an adult and relative of the minors, as well as P. and Pa., two police officers, were present during filming.
On an unspecified date in June 2004 the applicant surrendered to the police and was remanded in detention.
1. The applicant’s statement of 27 June 2004
On 27 June 2004 the applicant made statements as a person under investigation in the absence of his lawyer. As regards his right to give explanations and be defended by a lawyer, the minutes read, in so far as the applicant’s response is concerned, as follows:
“I do not have a lawyer ... later, I will speak to my father to see whether he could secure me one. I agree to give explanations.”
The applicant stated that, having stolen money from his father, he had fled his family home three to four days before the murder of the policeman. One day, he was standing with a cousin at the town’s school yard, when the murdered policeman approached. His cousin took out a grenade and threatened the policeman. The applicant and his cousin then returned to the cousin’s home, where they took machine guns, grenades, bullets and a pistol. The two of them went to live in some uninhabited houses out of fear of being caught by the police. They were joined by a friend.
On the day of the murder, having been told that the policeman was on the streets of the town and that the police car was by the town’s school, his cousin took the machine gun, the pistol and the grenades and left home without saying a word. The cousin killed the policeman with the machine gun while he was in a police car with three other people; he had returned home within an hour. The cousin, the applicant and their friend immediately left for the mountains. After wandering for some days in search of food and shelter, the applicant and his cousin surrendered to the authorities, their friend having done so previously.
2. The minors’ statements of 14 July 2004
On 14 July 2004 minor F. made a statement before the prosecutor in the presence of his teacher G.K. Minor F. was a relative of the perpetrator of the crime. He stated that on 5 June 2004 the perpetrator, the applicant and a third person visited his home and stayed overnight. They carried two Kalashnikovs, grenades and a pistol. As F. shared the bedroom with the three guests, he heard them talking about committing a murder, in which two people, “the old” and “the young”, would be killed.
On 14 July minor G. made a statement before the prosecutor in the presence of his father N. He stated that on 6 June 2004 he had visited his uncle’s home, where he had found the perpetrator, the applicant and a third person. They had been put up at his uncle’s the day before. When he went upstairs he saw two machine guns, grenades, a pistol and two black bags. The three guests joined him upstairs to take a nap. The perpetrator started talking about “taking” the area policeman, whom G. knew to be the father of one of his classmates with whom he shared the classroom bench. The applicant nodded in approval at the perpetrator’s words and he said they were with him in all his actions. In response to the perpetrator’s question, G. had responded that the policeman’s son had left the town since the school year had finished.
On an unspecified date in autumn 2004 the prosecutor lodged a bill of indictment with the Serious Crimes District Court (“the District Court”).
B. Judicial proceedings
On an unspecified date in 2004 the trial started before the District Court. On 7 October 2005 the District Court gave decision. According to the decision, a number of witnesses, including minors F. and G., testified. Other items of evidence were also examined by the trial court, including the applicant’s statement of 27 June 2004. Relying on, inter alia, the applicant’s statement of 27 June 2004 and the minors’ statements of 14 July 2004, the applicant was found guilty, in collusion with others, for having aided and abetted the murder of the policeman and of a minor, the policeman’s child, under Article 79 (a) and (c), Article 25 and Article 278 of the Criminal Code. Even though the applicant did not physically participate in the commission of the crime, his help, by way of being present, of accompanying, supporting and of giving advice to the perpetrator, boosted the perpetrator’s courage and confidence to commit the offence. The applicant’s active participation in a conversation with the perpetrator demonstrated that the applicant had entered into a clear agreement to physically eliminate the policeman and his child. The applicant was sentenced to 25 years’ imprisonment.
On 14 October 2005 the applicant appealed against the District Court’s judgment, contesting essentially the trial court’s assessment of the evidence.
On 29 December 2005 the Serious Crimes Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. It, however, reduced the sentence to 22 years’ imprisonment. It reasoned that, in so far as the applicant’s lawyer had signed the document that informed him of the content of the criminal investigation file, the applicant was considered to have been informed of all the documents found therein. The applicant had consented to being questioned in the absence of a lawyer and his statement was admitted to the case file and was examined in the light of the remainder of the evidence. The statements of minors G. and F. were taken in the presence of their father and teacher, respectively, in accordance with the domestic provisions. The Court of Appeal rejected the applicant’s allegation that the minors were subjected to ill-treatment on the ground that neither the minors nor the persons present at the questioning had raised any such complaint before the authorities. Relying on the trial courts’ minutes, the appeal court also rejected the applicant’s complaint that witnesses had not been summoned on his behalf: had that been the case, the applicant could have sought the reopening of the judicial examination before the Court of Appeal as well as the summoning of those witnesses, but he failed to do so.
On 26 January 2006 the applicant lodged an appeal with the Supreme Court. He alleged that the prosecutor had not disclosed all documents on the investigation file. He had only been informed of the existence of some testimonies at the trial. His statement of 27 June 2004 had been taken in the absence of a lawyer in breach of domestic provisions. His request to call some witnesses had not been accepted by the trial court and had breached the principle of equality of arms. The two minors’ statements had been taken under violence, in the absence of a lawyer, and minor F., as his father attested at the trial, had been subjected to ill-treatment. A number of witnesses had testified without first checking their identities.
On 15 November 2006 the Supreme Court upheld the Court of Appeal’s decision. However, it reduced the applicant’s sentence to 20 years’ imprisonment.
On an unspecified date the applicant lodged a constitutional complaint raising the same grounds of appeal as those raised before the lower courts.
On 18 December 2007 the Constitutional Court, sitting as a full bench, rejected the applicant’s constitutional complaint. The applicant’s lawyer had been notified of all the documents found in the criminal investigation file and he had never complained before the trial court that the authorities had withheld any documents. The applicant had consented to giving explanations in the absence of his lawyer about the circumstances surrounding the commission of the crime. Neither minor had raised any complaints that they had been subjected to ill-treatment in the hands of police officers on 14 July 2004 and their statements had been obtained in accordance with domestic provisions. As to the domestic courts’ refusal to summon witnesses requested by the applicant, the lower courts had examined two witnesses called for by the applicant and they were not obliged to summon every witness requested, but rather to assess the request on the basis of the case file.
B. Relevant domestic law
1. Criminal Code
Article 79 provides for the criminal offence of the intentional murder on account of the victim’s particular position. The offence is liable to punishment of between twenty years and life imprisonment.
Article 278 provides for the criminal offence of the unlawful possession of firearms.
2. Code of Criminal Procedure
Article 296 § 1 renders mandatory the presence of a lawyer during the questioning of a person under investigation. When a lawyer has not been found or shown up, the provision provides for the appointment of an ex officio lawyer by the prosecutor.
Article 361 § 5 stipulates that the questioning of a minor should be conducted by the president of the bench. He may be assisted by a minor’s relative or an education specialist.
COMPLAINT
The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he was convicted on account of his and two minors’ statements made in the absence of a lawyer.
QUESTIONS TO THE PARTIES
Has there been a breach of the applicant’s rights under Article 6 §§ 1 and 3 of the Convention on account of the applicant’s questioning without a lawyer and on account of the admission against him of the minors’ statements made to the police? In particular:
(a) Was the lack of legal assistance during the applicant’s questioning in police custody in breach of his Convention rights (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008)?
(b) What procedural guarantees does the Albanian legislation provide for the questioning of minors during the criminal investigation? How were such guarantees observed in the present case? The Government are requested to provide all relevant statutory provisions.
(c) Did the minors give evidence at the trial? Did the applicant challenge the minors’ testimony and question them at the trial? The parties are requested to provide copies of the relevant hearings’ records.
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