Communicated on 19 February 2014
FOURTH SECTION
Application no. 37814/10
Mariglen MUCAJ against Albania
lodged on 28 June 2010
STATEMENT OF FACTS
The applicant, Mr Mariglen Muçaj, is an Albanian national, who was born in 1978 and is currently in detention in Albania. At the relevant time he was a police officer. He is represented before the Court by Mr A. Lamaj, a lawyer practising in Tirana.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The murder of four police officers
On 7 August 2009 four police officers were killed in an exchange of fire with D. and E. D. was a wanted person who had absconded during criminal proceedings against him in 2003. E. was D.’s brother in law.
D. and E. were arrested on the same day and criminal proceedings were opened against them. D. was charged under, inter alia, Article 79/c of the Criminal Code (“CC”) with murder of police officers, an offence which fell within the jurisdiction of the serious crimes courts. It would appear that E. was charged under Article 302 § 2 of the CC with the provision of assistance to the perpetrator of a crime. E. is being tried in the same proceedings as D.
A mobile telephone which belonged to E. was confiscated at the crime, which showed that E. had made frequent telephone calls with, amongst others, the applicant.
Criminal proceedings were then opened against the applicant and were joined to D.’s prosecution.
B. The applicant’s detention
On an unspecified date in 2009 the prosecutor requested the Serious Crimes Court of First Instance (“Court of First Instance”) to order the applicant’s arrest.
On 22 November 2009 the Court of First Instance, in in absentia proceedings, ordered the applicant’s arrest. The court’s decision stated, in so far as relevant, the following:
“Following the examination of the mobile telephone’s metering information, it can be concluded that the accused, E., had contacts with a number of police officers. For this reason, the investigation was focused on verifying the ties and relations between E. and these police officers.
Upon questioning the police officers who had telephone contacts with the accused E., it emerged that police officer Mariglen Muçaj had close social ties with E. The information obtained through questioning other police officers shows that the police officer Mariglen Muçaj had managed to secure E. a police uniform which had been used by E. and D., his brother-in-law, to produce police identification documents. From the investigation, it appears that D. had taken photographs in the police uniform that the applicant had secured for E. The police uniform had been taken from the Korça police directorate, where the applicant used to serve as a police officer. It has further been proved, on the basis of the photographs taken, that the rank on the police uniform which D. had worn matched the applicant’s rank. On the identification document that had been produced by D., his alleged position in the police forces matched the applicant’s.
On the basis of the above information, the prosecutor has reached the conclusion that the police officer Mariglen Muco, by his actions, in breach of the law and contrary to the conduct of his duties, has facilitated E. and, notably, a very wanted person, D., avoiding the arrest through the creation of circumstances to conceal his identity and legal position...”
The court ordered the applicant’s arrest on the ground that there existed reasonable suspicion that he had committed the criminal offence of abuse of office under Article 248 of the CC. This decision was based on a number of items, such as, inter alia, the metering information from E.’s mobile telephone provided by the telephone service provider, the police identification document produced in the name of D., the confiscation and examination reports of the police uniform and the statements of seven persons made in the course of the investigation.
On 23 November 2009 the applicant was arrested.
On 26 November 2009 the applicant was heard by the Court of First Instance in accordance with Article 248 of the Code of Criminal Procedure (“CCP”). The court confirmed his arrest.
The applicant’s lawyer appealed. He requested the imposition of another lighter security measure (masa e sigurisë) and the hearing of his case by the ordinary criminal court.
On 14 December 2009 the Serious Crimes Court of Appeal (“Court of Appeal”), in proceedings in which the applicant was represented by a lawyer of his choosing, upheld the decision. It noted that the prosecutor had considered the three accused to have acted in collusion and had decided to join the proceedings in accordance with Article 79 of the CCP. All procedural actions by the prosecutor had been conducted in the course of the criminal proceedings against D. Since D. was charged with one of the offences provided for in Article 75/a of the CCP for which the serious crimes court was competent, the applicant’s case also fell within the competence of the serious crimes courts in accordance with Article 80 of the CCP. The Court of Appeal further held that, on the basis of evidence, there existed a reasonable suspicion that the applicant had committed the criminal offence of abuse of office under Article 248 of the CC. This had also been confirmed in the hearing on the verification of the circumstances for the imposition of the security measure on 26 November 2009. Moreover, on the basis of the applicant’s statements, even though he had taken knowledge of E.’s and D.’s criminal acts, he had continued to work on the case. The security measure imposed was also justified by the penalty laid down in Article 248 of the CC and the special circumstances of the case. There existed no impediments to order the applicant’s arrest under Article 230 § 2 of the CCP and his arrest was in accordance with the charge against him.
The applicant appealed. He argued that he was not heard by a competent tribunal and that his arrest was not based on a reasonable suspicion but on assumptions. He conceded that he knew E. and nothing barred a police officer from establishing normal social relations with ordinary citizens who did not have any criminal record. He stated that, because of his position, he was not required to wear a police uniform. His police uniform had been taken to E.’s mother for repair and was collected by another police officer. Furthermore, there were other shops in the city which sold police uniforms and every person could buy one. The body of evidence did not sustain the view that there existed a reasonable suspicion against him. There was no risk of the applicant’s flight following the commission of the offence, because he had still been working on the case. Moreover, the applicant’s character and performance at work did not warrant the imposition of such security measure.
On 11 January 2010 the Supreme Court rejected the appeal as its grounds fell outside the scope of Article 432 of the CCP.
The applicant lodged a constitutional appeal.
On 17 June 2010 the Constitutional Court dismissed the appeal. It held that the applicant’s complaint under Article 5 did not fall within its constitutional jurisdiction. His complaint that he had not been heard by a tribunal established by law was declared manifestly ill-founded.
C. The applicant’s request for the review of his detention
1. The first application for habeas corpus
On 1 March 2010 the applicant made a habeas corpus application, requesting the court to revoke his arrest and to replace it by a more lenient security measure. He submitted that there existed no reasonable suspicion for him to be kept in custody. He invoked his good character in order to have the security measure revoked or replaced.
On 3 March 2010 the Court of First Instance rejected the request. It reiterated, in response to the applicant’s lawyer’s objection, that the case fell under its jurisdiction in accordance with Articles 75/a and 80 of the CCP as well as the Serious Crimes Courts Act. It found that the reasons which prompted the applicant’s arrest had been examined on 22 November 2009, that the reasons continued to remain valid and that there was no reason under Article 260 §§ 1 and 2 to revoke or replace the security measure. The applicant appealed.
On 31 March and 7 May 2010 the Serious Crimes Court of Appeal and the Supreme Court, respectively, upheld the decision.
2. The second application for habeas corpus
On 24 December 2010, 12 January and 18 February 2011 the Court of First Instance, the Court of Appeal and the Supreme Court, respectively, rejected the applicant’s request to have his arrest revoked and replaced by a more lenient security measure.
3. The third application for habeas corpus
On 20 March 2012 the applicant made a habeas corpus application. On 23 March 2012 the Court of First Instance rejected the request.
On 24 April 2012 the Court of Appeal upheld the decision.
On 5 September 2012 the Supreme Court quashed the Court of Appeal’s decision and remitted the case for fresh examination.
On 12 October 2012 the Court of Appeal upheld the applicant’s detention.
On 8 November 2012 the Supreme Court upheld the latter decision.
4. The fourth application for habeas corpus
On 24 December 2012 the Durrës District Court, following the transfer of the case file, validated the applicant’s arrest. It reasoned that, even though the applicant had been in pre-trial detention for almost three years and one month, his actual pre-trial detention period had lasted only 145 days, 979 days having been deducted from the overall pre-trial period during which time the time-limit had been suspended.
D. The applicant’s request to disjoin the proceedings
On 8 January 2010 the applicant requested the Court of First Instance to disjoin the proceedings against him from those against D. and E. and to transfer the case to the ordinary criminal courts.
On 8 January 2010 the Court of First Instance rejected the request. It reasoned that it was competent to hear the case against the applicant on the ground of, inter alia, Article 80 of the CCP.
The applicant lodged a direct appeal with the Supreme Court under Articles 86 § 2 and 431 of the CCP. He alleged that his case did not fall within the jurisdiction of the serious crimes courts.
On 4 February 2010 the Supreme Court rejected the appeal, reasoning that the applicant was not entitled, under Article 431 of the CCP, to lodge a direct appeal, since there was no disagreement as regards the competence of the Court of First Instance. It further held that the lower court was proceeding in accordance with Article 80 § 1 of the CCP.
E. Criminal proceedings against the applicant
On 24 March 2010 the applicant was given the disciplinary measure of “exclusion from the police forces”.
On 6 December 2012 the Court of First Instance decided to disjoin the proceedings against the applicant and E. from those against D. It declared its lack of competence to continue the examination of those files, which were transferred to the Durrës District Court.
On 17 December 2012 the case file against the applicant was registered with the Durrës District Court.
On 6 February 2013 the Durrës District Court found the applicant guilty as charged. As a result of the application of the summary procedure, he was sentenced to 4 years and 8 months’ imprisonment. Since the time spent in pre-trial detention exceeded his sentence, the court ordered the applicant’s immediate release. The applicant was further banned from holding public office for a period of three years.
The case is pending before the Durrës Court of Appeal.
F. Public officials’ statements and media coverage of the applicant’s arrest
The applicant submitted newspaper articles published between 24 November 2009 and 4 March 2010, which carried the following titles: “The court keeps in prison the police officer, ‘the spy’ of D.”, “Imprisonment for the police officer that aided D.”, “D.’s spy appears before the court”, “The Internal Inspection Service arrest the police officer, D.’s spy”, “The decision about the police officer is upheld; he aided D.”. The articles reported on the applicant’s arrest and the rejection of his habeas corpus application.
On 25 January 2010 the Ministry of Public Order issued a press statement covering the speech of the then Prime Minister in the annual performance analysis of police forces during 2009. The relevant extracts of the press release, drawing from the then Prime Minister’s speech, read as follows:
“[Last] year the fight against corruption witnessed new dimensions. In recent months, there has been an increase of the number of officials facing the law. I commend you for this. There is nothing more vital for Albanian society than the fight against corruption. It is a cancer which serves as the bedrock of all [other] evil. It was corruption which served as the main leverage for the barbaric murder of four police officers in Durrës. It was the police inspector who covered for D., thus becoming an accomplice or even more criminal than [D.]. I gave this example to illustrate how vital the fight against corruption is. (...).”
G. Relevant domestic law
1. Criminal Code (“CC”)
The relevant provision of the CC reads as follows:
Article 248 – Abuse of power
“Deliberate actions or failure to act contrary to the law from the person who exercises public function, which constitute common non-compliance with his duty, which have resulted in unfair pecuniary or non-pecuniary advantage for him or another [third] party or which have damaged the legitimate interests of the State, its nationals or other legal entities, if it does not constitute another criminal offence, shall be liable to punishment of between six months and five years’ imprisonment and to a fine of between 300,000 and 1,000,000 [Albanian] leks.”
2. Code of Criminal Procedure (“CCP”)
Article 75/a states that the serious crimes courts hear cases under, inter alia, Article 79 (c) of the CC.
Under Article 79 § 1 (a) the prosecutor may decide to join the criminal proceedings against some persons who have acted in collusion with each other. Article 80 § 1 stipulates that in the event of joined proceedings which cannot be separated, one of which is in the jurisdiction of the serious crimes courts and the remainder in the jurisdiction or ordinary criminal courts, the serious crimes courts shall be competent to hear the case.
Article 230 § 2 provides that the security measure of arrest cannot be imposed on: a pregnant woman or a breastfeeding mother, a person who is in a particularly grave state of health or who is more than seventy years of age or on a drug or alcohol addict who is undergoing a therapeutic program in a special institution.
In accordance with Article 248, the court hears the accused within three days following his arrest.
Under Article 431 a direct appeal may be lodged with the Supreme Court against a lower court decision concerning the disagreement on jurisdiction and competence. In accordance with Article 89, there is a disagreement when two or more courts concurrently agree or decline to hear a case.
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.
3. Serious Crimes Courts Act (Law no. 9110 of 24 July 2003)
The serious crimes courts were established at the first-instance and appeal levels. They became operational on 1 January 2004. They hear cases concerning the most serious criminal offences as laid down in Article 75/a of the CCP.
Judges to the serious crimes courts are appointed for a renewable nine-year term. Their appointment is subject to the same criteria as for the judges in ordinary criminal courts. In addition to the enjoyment of the same rights and guarantees recognised to judges of ordinary criminal courts, judges of serious crimes courts enjoy additional rights and guarantees as laid down in section 9.
Serious crimes courts hear cases in full compliance with the criminal procedural rules laid down in the CCP and other legislation.
COMPLAINTS
The applicant complained under Article 5 § 1 (c) that his arrest was not based on a reasonable suspicion. Without invoking any Articles, he also complained that his continued detention was not based on a reasonable suspicion. Under Article 6 § 1 he complained that his remand in custody should have been ordered by an ordinary criminal court instead of the serious crimes courts. He finally alleged that there had been a breach of Article 6 § 2 of the Convention on account of newspaper articles and statements made by the then Prime Minister.
QUESTIONS TO THE PARTIES
1. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case on account of newspaper articles and statements made by the then Prime Minister?
Full & Egal Universal Law Academy