Communicated on 15 June 2015
FOURTH SECTION
Application no. 52131/09
Sokol MUJAJ
against Albania
lodged on 15 September 2009
STATEMENT OF FACTS
The applicant, Mr Sokol Mujaj, is an Albanian national, who was born in 1969 and is currently serving a prison sentence. He is represented before the Court by Mr V. Meçi, 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.
1. Criminal proceedings
On 31 August 2004 the Shkodra prosecutor’s office authorised the simulated purchase of an explosive device remotely controlled by a cellular phone (blerje e simuluar të një mine të komanduar me celular) to be carried out. It would appear that secret audio and video recording of the transaction was also authorised. Co-accused H was targeted by this simulated purchase.
On 8 September 2004 the sale took place between co-accused H and an undercover agent. During the transaction, which was recorded and intercepted by the police, H informed the undercover agent that he could further secure the sale of three missiles (raketa).
On 6 November 2014 the undercover agent purchased a rocket launcher from H. An authorisation was issued by the prosecutor for this simulated purchase.
On 19 November 2004 the case was registered with the Tirana prosecutor’s office attached to the Tirana Serious Crimes Court (“the District Court”), since it had jurisdiction to investigate and prosecute an alleged offence under Article 278/a of the Criminal Code (“CC”).
From 8 to 13 December 2004 H and the applicant’s telephone numbers were intercepted by the police.
On 13 December 2004, H, the applicant and another co-accused were arrested by the police on account of having committed the offence of trafficking of weapons. Three surface-to-air missiles (raketa tokë-ajër) were seized in the third co-accused’s car, which was used as a means of transportation. The applicant was driving alone at the moment of the arrest and no missiles were found in his vehicle.
On an unspecified date the applicant and the other two co-accused were committed for trial to the Tirana Serious Crimes District Court (“the District Court”). During the trial, the applicant challenged the evidence that had been obtained as a result of the simulated purchase on the ground that the undercover agent’s actions had been provocative. He further challenged the validity and lawfulness of the record in relation to the telephone interception (procesverbalet e përgjimit).
On 5 October 2006 the District Court gave its decision. It found that the prosecutor’s authorisations of 31 August 2004 were lawful as were telephone interception activities. It did not find any provocative activities on the part of the undercover agent. The District Court further found the applicant guilty of importing missiles from Montenegro under Article 278/a § 2 of the Criminal Code in collusion with the other two co-accused. It relied on a number of indications (indicje), notably the applicant’s frequent travels to Montenegro, the interception of telephone calls and text messages, the applicant’s frequent telephone calls with H, the applicant’s frequent telephone calls with a Montenegrin national against whom similar proceedings had been instituted in Montenegro, the mention of the applicant’s name in a telephone conversation between H and the undercover agent and the absence of any surface-to-air missiles in the country’s arms’ depots. The applicant was sentenced to 14 years’ imprisonment.
In his appeal to the Tirana Serious Crimes Court of Appeal (“Court of Appeal”) the applicant denied having committed a criminal offence, stating that his conviction was based on indications instead of real evidence. He challenged the accuracy and reliability of the indications arguing that his frequent travels to Montenegro were not limited only to the month of December 2004. He had done so throughout 2004 and the frequent travels could not serve to link him to the alleged trafficking of weapons. No transcription of telephone conversations or text messages was provided to the applicant. Telephone metering information was provided electronically to the prosecutor’s office. This was open to abuse, because the data could have been tampered with and manipulated by the authorities. In any event, their inaccuracy could not point to the applicant’s involvement in the commission of the alleged crime. The Montenegrin authorities had denied the existence of surface-to-air missiles in their arms’ depots by way of a formal letter. It could not be proved that the missiles had entered Albania from Montenegro. Also, the applicant maintained that the undercover agent’s actions were provocative and that the prosecutor’s authorisation did not contain a list of actions that the undercover agent was allowed to carry out. He challenged the reliability of the undercover agent who had not been summoned to testify at the trial. In addition, he argued that there were no reasons to discharge the remaining police officers, who had prepared the records of interception of telephone conversations and text messages, from testifying at the trial. Also, he challenged the lawfulness of the record of the telephone interceptions and the fact that he was initially arrested in the absence of a reasonable suspicion. He argued that the missiles could not be classified as combat weapons (armë luftarake), since their launcher (doreza e lëshimit) was missing, as a result of which they could not be fired. Finally, the applicant complained about a breach of the equality of arms given that the trial court had rejected his requests to admit some evidence.
On 15 December 2006 the Court of Appeal upheld the decision and reduced the applicant’s sentence to 12 years’ imprisonment. It declared the applicant guilty on the basis of the same reasons given by the District Court. It found that the prosecutor’s authorisations of 31 August and 6 November 2014 were issued pursuant to Article 294/a of the Code of Criminal Procedure (“CCP”) by the Shkodra prosecutor’s office, which had territorial jurisdiction to institute the proceedings on account of H’s place of residence. No other criminal proceedings had been instituted against H by another prosecutor’s office. There was no need to have an authorisation given on 13 December 2006 since no simulated purchase occurred. According to the court, the undercover agent had contacted H seeking to purchase explosive devices. Under no circumstances had the undercover agent incited H to commit the crime; nor had he acted in breach of the prosecutor’s authorisations. The court stated that the applicant’s initial arrest had been validated by the domestic courts and it was not the subject of examination of the merits of the case. As regards the interception of telephone conversations, it was carried out in accordance with Article 223 of the CCP. The court, relying on an experts’ report, confirmed that the missiles were to be considered combat weapons within the meaning of the law. The defence’s requests for the administration of evidence were rejected by the trial court, because the evidence was considered to be irrelevant.
In his appeal to the Supreme Court the applicant relied on the same grounds of appeal as those raised before the Court of Appeal. He argued, inter alia, that he was not guilty of the alleged offences and that the lower courts’ decisions were based on assumptions instead of real evidence. He challenged the validity of decisions authorising the simulated purchase and the admissibility of evidence, notably the records concerning the simulated purchase and the intercepted telephone conversations. In his view, the undercover agent had not been faced with an existing offer. In the absence of a criminal investigation, he had initiated and incited the simulated purchase. There had been no transcription of conversations intercepted by the police between the applicant and H. The court had erroneously classified the missiles as combat weapons, because they could not be fired.
On 23 May 2007 the Supreme Court, by majority of four votes to one, quashed the Court of Appeal’s decision. It found that the experts’ report was not conclusive as to whether the missiles were capable of being fired in the absence of the launcher. This was one of the two conditions required for an object to be classified as a combat weapon. It dismissed the remainder of the complaints as manifestly ill-founded, no detailed reasons having been given, but reference having been made to the reasons advanced by the Court of Appeal. The dissenting judge, G. D., argued that the lower courts had failed to establish any direct evidence of collusion between the applicant and H. He also opined that there were no important, precise and concordant indications as required by Article 152 § 2 of the CCP.
2. Rehearing proceedings
On 22 November 2007, in rehearing proceedings, the Court of Appeal, relying on an experts’ report and their testimony before it, found that the missiles were to be considered combat weapons within the meaning of Article 278/a of the CC, but could not be deployed for firing in the absence of the launcher. As a result, it convicted the applicant of attempted trafficking of weapons and sentenced him to 10 years’ imprisonment. The court did not examine the applicant’s remaining complaints since they had already been rejected by the Supreme Court on 23 May 2007.
The applicant appealed arguing that the missiles could not be considered combat weapons within the meaning of Article 278/a of the CC.
On 26 September 2008 the Supreme Court, by majority of four votes to one, quashed the Court of Appeal’s decision. It held that the applicant had committed the offence as charged and upheld the District Court’s decision of 5 October 2006. Even though the launcher was missing, the Supreme Court stated that the missiles could technically be engaged (gjendja teknike e rraketave është e rregullt). The experts’ report had not concluded that they were not capable of firing. Consequently, the missiles were to be classified as combat weapons destined for military use (armë luftarake të destinuara për përdorim ushtarak). As a result, the applicant was sentenced to 14 years’ imprisonment. Of the five judges who composed the bench, four had already been members of the panel which gave the decision of 23 May 2007. The dissenting judge, G.D., argued that, in the absence of the launcher, the missiles could not be classified as combat weapons within the meaning of Article 278/a of the CC. As a result, it could not be said that the facts attributed to the applicant concerned the commission of a criminal offence. In addition, there was no evidence or reasonable doubt inculpating the applicant.
On an unspecified date the applicant lodged a constitutional appeal complaining, inter alia, that: there was a breach of the equality of arms, because no transcribed records of conversations or video recording were made available to the defence, key witnesses (the undercover agent and the police officers recording the simulated purchase and the intercepted telephone conversations) were not summoned for questioning at the trial, his conviction was based on indirect evidence and the Supreme Court’s bench of 26 September 2008 was not impartial.
On 3 April 2009 the Constitutional Court, sitting as a full court, declared the appeal inadmissible as unsubstantiated.
B. Relevant domestic law and practice
1. Criminal Code
Under Article 278/a § 2, importation, exportation, transiting or trading, in breach of the law, of combat weapons and ammunition, in order to obtain material gain or any other profit, when committed in collusion with others, is liable to between ten and twenty years’ imprisonment.
2. Code of Criminal procedure
Article 152 § 2 states that the existence of a fact cannot be drawn from indications, unless they are important, accurate and concordant.
Article 221 allows for the surveillance of communications of, inter alia, a suspect or of a telephone number in relation to offences carrying at least a penalty of seven years’ imprisonment. In accordance with Article 222 § 1, surveillance in public places as well as interception of incoming and outgoing telephone calls are authorised by the prosecutor. It is not clear whether there is a requirement to further obtain a court order in this regard. Under Article 222 § 3 the authorisation should contain the duration and the manner of carrying out the surveillance. Article 223 § 2 provides that intercepted communications is recorded and minutes are drawn up in relation to the actions carried out. The minutes also contain the content of the intercepted communications.
Article 294/a § 1 provides that a police officer or a person authorised by them may carry out a simulated purchase. Under Article 294/a § 2 the actions are authorised by the prosecutor’s office which has jurisdiction over the territory in which the actions take place. Article 294/a § 3 prohibits incitement of a crime by a police officer. The outcome of such incitement cannot be used as evidence in the trial.
3. Supreme Court’s unifying decision no. 1 of 3 February 2006
In its unifying decision no. 1 of 3 February 2006 the Supreme Court Joint Benches stated that the term “weapon” had been defined in section 1 of the Weapons Act (law no. 7566 of 25 May 1992). According to the Supreme Court, for an object to be considered a weapon, it should be technically capable of its destined use (teknikisht te rregullta per destinacionin e tyre). The technical capability of a weapon should be determined by an experts’ report.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 of the Convention about the unfairness of the proceedings. In particular he alleges that: (i) the undercover agent and other police officers were not examined at the trial; (ii) there was a breach of the equality of arms because he was not provided with a copy of the records intercepting the telephone conversations and text messages; (iii) the domestic courts’ decision were not adequately reasons as regards his conviction, since they were based on indications instead of real evidence; and (iv) the Supreme Court’s bench of 26 September 2008 lacked impartiality.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular:
(a) Was the defence offered an adequate opportunity to hear and
cross-examine the undercover agent and other police officers (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238; Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003-VI; Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004-IV; and Kuzmickaja v. Lithuania (dec.), no. 27968/03, 10 June 2008)?
(b) Was the defence offered an adequate opportunity to defend himself in accordance with the principles of adversarial proceedings and of equality of arms, given the alleged hindrance in obtaining the integral copy of the records of telephone conversations and text messages as intercepted by the authorities (see, for example, Matyjek v. Poland, no. 38184/03, 24 April 2007, and Kuopila v. Finland, no. 27752/95, 27 April 2000?
2. Having regard to the composition of the Supreme Court’s bench of 23 May 2007, was the Supreme Court’s bench of 26 September 2008 impartial, as required by Article 6 § 1 of the Convention?
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