Communicated on 15 January 2016
FIRST SECTION
Application no. 20225/11
Arben MURRAJ
against Albania
lodged on 7 February 2011
STATEMENT OF FACTS
The applicant, Mr Arben Murrja, is an Albanian national who was born in 1980 and is currently serving a prison sentence in Lezhë.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 March 2003 a murder took place in a park in Birmingham (the United Kingdom). The victim was in the park with five friends, D., S., R., G. and E.
On an unspecified date several witnesses, including D., S., R. and K. (a woman who had allegedly been with the applicant at the time of the murder), gave statements implicating the applicant in the commission of the murder to the British investigating team.
On 26 May 2005 the Albanian Prosecutor’s Office opened a case against the applicant in respect of murder.
1. The trial proceedings
At trial, the prosecutor changed the criminal charge against the applicant to that of premeditated murder.
On an unspecified date the Tirana District Court – through the Ministry of Justice – sent a rogatory letter to the British Ministry of Justice to summon witnesses D., S., R. and K., as well as She., Shp., Ad., Es. and Eb. Those witnesses lived in the United Kingdom. Their appearance at the trial was not possible owing to their changes of address.
Under Article 369 of the Code of Criminal Procedure, the court allowed the statements of witnesses D., S., R., K., She., Shp., Ad., Es. and Eb. –which had been given to the British investigation authorities – to be read out at the trial.
It transpired from D.’s statement that on the day of the murder the victim and his friends had come across a man named Astrit Murrja and a woman. D. had recognised Astrit because they had met on another occasion some months before when the same woman had also been present. He knew that Astrit and the woman had had an affair. Astrit had tried to take an item out of the woman’s bag. D had not understood immediately what that item was. D had started to look around so as to find something to protect them. He had thought that Astrit had a gun and because of that he had felt frightened. Astrit had set off to chase the victim and started to shout, “I will kill you! You have harassed my girlfriend!” D. had realised that Astrit intended to kill the victim. D had continued to look around to find something to protect them. The victim had yelled D, “Let’s go”. D had grabbed the victim’s hand telling him “let’s go quickly”. The victim had told D. that Astrit had stabbed him. D. and the victim had started to run. Astrit had been chasing them. According to D., the victim had a letter in his pocket which named Astrit (Arben Murrja) as the person who had stabbed him.
K. stated that on the day of the murder Astrit Murrja had had an argument with the victim. He had subsequently taken a knife out of her bag. S. stated that the (unidentified) Albanian whom they had met at the park had stabbed the victim. R. stated that he had seen a person shouting in Albanian and the victim lying on the ground.
Three other witnesses – Eb., Es. and Ad. – stated that they had seen a person brandishing a knife covered with blood and another person lying on the ground.
The victim’s father gave evidence at the trial to the effect that the applicant had murdered his son. That information had been communicated by his son’s friends. A British police officer, M., also testified in relation to the procedure followed during the relevant investigation.
The applicant and his lawyer denied that the applicant had been involved in the commission of the offence, arguing that on the day of the murder he had been at Bulqiza police station applying for a passport, and that he had not been to the United Kingdom since 2002. The court stated that the applicant had indeed applied for a passport on that day, but that no evidence had been submitted to prove that he had been physically present at the police station. The court also held that, in 2003, the applicant had changed his name from Petrit to Arben to avoid being recognised. On the basis of the documentary evidence in the case file, it also held that the applicant and K. had been having an affair.
On 27 March 2008 the District Court found the applicant guilty of murder and sentenced him to twenty years’ imprisonment. It stated that the applicant was guilty on the basis of evidence contained in the case file, such as: the witnesses’ statements as read out at the trial, the British police officer’s testimony, K.’s mother’s statement (no details of which were given), and the recording of a telephone conversation between K. and her grandmother (no details of which were given). Other evidence mentioned in that decision included: a forensic report, an audio-recording of G.’s witness interview, photographs and video footage of the crime scene, photographs of the victim taken at the morgue, the applicant’s payslips and other documents considered by the court. However, the District Court did not refer to the content of any of these documents in its decision.
2. The appeal proceedings
The applicant appealed, alleging that the trial proceedings had been unfair. He argued that the trial court’s decision had been based only on evidence gathered during the investigation, and that there had been no opportunity to examine crucial witnesses at the trial. He further complained that there was no direct or indirect evidence that could prove his involvement in the commission of the offence.
At the first appeal hearing, through his lawyer, the applicant sought to reopen the investigation. He applied for further investigative actions. In particular, he requested that: an expert’s report be obtained in order to compare the photographs and fingerprints of Astrit Murrja and Arben Murrja; witnesses questioned by the British authorities be summoned; an identification parade be carried out; an expert’s report be obtained to determine the authenticity of the applicant’s signature; and checks be carried out to verify his entry to Albania via the port of Durrës during 2002 and 2003. There is no information as to whether the Court of Appeal properly addressed the applicant’s applications, no records of the appeal hearings having been submitted to the Court.
On 15 December 2008 the Court of Appeal reclassified the charges against the applicant and found him guilty of premeditated murder, sentencing him to twenty-five years’ imprisonment. It relied on the same reasons as the trial court. The reclassification of the charges was based on the fact that the applicant had killed the victim in revenge for exploiting K. as a prostitute. The applicant had formerly exploited K. for the same purpose.
On 9 January 2009 the applicant appealed to the Supreme Court. He submitted that he had not had an opportunity to question the witnesses whose statements had been read out at the trial, that the lower courts had unjustly dismissed his applications for further evidence, and that other witnesses had only made statements about the circumstances of the case.
On 11 June 2010 the Supreme Court dismissed the applicant’s appeal in camera, giving no reasons for its decision.
On 9 July 2010 the applicant lodged a complaint with the Constitutional Court regarding the alleged unfairness of the proceedings.
On 11 October 2010 the Constitutional Court, sitting as a three-member bench, declared the applicant’s complaint inadmissible on the grounds that it concerned the assessment of evidence.
B. Relevant domestic law
The relevant domestic law has been described in detail in the judgments of Berhani v. Albania (no. 847/05, §§ 38-43, 27 May 2010) and Caka v. Albania (no. 44023/02, §§ 52-57, 8 December 2009).
COMPLAINT
The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that it was impossible for him to examine witnesses whose statements were crucial to the domestic courts’ decision to convict him.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015)? In particular:
(a) Was the applicant able to examine witnesses D., S., R., K., She., Shp., Ad., Es. and Eb. at any stage of the proceedings? In this connection, what steps did the domestic authorities take to secure the attendance of those witnesses?
(b) Did the statements of those witnesses serve as the sole or decisive evidence for the applicant’s conviction?
(c) What safeguards did the domestic courts put in place to compensate for the applicant’s alleged inability to cross-examine those witnesses?
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