CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFD69004D { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sADADF4A7 { font-family:Arial; text-decoration:underline }   Communicated on 28 March 2017   FIRST SECTION Applications nos. 44673/07 and 47495/07 Sokol KOCIU against Albania and Arben BERBALLA against Albania lodged on 28 September 2007 and 11 October 2007 respectively STATEMENT OF FACTS The applicants are both Albanian nationals who were born respectively in 1961 and 1960 and live in Tirana. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. Between 1997 and 2000 the two applicants were allegedly members of an international criminal organisation which was involved in trafficking drugs across Europe, North America and South America. Their activity was the subject of an international investigation carried out by several countries including, amongst others, Albania, Italy and Spain. On 31 January 2001, the Tirana Prosecutor’s Office instituted criminal proceedings against the first applicant, S. Kociu, who was at the time a judicial police officer attached to the Office of the General Prosecutor of Albania ( oficer i Policisë Gjyqësore ), in respect of the criminal offences of setting up an armed gang and criminal organisation, organisation and leading of a criminal organisation for the purposes of trafficking drugs and committing crimes by armed gangs and criminal organisations, and the forgery of identity cards or visas, committed in collusion with others (krijim i bandës së armatosur dhe organizatës kriminale me qëllim trafikimin e narkotikëve, kryerjes së krimeve nga bandat e armatosura dhe organizatat kriminale, krijimi i bandës së armatosur dhe organizatës kriminale, falsifikimi i letërnjoftimeve ose vizave kryer në bashkëpunim) . On the same day, criminal proceedings were instituted against the second applicant, A. Bërballa, in relation to the criminal offences of setting up an armed gang and criminal organisation, and the organisation and leading of a criminal organisation for the purposes of trafficking drugs and committing crimes by armed gangs and criminal organisations (organizim dhe drejtim i organizatave kriminale me qëllim trafikimin e narkotikëve, krijimi i bandës së armatosur dhe organizatës kriminale) . On 3   February 2001 the Albanian authorities recorded a conversation between Mr. Bërballa and F. D. (a co-accused), on the basis of Articles 221 and 222 of the Code of Criminal Procedure, while they were in pre-trial detention. The recording was made on the basis of a decision by the prosecutor, which was confirmed by a court decision on 4 February 2001. 1.     Trial proceedings On an unspecified date the Tirana District Court, through the Ministry of Justice, sent a letter of request ( letër-porosi ) to the Italian Ministry of Justice, pursuant to the European Convention on Mutual Assistance in Criminal Matters, to question a witness, L.C., on behalf of the Albanian judicial authorities. The appearance of the witness at the trial was impossible for security reasons because she was detained in Italy at that time. On 25   November 2002 L.C. was questioned before the Rome Court of Appeal in the presence of Italian judicial officials, Albanian judges (the Tirana District Court bench composed of three judges), two Albanian prosecutors and two Albanian lawyers. As it was impossible for the defendants to be present in Italy because they had been remanded in custody, the Tirana District Court bench, of its own motion, appointed three Albanian lawyers, of whom only two were present. From the documents in the case file it appears that the Tirana District Court bench addressed questions directly to L.C. The lawyers also put questions to L. C. on behalf of the applicants and other co-accused. However, the defendants (including both applicants) did not wish to question L. C., but had instead explicitly requested that the court allow them to appear in person at the hearing. An interpreter was also present and was provided with an Italian translation of the questions that had been prepared by the Tirana District Court bench. The questioning of L. C. before the Rome Court of Appeal was then transcribed by the Albanian authorities. In accordance with Article 369 of the Code of Criminal Procedure, the Court allowed her statements to be read out at the trial. L.C. explained the functioning and funding of the Albanian organisation and identified the two applicants from their pictures. She stated that Colombian participants of the organisation had sent her on a trip to Albania to check the sustainability and reliability of the criminal organisation set up by the two applicants and other co-accused. Another witness, T.M., was questioned by a United States prosecutor based on a legal assistance request sent by the Italian authorities. The record of the questioning was forwarded to the Albanian authorities. On 28   January 2003 the US Department of Justice sent a fax to the Albanian authorities authorising the use of the evidence for trial purposes without any restriction. The court allowed those statements to be read out at the trial, in accordance with Article 369 of the Code of Criminal Procedure. T.M. stated that he had met several of the accused in Rome on 18 April 2000 and had been accompanied by them to Albania. Moreover, the reason for his visit to Albania had been to check a consignment of cocaine which had been due to arrive in Albania by ship. Furthermore, T.M. identified all the members of the Albanian organisation for the trafficking of cocaine by giving the specific names of the first applicant and other co-accused, the mode of operation of the organisation, the means at their disposal, the financing, its leadership and participants, the places and times involved, and the positions and tasks taken on by all of the accused in the trafficking. Another witness, F. G., was questioned by the Italian authorities on the basis of a legal assistance request sent by the Albanian authorities. The Tirana District Court found that F.G.’s statements proved that a speedboat had been handed over to the first applicant in the port of Durrës and that it was to be at the disposal of the organisation. On 14 April 2003 the District Court found the applicants guilty. Amongst other items of evidence, it relied on the testimony of L.C. and T.M. The first applicant was found guilty of setting up a criminal gang and a criminal organisation, organisation and leading criminal organisations, and the forgery of identity documents, passports or visas committed in collusion with others, and was sentenced to fifteen years’ imprisonment ( krijim i bandës së armatosur dhe organizatës kriminale, organizimi dhe drejtimi i organizatave kriminale, falsifikimi i letërnjoftimeve apo vizave kryer në bashkëpunim ). The Tirana District Court stated that it had been proven that the first applicant had had a role based on his official capacity as a facilitator of illegal border crossings, issuing passports and visas for foreign travel and using state infrastructure to benefit a criminal organisation. The second applicant was found guilty of setting up armed gangs and criminal organisations and the organisation and leading of criminal organisations and was sentenced to fifteen years’ imprisonment ( krijim i bandës së armatosur dhe organizatës kriminale, organizimi dhe drejtimi i organizatave kriminale ). The Tirana District Court stated that it took into account the second applicant’s leading, organisational and funding role. Both applicants were acquitted of the commission of crimes by armed gangs and criminal organisations ( kryerja e krimeve nga bandat e armatosura dhe organizatat kriminale ). 2.     Appeal proceedings On an unspecified date the applicants and other accused lodged an appeal with the Tirana Court of Appeal against the Tirana District Court’s decision, stating that they were not guilty. In the appeal, the first applicant complained that the Tirana District Court’s decision had been made in manifest violation of the provisions of the Constitution of Albania, the European Convention on Human Rights and criminal procedural law, that there had been no opportunity to examine crucial witnesses, and that the decision had been based on wrongly established facts. The second applicant complained in his appeal that there had been no criminal organisation and therefore no criminal offence, that the evidence had been gathered in breach of criminal procedural law and that the available evidence had not proved his or their guilt. Moreover, he stated that the ships involved in the case had been purchased by him and his agents and not by a criminal organisation. On 15 November 2003, the Tirana Court of Appeal upheld the Tirana District Court’s decision. The appellate court stated that the applicants had colluded in setting up a criminal organisation. That organisation had been sustained, had had a certain level of organisation and a well-detailed plan of action which had consisted in dividing up functional tasks and finances, and had relied on social connections and managerial and leadership skills. The charges had been based on evidence such as witness statements obtained by the judicial authorities of other countries based on agreements on legal assistance in criminal matters, a recording of the second applicant with another accused, the questioning of a number of witnesses, reports of a search of the second applicant, reports of a search of the second applicant’s house, seized passports and other documents related to the issuance of passports in respect of two citizens, and so forth. On an unspecified date, the applicants lodged an appeal with the Supreme Court. They applied to have both lower courts’ decisions quashed, repeating in the main the statements they had given to the lower courts. The Tirana Prosecutor’s Office also lodged an appeal with the Supreme Court. On 28 May 2004, the Supreme Court dismissed the appeals. The Supreme Court bench included Judge K. N., who had previously been a lawyer in criminal proceedings in 2000 against third persons who had been investigated by the first applicant. On an unspecified date the applicants lodged an appeal with the Constitutional Court, arguing that the witness testimony had been obtained in breach of the procedural laws and that the principle of a “court established by law” and “ ne bis in idem ” had been violated. On 29 December 2005 the Constitutional Court upheld the applicants’ constitutional complaint and remitted the case to the Supreme Court. The Constitutional Court stated that the Supreme Court had failed to verify the constitutionality of the fairness of the judicial proceedings carried out by the domestic courts. Judges S.S., Xh. Z. and P. P. issued a concurring opinion ( arsyetim paralel ). They agreed with the majority on the remittal of the case, but stated that the Constitutional Court should have examined the applicants’ claims, which, however, they found mostly ill-founded. However, since there had been a breach of the principle of “ ne bis in idem ” the case had to be remitted to the Supreme Court. On 12 May 2006 the Supreme Court amended the lower courts’ decisions in part, finding a breach of the principle of “ ne bis in idem ”. It finally found the first applicant guilty of setting up and leading a criminal organisation for the purposes of the illegal trafficking of narcotics and the forgery of passports and visas, committed in collusion with others, under Articles 284/a § 2, 189 § 1 and 25 of the Criminal Code ( organizimi dhe drejtimi i organizatës kriminale me qëllim trafikimin e lëndëve narkotike, falsifikimit të letërnjoftimeve apo vizave, të kryer në bashkëpunim ) and the second applicant of setting up and leading a criminal organisation for the purposes of the illegal trafficking of narcotics under Article 284/a § 1 of the Criminal Code ( organizimi dhe drejtimi i organizatës kriminale me qëllim trafikimin e lëndëve narkotike). It dismissed the rest of the applicants’ complaints. On an unspecified date the applicants lodged an appeal with the Constitutional Court. They complained of unfairness in the proceedings, the lack of a possibility to examine witnesses, and that the principle of a “court established by law” had been breached. In addition, the second applicant complained of interference with his private life as a result of the monitoring of his conversation while he was in detention. On 17 April 2007 the Constitutional Court unanimously dismissed the applicants’ constitutional complaint, which included claims examined on 29   December 2005. Judges S. S., Xh. Z. and P. P. were also members of the Constitutional Court bench which took that decision. B.     Relevant domestic and international law 1.     Domestic law (a)     Criminal Code Article 25 provides that collusion (bashkëpunimi) is the agreement of two or more persons to commit a criminal act. Article 189 § 1 provides that the falsification or use of falsified identity documents, passports or visas is punished with imprisonment from six months to four years. Article 284/a § 1 provides that setting up, leading and financing criminal organisations for the purposes of cultivating, producing, fabricating or the illegal trafficking of narcotics is punishable by imprisonment from ten to twenty years. Article 284 § 2 provides that the creation of conditions or facilities for such activities by persons with state functions is punishable by imprisonment from five to fifteen years. (b)     Code of Criminal Procedure Article 221 allows for the interception of conversations or telephone communications and other forms of telecommunications in relation to offences carrying a penalty of at least five years’ imprisonment. Article 222 provides in its first paragraph that, at the request of a prosecutor, the court can authorise the interception of communications if it serves to further an investigation. The second paragraph of Article 222 provides that when there are reasonable grounds to believe that a delay might seriously damage an investigation, the prosecutor can order an interception by a decision containing the appropriate reasons. He must inform the court immediately or within twenty-four hours. Article 369 of the Code of Criminal Procedure provides that during a trial, statements of an Albanian or foreign citizen residing abroad can be read out if the person has been summoned and has failed to appear or if that person has not been found after a search by the judicial police. In such cases the report of the statement is assessed in relation to other evidence adduced at the trial. 2.     Relevant International law The Council of Europe European Convention on Mutual Assistance in Criminal matters of 20 April 1959 provides, in so far as relevant, as follows: Article 3 “1.     The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. 2.     If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it. 3.     The requested Party may transmit certified copies or certified photostat copies of records or documents requested, unless the requesting Party expressly requests the transmission of originals, in which case the requested Party shall make every effort to comply with the request.” Article 4 “On the express request of the requesting Party the requested Party shall state the date and place of execution of the letters rogatory. Officials and interested persons may be present if the requested Party consents.” Article 5 “1.     Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions: a)     that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party; b)     that the offence motivating the letters rogatory is an extraditable offence in the requested country; c)     that execution of the letters rogatory is consistent with the law of the requested Party. 2.     Where a Contracting Party makes a declaration in accordance with paragraph 1 of this article, any other Party may apply reciprocity.” Article 6 “1.     The requested Party may delay the handing over of any property, records or documents requested, if it requires the said property, records or documents in connection with pending criminal proceedings. 2.     Any property, as well as original records or documents, handed over in execution of letters rogatory shall be returned by the requesting Party to the requested Party as soon as possible unless the latter Party waives the return thereof. “ COMPLAINTS The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention of the alleged impartiality of the Constitutional Court and Supreme Court benches and about their inability to examine witnesses whose statements were crucial to the domestic courts’ decision to convict them. The second applicant additionally complains under Article 8 of the Convention of a breach of his right to a private life on account of the recording of his conversation with another co-accused while he was in detention. QUESTIONS TO THE PARTIES As regards both applications   1.     Did the applicants have a fair hearing in the determination of the criminal charge against them, 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 in application no. 44673/07 able to examine the witnesses T. M. and F. G. at any stage of the proceedings? In that connection, what steps did the domestic authorities take to secure the attendance of those witnesses? (b)     Was the applicant in application no. 47495/07 able to examine the witness T. M. at any stage of the proceedings? In this connection, what steps did the domestic authorities take to secure the attendance of this witness? (c)     Did the statements of those witnesses serve as the sole or decisive evidence for the applicants’ conviction? (d)     What safeguards did the domestic courts put in place to counterbalance the applicants’ alleged inability to cross-examine those witnesses? 2.     Did the applicant in application no. 47495/07 exhaust all the domestic remedies in respect of the complaint concerning Judge K. N.’s alleged lack of impartiality, as required by Article 35 § 1 of the Convention? 3.     In respect of both applications: having regard to the participation of Judge K. N., who had been a lawyer in criminal proceedings in 2000 against third persons investigated by the applicant Sokol Kociu, was the Supreme Court bench of 28 May 2004 impartial, as required by Article 6 § 1 of the Convention?   As regards application no. 44673/07   Having regard to the participation of Judges S. S., Xh. Z. and P. P., who had previously been members of the Constitutional Court bench of 29   December 2005 and were authors of the concurring opinion ( arsyetim paralel ), was the Constitutional Court bench of 17 April 2007 impartial, as required by Article 6 § 1 of the Convention?   As regards application no. 47495/07   1.     Did the applicant exhaust all the domestic remedies in respect of his Article 8 complaint, as required by Article 35 § 1 of the Convention? 2.     Has there been any interference with the applicant’s right to respect for his private life on account of the recording of his conversation with another co-accused while they were in detention immediately after his arrest? Was the interference justified under Article 8 § 2 of the Convention?