CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 novembre 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .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 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } Communicated on 26 January 2018 and 16 November 2021   THIRD SECTION Application no. 1049/17 Rajmonda NIKA and others against Albania lodged on 22 December 2016 Published on 6 December 2021   UPDATED SUBJECT MATTER OF THE CASE The application, which was initially communicated on 26 January 2018, concerns the serious injury of the applicants’ relative during an anti-government demonstration which took place in front of the Prime Minister’s office in Tirana on 21 January 2011. The applicants’ relative subsequently died in a hospital in Turkey. A criminal investigation was opened into the events of 21 January 2011. The applicants alleged that arrest warrants for certain Republican Guard officers were not executed owing to the authorities’ opposition to comply with them, and statements made by the then Prime Minister and Minister of Interior for this purpose. In addition, they contended that video footage and/or voice recordings of the demonstration was removed from servers of the Prime Minister’s office. Subsequent to the death of the applicants’ relative, the authorities carried out ballistic examinations of the projectile which had been extracted from the victim’s head and was damaged. However, they were unable to identify the firearm which had been used to shoot at the victim. Neither were they able to identify the perpetrator and commit any individual to trial after questioning numerous witnesses. On 28   February 2020 the Tirana prosecutor’s office decided to stay the investigation into the death of the applicants’ relative owing to the impossibility to identify the perpetrator who had shot at the victim. The case file was transferred to the police. However, on 2 April 2021 the prosecutor’s office decided to reopen the investigation following a request by the police to carry out further investigative actions. To date, it does not transpire that any investigative actions have been carried out. While the investigation was ongoing, on 19 September 2016 the applicants lodged a claim for damages for the loss of life of their relative. On 30 January 2017 the Administrative Court of First Instance accepted the applicants’ claim for damages and held that the State was responsible for the victim’s loss of life. It awarded each applicant ALL 12,834,097 (EUR   103,524). In their written observations, the Government admitted that the victim had died as a result of the “disproportionate” use of force by State agents and that the award had been paid in full. The applicants complain under the substantive limb of Article 2 of the Convention that (i)   the State agents were responsible for the shooting and subsequent death of their relative, (ii) the State failed to comply with its positive obligations to put in place an adequate legal framework regarding the use of force, and (iii) the planning and control of law-enforcement operation during the demonstration of 21 January 2011 had failed to secure the protection of their relative’s life. They also complain under the procedural limb of Article 2 of the Convention that the investigation   into   the death of their relative was not effective in that (i) the authorities did not identify or punish those responsible for the shooting and death of their relative, (ii) the authorities did not determine whether the use of force was justified in the circumstances; (iii) they were denied access to the investigation file, and (iv) the criminal investigation was not concluded within a reasonable time. Lastly, under Article 13 of the Convention they complain that they did not have an effective remedy in respect of the complaints raised under Article 2. QUESTIONS tO THE PARTIES 1.     Having regard to the Government’s admission in their written observations that the victim had died as a result of the “disproportionate” use of force by State agents as well as the award of compensation by the Tirana Administrative Court in relation to his death, which has been paid in full, can the applicants continue to claim to be “victims” of a breach of the substantive limb of Article 2 of the Convention (see, mutatis mutandis , Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010   ; Selahattin Demirtaş v. Turkey (no.   2) [GC], no. 14305/17, §§ 217-18, 22   December 2020?)   2.     If so, has there been a breach of the substantive limb of Article 2 (see,   for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 158-262, ECHR 2011 (extracts))? In particular: (a)     Did the use of lethal force by State agents during the demonstration of 21 January 2011 exceed what was “absolutely necessary” within the meaning of sub-paragraphs 2 (a), (b) or (c) of Article 2 (see, for example, Güleç v. Turkey , 27 July 1998, §§ 70-73, Reports of Judgments and Decisions 1998 ‑ IV, and Ramsahai and Others v. the Netherlands [GC], no.   52391/99, §§ 286-89, ECHR 2007 ‑ II)? (b)     What was the legal and administrative framework regarding the use of lethal force by State agents during mass gatherings? In particular, was that framework, including the Republican Guard Act (Law no. 8869 of 22   May 2003, as amended), compatible with the requirements of Article 2 (see , for example, Makaratzis v. Greece [GC], no. 50385/99, §§ 56-72, ECHR 2004 ‑ XI)? (c)     Were the organisation and planning of the relevant law-enforcement operations compatible with the requirements of Article 2 to protect life (see, for example, Bubbins v. the United Kingdom , no.   50196/99, §§ 136 and   141-52, ECHR 2005 ‑ II (extracts))? In particular: (i)     Did the law-enforcement agents have recourse to less life-threatening measures of crowd control (see, for example, Şimşek and Others v. Turkey , nos. 35072/97 and 37194/97, § 108, 26 July 2005)? (ii)     Did the relevant authorities, including the State police and the Republican Guard, coordinate their respective operations before and during the demonstration? (iii)     Did the relevant agents receive any prior training in maintaining order and the use of lethal force during demonstrations (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 97, ECHR 2005 ‑ VII)? The Government are requested to provide evidentiary documents in support of their submissions, including any inquiry reports which may have been produced in the aftermath of the demonstration of 21 January 2011.   3.     Having regard to the procedural protection of the right to life, was the investigation in the present case capable of satisfying the requirements of an “effective investigation” within the meaning of the Court’s case-law concerning the procedural limb of Article 2 of the Convention (see, for example, Giuliani and Gaggio [GC], cited above, §§ 298-306; Mustafa Tunç and Fecire Tunç v. Turkey [GC], no.   24014/05, §§ 169-82, 14   April 2015; and Armani Da Silva v. the United Kingdom [GC], no.   5878/08, §§   229-39, 30 March 2016)? In particular, did the national authorities take reasonable steps to: (a)     collect and secure evidence on the site of the incident? (b)     carry out all the necessary ballistic and other forensic examinations? (c)     question all relevant and key witnesses, including Republican Guard officers who had been involved in the relevant operations, and were the interviews conducted in a sufficiently prompt and appropriate manner, free of any external pressure? (d)     investigate the alleged disappearance of video footage/audio recordings related to the events of 21 January 2011 from the computer servers of the Prime Minister’s Office; or investigate any alleged attempts by Republican Guard officers to tamper with the evidence or otherwise engage in the obstruction of justice? (e)     assess whether there had been adequate planning and coordination in the conduct of the relevant law-enforcement operations? In particular, did the criminal investigation shed light on any responsibilities within the chain of command as regards the use of lethal force? (f)     identify and punish those responsible for the loss of life of the applicants’ relative? (g)     determine whether the use of force by the State agents was justified? (h)     ensure that the investigation as a whole was independent and impartial, and conducted with the required diligence and speed (see, for example, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 335-48, ECHR 2014 (extracts)? (i)     give the applicants, who were the victim’s next-of-kin, adequate access to the investigation (see, for example, Oğur v. Turkey [GC], no.   21594/93, § 92, ECHR 1999 ‑ III)? The Government are requested to provide a list showing in chronological order the steps taken by the authorities to investigate the shooting of the applicants’ relative, and an update on the current state of investigation.