CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 novembre 2023

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border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }   THIRD SECTION CASE OF NIKA v. ALBANIA (Application no. 1049/17)   JUDGMENT   Art 2 (procedural) • Fatal shooting of applicants’ relative by State agents during a political protest that degenerated into violence in front of the Prime Minister’s office • Authorities’ failure to conduct an effective investigation capable of leading to the identification and punishment of those responsible for the events and of establishing the truth • General shortcomings in the early stages of the investigation • Failure to adequately investigate the possible responsibility for the turn of the events on the part of the commanders on the ground • Specific shortcomings in the investigation into the death of the applicants’ relative Art 2 (substantive) • Unjustified use of lethal force • Deficiencies in the legal framework at the material time governing the use of potentially lethal weapons in connection with crowd-control operations • Protection of Prime Minister’s office, in the circumstances, not in itself a legitimate ground for the use of lethal force • Art   2 did not allow the use of lethal force for the protection of property as such • Need to define any exceptional circumstances that might justify the use of such force for that purpose • Relevant domestic law at the time authorising the use of firearms for the protection of property deficient in that respect • Serious defects in the planning and control of the policing operations in relation to the protest Art 46 • Individual measures • Domestic authorities to continue efforts to elucidate circumstances of applicants’ relative’s death and identify and punish those responsible   STRASBOURG 14 November 2023 FINAL   14/02/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nika v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Georgios A. Serghides,   Darian Pavli,   Peeter Roosma,   Andreas Zünd,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   1049/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Albanian nationals, Ms Rajmonda Nika, Ms Amelia Nika and Ms Mentila Nika (“the applicants”), on 22 December 2016; the decision to give notice to the Albanian Government (“the Government”) of the complaints under Articles 2 and 13 of the Convention and to declare inadmissible the remainder of the application; Having deliberated in private on 10 October 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns allegations of a breach of the substantive and procedural limbs of Article 2 of the Convention in connection with the death of the applicants’ relative, A.N., from a fatal gunshot wound to the head that he received from State agents in the course of a protest on 21 January 2011. THE FACTS 2.     The applicants were born on the dates indicated in the appended table. They were represented before the Court by Mr A. Hakani, a lawyer practising in Tirana. 3.     The Government were initially represented by their Agent, Ms   A.   Hiçka, and, subsequently by, Mr A. Metani, Ms E. Muçaj, Ms B. Lilo and Mr   O. Moçka, General State Advocate. 4.     The facts of the case may be summarised as follows. The protest of 21 January 2011 5.     The applicants are family members (respectively the wife and daughters) of A.N., who died as a consequence of a gunshot wound in the head that he suffered on 21 January 2011 during a protest in front of the building housing the office of the Prime Minister of Albania (“the Prime Minister’s Office”). 6.     Several days before the protest, the Albanian Socialist Party, then the main opposition party, announced that the protest would take place in front of the Prime Minister’s Office, which was located in the main boulevard of Tirana. 7.     On 19 January 2011 the Tirana Police Directorate ( Drejtoria Vendore e Policisë ) wrote to the chairman of the Socialist Party, informing him that the organiser of the protest was under an obligation to give the police written notice of the protest. In response, the Socialist Party gave the police notice on the same day. The next day the Tirana Police Directorate requested more details about the organisation of the protest, the gathering points of the protesters and their itinerary. The Socialist Party provided the requested details on the same day. 8 .     On 19 January 2011, the commander-in-chief of the National Guard (the official guard of honour for the State, in charge of ensuring the protection of high-ranking State officials and certain State-owned property, including the Prime Minister’s Office) ordered the different units of the National Guard to be on the alert and to take specific measures and to prepare detailed plans for protecting the Prime Minister’s Office from any acts of violence during the protest (Order no. 28s/1, issued on the same day). The commanders of the different units of the National Guard prepared their respective plans, which were subsequently approved by the commander-in-chief of the National Guard. In particular, the commander of the “Special Unit” prepared plan no.   28s/9 of 21 January 2011, which provided, in so far as relevant, that a: “group composed of [six officers] will be on standby, ready to open fire in the event of a breach of the cordons of the Second Unit and the Special Unit.” 9.     As regards logistics, the National Guard’s plans provided that in addition to protective equipment such as special vests, helmets, anti-gas masks, officers would be equipped with assault rifles “type 56”, including blank and live ammunition. 10.     Similarly, the Tirana Police prepared a forty-four page “plan of measures” for guaranteeing order before, during and after the protest of 21   January 2011. That plan set out the details of the different specific tasks assigned respectively to each police directorate and department in respect of the protest; notably it instructed them to plan ahead of the protest. 11.     On 21 January 2011 the protesters started gathering at around 11 a.m. in the main square of the city; at the same time the commanding officers of the National Guard gave their final instructions to their officers, including a reminder of the provisions of the Firearms Act (Law No. 8290 of 24   February 1998 on the use of firearms) and the National Guard Act (Law No. 8869 of 22 May 2003 on the National Guard). The National Guard officers subsequently took their positions around the Prime Minister’s Office. Representatives of numerous media outlets were also positioned on different sides of the Prime Minister’s Office – some of them in elevated platforms that had been erected to cover the protest. 12 .     At around 2 p.m. the protesters arrived at the Prime Minister’s Office, before the main entrance to which there were two police cordons. At around 2.30 p.m. some of the protesters started throwing hard objects at the first cordon of police officers, and the situation escalated. The second cordon of officers (which was composed of special police forces), fired tear gas. As a consequence the protesters dispersed temporarily and the police officers in the first cordon, who were not equipped with teargas masks, left their positions too. The protesters continued throwing stones and various hard objects from the sides of the building. They also regrouped in front of it. The authorities fired water cannon to disperse them. A number of trees and cars were set on fire by the protestors, who threw Molotov cocktails towards the Prime Minister’s building. Several police and National Guard officers were injured. 13.     At an unspecified time (around 4 p.m.) a relatively small number of protesters stormed the cast iron car gate at the north of the building and entered twenty or thirty metres into the yard beyond (that is, the area between the protective railings and the building itself). A car driven by a protestor tried to force its way through the car gate but crashed into a barrier erected to prevent such intrusions. An officer of the National Guard used a megaphone to warn the protesters in the following terms: “Citizens, you are breaking the rules, you are breaking the law, you have entered the safety zones; actions will be taken against you in accordance with the law.” 14 .     Subsequently, a group of National Guard officers equipped with shields and truncheons intervened and pushed the protesters out of the yard. 15 .     At an unspecified time, several officers of the National Guard started using their firearms, firing with blank but also live bullets, allegedly in order to deter the protesters from continuing their assaults on the building. At around 4.10 p.m, as a result of the shots, three protesters died on the spot. A.N., who at that moment was close to the pavement opposite the Prime Minister’s Office and was not engaged in any violent acts, was hit in the head by a bullet. Similarly, the other three victims were outside the Prime Minister’s Office yard and none of them was engaging in violent acts. 16 .     Around forty-five citizens, eighty-one officers of the National Guard and twenty-seven policemen were injured as a result of the confrontations. 17 .     After the violence had ended, two doctors at the Trauma Hospital of Tirana – responding to media queries – stated that around thirty people had sought medical attention in the hospital. They stated that three protesters had died of wounds that appeared to have been caused by light weapons fired from a close distance. 18 .     At a press conference a few hours after the protest, S.B., the then Prime Minister, stated that preliminary reports on the incident indicated that the victims had been shot at close range with weapons of a different kind from those used by the police and National Guard. He also invited the prosecutors to investigate the incident. 19. Late in the evening of the same day, a television news channel broadcast a video reportedly featuring the moment at which one of the protesters (other than A.N.) was killed. The video showed the victim, before being shot, standing on the boulevard a few metres away from the car gate to the north of the Prime Minister’s Office and watching as another protester, who was inside the yard, threw an object towards the building. Suddenly, the victim fell to the ground, and other protestors approached and then carried him away. The video also appeared to show a National Guard officer firing his weapon from a window of the semi-basement of the building. 20 .     As for A.N., he received initial medical care at the Trauma Hospital of Tirana and was subsequently transferred for specialised care to Istanbul, where he died on 4 February 2011. He was buried in Albania on 7   February 2011. The initial Investigation Initial investigative measures 21 .     On 21 January 2011 the Tirana Prosecution Office opened an investigation into the events on the basis of suspicions that the following offences had been committed: homicide, destruction of property through fire, destruction of property, abuse of office and participation in an illegal gathering. 22.     On that same evening, police investigators examined the area around the Prime Minister’s Office and retrieved around five hundred bullet casings, together with twelve bullets. They also took photographs and wrote detailed descriptions of the state of the Prime Minister’s Office building and the part of the boulevard where the protest had taken place. In addition, they questioned a number of protestors, doctors and journalists; from the latter the investigators also took copies of video recordings that the journalists and their colleagues had made of events during the protest. The questioning of persons of interest – around ninety-two individuals in total – continued over the following days, weeks and months. 23 .     On 22 January 2011 the prosecutors ordered the Forensic Medicine Institute ( Instituti i   Mjekësisë   Ligjore ) to perform expert examinations of the bodies of all of the victims apart from A.N. In particular, the prosecutors instructed the experts to: examine the wounds; determine how they had been caused; analyse the entrance and exit points of any bullets, and their trajectory; and the cause of death of the those examined. Similar expert examinations were ordered and performed in respect of some of the wounded protesters. 24.     The prosecutors also decided to seize some of the weapons that had been used by the officers of the National Guard during the protest. Additional weapons were also seized in the weeks that followed. The seized weapons, the shells found at the site of the protests and the clothes of the victims were subjected to expert examinations. 25.     Moreover, the prosecutors ordered the National Guard to provide them with copies of all the audio recordings of the radio communications between its officers, in response to which on 6 February 2011 the National Guard stated that the communications had not been recorded. 26.     On 24 and 26 January 2011 two expert chemicals reports, which had been ordered by the prosecutors in order to ascertain whether the above ‑ mentioned three deceased victims and three of the wounded individuals had used firearms during the protests, concluded that no gunshot residue had been present on the clothes of the said individuals. Attempts to arrest National Guard officers for questioning 27 .     In the early morning of 22 January 2022 the prosecutors issued arrest warrants ( urdhër-ndalime ) in respect of six high ranking officers of the National Guard. At 6.20 a.m. the orders were delivered to the police for execution. The subsequent events of 22 January 2011 were described by the then Prime Minister in a speech before Parliament on 23 January 2011: the Minister of the Interior, who was in charge of the police, mentioned in a telephone call to the then General Prosecutor that the officers of the National Guard would be made fully available for questioning. However, the Minister asked for the arrest warrants to be reassessed in view of, inter alia , the opposition’s announcement that a silent march would take place on 28   January 2011 and the need of the National Guard to have all its officers at its disposal. The General Prosecutor refused the request and asked again that the police execute the arrest warrants. In the afternoon, the General Director of Police informed the General Prosecutor that owing to technical and clerical mistakes, the arrest warrants could not be executed. 28 .     On 24 January 2011, the Prime Minister made the following comments on the ongoing investigation into the events: “Although the coup plotters are sticking with their strategy, we will continue our duties as a government. I say [they] continue, because the General Prosecutor – who within a period of six hours, without any investigation, yesterday ordered the arrest of the entire chain [of command] of the National Guard – has today ordered no pre-trial detention in respect of one of the chief terrorists and chief bandits who was filmed and photographed by the Albanian and foreign media with a revolver in his belt, at the door to the Prime Minister’s Office. ... I wish to say to Madame General Prosecutor that the National Guard, which you wish to decapitate for your own purposes[,] protects you too – it has a duty to protect you too; it has protected you and it will protect you again, be sure, for as long as you hold [your] post. ... The lady who releases the man armed with a gun who charged at the officers, who are protecting her, must know that she has entered into very wrong [ të gabuar ] waters and that this is not law enforcement. This is not the law enforcement for which the Albanian citizens voted. To demand the arrest of the commander-in-chief of the National Guard and those who have protected the [State] institutions, and to release the bandit who set fire to [those] institutions, makes you look very bad in front of Albanians and the world.” 29 .     On 27 January 2011, during a meeting with family members of the officers of the police force and the National Guard, the Prime Minister criticised again – this time in offensive terms – the General Prosecutor personally in respect of the way in which the events of 21 January 2011 were being investigated. 30 .     On 2 February 2011, in response to a summons from a parliamentary committee of inquiry into the events of 21 January 2011 which had been established in the preceding days, the General Prosecutor appeared before the committee. She stated that the criminal investigation into the events was ongoing and that she could not respond to the committee’s questions for the time being. She accordingly left the hearing, following which the members of the committee made critical comments – notably, that the General Prosecutor had displayed arrogance, had engaged in the dereliction of her duty and had disrespected the committee. 31 .     On 7 February 2011 police investigators re-examined the site of the protest and noted that the metal fence of the building had been damaged by impact from what appeared to have been projectiles. They took photographs of the fence. Attempts to obtain video recordings made by the Prime Minister’s Office’s security cameras 32.     On 23 January 2011, during a cabinet meeting, the Prime Minister stated that his office was equipped with a security-camera system that had recorded the incidents that had occurred during the protest. He added that he had asked the general secretary of the Prime Minister’s Office to make the recordings available to the prosecutors. 33 . On 26 January 2011 the prosecutors requested the Prime Minister’s Office to provide a copy of the videos recorded by the security cameras installed around the building. In response, the Prime Minister’s Office provided the recordings made by one camera that was located on the roof of the building. 34 .     On 15 February 2011 the prosecutors reiterated their request, in response to which the Prime Minister’s Office replied that the other cameras had been out of order since 2009. 35 .     On 4 March 2011 the prosecutors seized the hard drive (digital disk recorder) of the Prime Minister’s Office’s camera system. On the same date, the Prime Minister’s Office informed the prosecutors that a second security camera had been recording on 21 January 2011 and forwarded them a video recording. The second camera had been oriented towards the metal gate to the north of the building – an area of interest for the investigation. However, the footage of the camera lasted only a few minutes and concerned the period following the end of the protest. Subsequent investigative measures 36.     On 7 February 2011 the prosecutors questioned a number of officers of the National Guard, including A.Ll., who held the position of deputy commander of the National Guard’s “Special Unit” and who had been on duty during the events of 21 January 2011. The prosecutors posed specific questions about the National Guard’s planning prior to the protests – notably to the officers who had drawn up and approved those plans. The officers were also asked whether they had been briefed before the protest on the use of firearms (including on when and under what circumstances they could fire them). Moreover, the prosecutors enquired about the way in which communication between officers had been taken place during the protests, whether those officers had fired their weapons, and other details concerning security during the protest. 37 .     In general, the National Guard officers stated that before the event they had been briefed by their superiors on the use of firearms and other aspects of their duties. On the date of the events in question the orders had been given orally, as the urgency of the situation had not allowed for an alternative means of communication. The different units had coordinated their actions by means of radio communications and, at certain points in the proceedings, via mobile phones. Orders had been given by the respective unit commanders, who had told the officers where they should station themselves and which actions they should carry out. They further stated that they had not received any specific order to use their weapons at any particular time and that they had fired into the air when they had felt that the situation had been veering out of control – notably when protesters had entered the yard of the building. A.Ll. in particular stated that warning shots with blank bullets had not been effective in deterring the protesters, who had realised that the officers were using blank bullets. The officers also stated that they could not explain the marks left by projectiles at human-height level on the metal fence of the building. Additional officers of the National Guard were questioned over the following days and weeks. 38 .     On 8 February 2011 the high-ranking National Guard officers in respect of whom arrest warrants had been issued (see paragraph 27 above), surrendered to the Tirana Prosecution Office. They were questioned on the same day by the prosecutors. 39 .     In response to the prosecutors’ questions, N.P., National Guard commander-in-chief who had directly overseen operations on the ground on the day of the protest, stated that no order had been given to the National Guard officers present at the events in question to open fire; however, he noted that all National Guard officers were at liberty to open fire on their own initiative in order to guarantee the safety of the buildings that they were guarding. He further noted that many officers had been injured and had received treatment at the National Guard’s medical clinic. One officer had been sent to hospital. The National Guard commander had himself, despite the protective equipment that he had been wearing, received a blow from a stone on the eyebrow and had sought medical attention in order to stop the bleeding. When he had returned, he had been “informed” by other officers that they had fired only in the air. In response to a question regarding whether he could offer any explanation for the marks left by projectiles on the metal fence of the building (which were at human-height level) N.P. responded that he could not explain the marks. 40.     On 9 February 2011 the Tirana Prosecutor’s Office examined the logbook of the National Guard’s operations centre ( regjistri i marrjes në dorëzim të shërbimit ), in which the main daily information, orders, tasks and activities of the National Guard are recorded. In particular, the authorities took away a copy of the pages of the logbook concerning the activities of 21   January 2011. The logbook did not contain any record of any order to use firearms. It was noted that N.P. had ordered officers to use truncheons numerous times and that at one point he had cautioned them not to “open ...fire [in any manner] contrary to the law”. At 4.10 p.m. he had ordered that the protesters who had entered the northern yard be pushed back with truncheons. At 4.13 p.m. one officer had urgently requested ammunition. The Tirana Prosecutor’s Office also examined a number of other internal records of the National Guard pertaining to the weapons that had been distributed to their officers on 21 January 2011 and the general organisation and planning of the National Guard officers before the demonstration had taken place. 41.     Following A.N.’s death (see paragraph 20 above), on 5 February 2011 the Turkish authorities extracted a bullet from his head. On 17 February 2011 the Albanian authorities sent a rogatory letter to the Turkish authorities. In response, the bullet was forwarded to the Albanian authorities, who received it in early May 2011. 42.     On 24 May 2011 the Forensics Directorate ( Drejtoria e Policise Shkencore ) of the Albanian Police delivered an expert report on the bullet that had been found in A.N.’s head. It stated that the bullet had lost its original form and identifying characteristics owing to damage; therefore, it was not possible to determine which weapon had fired it. 43.     On 6 June and 21 July 2011 the Albanian authorities sent rogatory letters to the Department of Justice of the United States of America. In as much as relevant, the U.S. authorities were asked to enhance the quality of the videos and photographs of the protest of 21 January 2011 and to perform expert examinations on various objects that were of interest to the investigation – including the hard drive of the security cameras fixed to the Prime Minister’s Office building (see paragraph 35 above), and the bullets and shells that made up part of the contents of the criminal file. 44 .     On 13 August 2011 the U.S. authorities delivered an expert report stating that the hard disk of the Prime Minister’s Office had been manually reformatted (that is to say the main index records had been manually deleted) on 22 January 2011 at 00.51 a.m. and on 28 January 2011 at 12.10 p.m. The report also stated that the data on the hard drive had been copied onto an external drive on the evening of 21 January 2011 and on 28 January 2011. Lastly, the report found that the contents of the hard drive included data showing that eleven security cameras had been configured so that they were capable of recording. 45.     On 5 January 2012 the U.S. authorities delivered another expert report stating, in so far as relevant, that owing “to a lack of sufficient corresponding microscopic marks of value” it was not possible to match the bullet that had been found of the applicant’s family member’s body with any of the weapons submitted for examination. 46 .     Two other expert reports concluded that the bullets that had been found on two other victims had been fired from a Beretta handgun and an automatic MP-5 weapon respectively. On 21 January 2011 these weapons had been used, respectively, by N.P., commander-in-chief of the National Guard, and A.Ll., deputy commander of the National Guard’s “Special Unit”. The reports also stated that after the events of 21 January 2011 the barrel of N.P.’s pistol had been replaced with the barrel of another officer’s weapon. 47 .     On 18 April 2012 the prosecutors charged two officers of the National Guard, A.Ll. and N.P., in connection with the death of three protesters (not including A.N.). A third officer of the National Guard, M.K., was charged with obstruction of justice (see paragraphs 56 et seq. below). On the same date the prosecutors severed A.N.’s case from the rest of the investigation on the grounds that further investigative actions were necessary in connection with his case (see paragraphs 66 et seq. below). Trial of the Information technology Officer of the Prime Minister’s Office 48.     Relying on the above-mentioned forensic expert’s finding that the hard drive of the security-camera system had been copied and that its contents had then been deleted (see paragraph 44 above), the prosecutors charged the information technology (IT) officer of the Prime Minister’s Office with obstruction of justice. 49.     The indictment stated that immediately after the protest of 21   January 2011 the prosecutors had issued an oral order to the administrative staff of the Prime Minister’s Office to preserve intact the video recordings of the building’s security cameras. Despite that order, the contents of the hard drive of the cameras had been copied; the hard drive had then been reformatted (see paragraph 44 above). 50.     In addition, in response to the prosecutor’s request, the administrative staff of the Prime Minister’s Office had initially provided the recordings made by only one camera, which had been located on the roof of the building, stating that the other cameras had been out of order on the day of the events in question (see paragraphs 33-34 above). However, when the prosecutors seized the hard drive of the other cameras, the administrative staff forwarded to them the recordings made by another camera (see paragraph 35 above). 51.     The prosecutors added that, according to the expert report of the U.S.   authorities, more than two cameras had been operational on the date of the events in question; in fact, eleven cameras had been configured for recording (see paragraph 44 above). 52.     In his own defence, the IT officer of the Prime Minister’s Office stated that he had viewed two video recordings in the hard drive and had then copied them to two DVDs at the request of an officer of the National Guard. He had handed one of the DVDs to an officer of the National Guard; the other DVD had been stored in his office. He had forgotten about the second DVD and had been reminded of it only later on. He denied having reformatted the hard drive and stated that after 10 p.m. he had been at home; therefore, he could not have reformatted the drive on the night of 21-22 January. 53.     The officers of the National Guard testified that they had asked the IT officer to give them a copy of the recordings made by the cameras of the Prime Minister’s Office. They also testified that the “server room” had been under their supervision on the night of 21-22 January and that no one had used the equipment. 54.     On 26 July 2012 the District Court of Tirana found the defendant not guilty, noting that it had not been established beyond a reasonable doubt that it was the defendant who had committed the acts alleged by the prosecutors. On 20 February 2013 that judgment was upheld on appeal; on 19 March 2015 the Supreme Court rejected an appeal on points of law lodged by the prosecution. 55 .     The domestic courts concluded that the hard drive had been reformatted (see paragraph 44 above) but noted that there was no evidence that it had been the defendant who had carried out that act. In fact, they noted that the statements of officers of the National Guard, who had testified that they had overseen the server room for the whole of the night in question, had contradicted the version of events advanced by the prosecution. The courts also accepted that the defendant’s failure to provide the second video recording in due time had disclosed negligent conduct rather than criminal intent. Trial of the National Guard officers 56 .     According to the indictment, on 21 January 2011 between 4 p.m. and 4.10 p.m. N.P. and A.Ll. had simultaneously fired live bullets aimed directly at the protesters. Contrary to his initial statement, in which he had not mentioned firing his weapon on the day of the protest (see paragraph 39 above), N.P. had allegedly fired eleven bullets in the direction of a group of protesters, killing one of them. A.N. had allegedly been standing near that protester. Following the end of the protest, N.P. had allegedly swapped the barrel of his handgun with that of M.K. (see paragraph 46 above) – a fellow National Guard and co-accused in the proceedings – in order to conceal the fact that N.P. had fired his own handgun. Relying on expert examinations of the victims’ clothes, which did not disclose any gunpowder residues, the prosecutors affirmed that the victims had not used fire arms. 57.     As regards A.Ll., he had allegedly fired an automatic round ( breshëri ) of four or five shots into the air before lowering his aim and firing directly at a group of protesters, one of whom had died and others among whom had been wounded. 58 .     On 7 February 2013 the District Court of Tirana found N.P. and A.Ll. not guilty (see paragraph 47 above). In respect of N.P., the court acknowledged that a bullet fired from his handgun had killed one of the protestors, who had died on the spot; however, the prosecutors had failed to prove the exact circumstances of this action – in particular, whether the victim had been within N.P.’s field of vision and whether the accused had acted with the precise intention of killing the victim. Accordingly, N.P. had not committed the offence of “murder endangering the life of several persons” ( vrasje me dashje e kryer në menyrë të rrezikshme për jetën e shumë personave ) under Article 79 § (ë) of the Criminal Code. Similarly, the court found that the evidence before it proved that the second protestor had died as a result of a ricochet bullet that had been shot by A.Ll.; however, it had not been established that the accused had acted with the precise intention of killing the victim. As regards the third victim and the individuals who had been wounded the court found that there was no evidence implicating A.Ll. It accordingly concluded that A.Ll. was not guilty of the offence of the “deliberate homicide of two or more persons” ( vrasje me dashje e kryer kundër dy ose më shumë personave ) under Article 79 § (dh) of the Criminal Code. Lastly, the court noted that the prosecutors had withdrawn the charge of obstruction of justice against M.K., who had been initially accused of having been involved in the change of the barrel of N.P.’s gun after the 21   January 2011 incident for the purposes of concealing the facts pertaining to the incident (see paragraph 46 above). The court found M.K. not guilty of that offence. 59.     On 18 September 2013 the Tirana Court of Appeal found, by two votes to one, N.P. and A.Ll. guilty of negligent manslaughter ( vrasje nga pakujdesia ) under Article 85 of the Criminal Code and sentenced them to, respectively, one and three years’ imprisonment. The court upheld the remainder of the first-instance judgment. 60 .     The appeal court, in general, agreed with the factual findings made by the first-instance court. It noted in particular that in the beginning the protest had been peaceful but that it had subsequently turned violent and the protesters had thrown objects and insulted the officers of the National Guard. It also stated that officers of the National Guard, after warning the protesters, had used live ammunition at around 4 p.m., when “around 100 protesters had opened by force one of the gates” to the Prime Minister’s Office. Moreover, the court stated that officers of the National Guard, including N.P. and A.Ll., had used their firearms at almost the same time to fire into the air using live bullets in order to deter a violent crowd. It was not proven, however, that they had fired directly at the two victims in whose bodies the experts had found bullets that had been shot from the weapons of N.P. and A.Ll. 61.     According to a majority of the members of the bench of the Tirana Court of Appeal, it had not been established that the accused had intended to kill those specific individuals; that fact excluded the charge of murder. In the Court of Appeal’s view, even if it were true that after the protests N.P. had switched the barrel of his gun with that of another gun, that fact could not change retroactively the legal categorisation of his actions on 21   January 2011. 62 .     However, the court concluded that the deadly force used by the two defendants had been disproportionate, as the two victims had not been engaged in any act of violence at the moment in question. The court went on to find that the defendants should have foreseen the potential consequences of their decision to fire into the air using live bullets. The defendants were, therefore, found guilty of negligent manslaughter under Article 85 of the Criminal Code. 63.     One judge appended a dissenting opinion. She stated that in her view there was sufficient evidence to conclude that N.P. and A. Ll had aimed towards the crowd of protesters directly rather than into the air. She added that in her opinion the defendants had not targeted anyone in particular but had nevertheless been able to predict the possible consequences of their actions and therefore had acted with indirect intent ( dolus eventualis ) rather than with negligence. She concluded that they should have been found guilty of murder. 64 .     On 25 April 2016 the Supreme Court rejected appeals on points of law lodged by the prosecutors, N.P. and A.Ll. The court stated that appeals on points of law should not be a mere restatement of the grounds of appeal before the second-instance court and should rather state clearly the legal arguments that are submitted for the consideration of the Supreme Court. It went on to find that it did not discern any contradiction in that part of the reasoning of the Court of Appeal that addressed the parties’ arguments. Noting that the issues raised in the appeals on points of law related to the evaluation of evidence rather than legal arguments, it rejected them as inadmissible. 65.     The families of three of the victims lodged applications with the Court, which were resolved with friendly settlements (see Veizi and Ded   v.   Albania , (striking out) [Committee], no. 16191/13, 28 March 2017 and Myrtaj v. Albania (striking out) [Committee], no.   62907/16, 5   March 2019). Further investigative measures concerning A.N.’s death 66 .     On 29 January 2014 the prosecutors re-interviewed two individuals, I.P. and I.Q, who had been standing near A.N. and had also been injured by firearms during the protest of 21 January 2011. On the same date, on the basis of their statements, the Tirana Prosecutor’s Office staged a partial reconstruction of the circumstances that had led to their being injured. 67.     On 5 February 2014 the prosecutors re-interviewed the first applicant and several members of A.N.’s family. 68.     On 2 April 2014 the prosecutors re-examined the logbook of the National Guard’s operations centre. 69.     From February until April 2015 the authorities re-questioned several members of the National Guard who had participated in the above-mentioned effort on 21 January 2011 to push back the protesters using truncheons. The officers stated that on the date in question they had received orders via radio and their personal mobile phones and in person. They did not recall receiving an order to fire into the air using live bullets. 70 .     On 5 May 2014 the Forensic Medicine Institute produced an expert report on A.N.’s wounds. The report stated that the examination had been ordered by the prosecutors on 21 January 2011. The experts cited the medical records that been drawn up when he had been admitted to the Trauma Hospital of Tirana. They also cited an expert report of 3 March 2011 produced by the Turkish authorities according to which a bullet had been found in A.N.’s head. Referring to these records, the 2014 report concluded that A.N. had been wounded on the left side of his forehead. The wound had been caused by a single shot from a firearm; the shot had fractured the bone, and there was no exit point. The direction of the bullet had been from the front to the back and from left to right. 71.     On 3 February 2015 the Tirana Prosecutor’s Office decided to order another ballistics expert report on the bullet that had been found on A.N.’s body, and transferred the bullet to the Police Forensics Directorate. On 20   March 2015 the latter returned the package to the Tirana Prosecutor’s Office noting that the Office had sent the wrong bullet. 72.     Following another request for a ballistics report, on 11   September 2015 two experts re-examined the bullet. They noted that it had six lands and grooves ( vjaska ); however, they concluded that because the bullet was damaged, it was impossible to match it with the weapon from which it had been fired. 73 .     On 22 June 2016 a family member of A.N. requested that the General Prosecutor’s Office and the Tirana Prosecutor’s Office inform him of the progress of the investigation and forward him a copy of the investigation file