CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 mars 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .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 } .sC7D66CED { margin-top:36pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .sE77B86B8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt } .sEC28DD31 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt } .s3F9BA698 { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s7C22C014 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.11pt; font-family:Arial; text-transform:uppercase } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s255A9644 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s1F722660 { margin-top:14pt; margin-left:21.3pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid } .sD87A9275 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid } .s99FFA883 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sCBF2D345 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .s8B983D37 { text-transform:none } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .sFABD3260 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s16F6432D { width:7.9pt; font:7pt 'Times New Roman'; display:inline-block } .sFF8BF293 { width:8.05pt; font:7pt 'Times New Roman'; display:inline-block } .s3CAF9CA4 { width:8.72pt; font:7pt 'Times New Roman'; display:inline-block } .sEB3FA797 { width:8.43pt; font:7pt 'Times New Roman'; display:inline-block } .sA6765C01 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-11.3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFA550501 { width:6.3pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFCBD8E09 { margin-top:42pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC2E086EB { width:36.89pt; display:inline-block } .s871A718A { width:136.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }   THIRD SECTION CASE OF LEKA v. ALBANIA (Application no. 60569/09)   JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 (a), (b) and (c) • Fair hearing • Information on nature and cause of accusation • Free legal assistance • Manner in which identity parade carried out not in breach of fair trial requirements • Reclassification by Court of Appeal of charges applicant was convicted of, which was based on the same facts and could have been anticipated • Applicant had time and facilities to prepare his defence • No compelling reasons for restriction of applicant’s right to a lawyer at pre-trial stage during prosecution questioning • Very strict scrutiny • In specific case circumstances, overall fairness of criminal proceedings not irretrievably prejudiced by absence of a defence lawyer at that stage   Prepared by the Registry. Does not bind the Court.   STRASBOURG 5 March 2024   FINAL   05/06/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Leka v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Yonko Grozev,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   60569/09) 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 an Albanian national, Mr Durim Leka (“the applicant”), on 9 November 2009; the decision to give notice to the Albanian Government (“the Government”) of the complaints concerning the amendment of the charges against the applicant by the Appeal Court, the applicant’s right of access to a lawyer at the pre-trial stage of the criminal proceedings against him and the manner in which the identity parade was carried out and to declare the remainder of the application inadmissible; the observations submitted by the Government and the observations in reply submitted by the applicant; third-party comments received from Res Publica, which had been granted leave by the President of the Section to intervene in the written procedure (Article 36 § 2 of the Convention and Rule   44 § 3 of the Rules of Court); Having deliberated in private on 13 February 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged unfairness of criminal proceedings against the applicant in which he was convicted of robbery resulting in death, attempted murder and illegal possession of firearms, and was sentenced to life imprisonment. THE FACTS 2.     The applicant was born in 1983 and is serving a life sentence in a high-security prison in Albania. The applicant was represented by Mr S. Puto, a lawyer practising in Tirana. 3.     The Government were initially represented by their then Agent, Ms   A.   Hicka, and subsequently by Mr O. Moçka, General State Advocate. 4.     The facts of the case may be summarised as follows. Investigation 5.     At the time of the events at issue the applicant was 22 years old and worked as a bricklayer. On 23 August 2005 one A.S. was shot dead in Shijan, Saranda. His brother P.S. who was present and also shot at but not hit, immediately went to the police and reported the crime. The same day the police carried out an inspection of the crime scene and found two spent cartridge cases on the ground. During a search carried out the following day the police found another spent cartridge case. 6 .     On 23 and 24 August 2005 the police interviewed the applicant in order to establish his relationship with A.S. because a note with the applicant’s telephone number had been found on A.S. At the time of those interviews the applicant was not yet a suspect and he did not make any statements incriminating himself during the interviews. He was only asked whether he knew A.S. and P.S. and replied that he did not. 7.     On 24 August 2005 the prosecution, as an urgent secret surveillance measure, planted a hearing device in the waiting room of the Saranda police and obtained a recording of a conversation between the applicant and his brother N.L. which revealed that the applicant had said that he had killed A.S. and had then gone to Saranda, where he had taken a pedal boat out to sea and thrown the gun in the direction of the Grand Hotel in Saranda. The prosecution subsequently asked the Saranda District Court to approve the secret surveillance measure and it was approved on 28 August 2005. 8 .     The police arrested the applicant on 27 August 2005 and he was questioned by prosecutors the same day. Before the questioning he was informed of his rights under the Code of Criminal Procedure, which included the rights to remain silent and to be assisted by a lawyer. The applicant said that he would give a statement without a lawyer and that he would decide later whether to have a lawyer. He signed the record of the questioning, which stated that the applicant had been informed of his rights under Article 309 of the Code of Criminal Procedure (see paragraph 31 below) and that he had made no comment. The applicant confessed to killing A.S. and shooting at P.S. He said that he had needed money for his sister’s wedding which he had not had. On 23   August 2003 at about noon he had met A.S., a foreign exchange dealer, in Saranda, and asked him to exchange 8,000 euros (EUR) for Albanian leks (ALL), even though he did not have that money and he had actually intended to take the Albanian currency from A.S. without giving him any euros in exchange. It had been agreed that A.S. would bring the Albanian currency to the village of Shijan, where the applicant lived. At about 5.30 p.m. the applicant had called A.S. on the telephone and told him to meet him in Shijan at the side of a road. The applicant had taken a gun that he had had at home with him with the intention of scaring A.S. and taking the money from him. A.S. had arrived on a motorcycle with his brother P.S. The applicant had told them that he did not have the money on him but that they had to go to his house. He had taken them to an abandoned house and, when they had arrived there, the applicant had pulled out a gun and demanded money from A.S. A.S.   had been walking towards the applicant when the applicant had pulled out the gun and had shot at A.S., who had fallen to the ground. P.S. had started to run away, and the applicant had shot twice in his direction but missed. Immediately the applicant’s brother D.L., who had heard the shots, arrived at the scene, where he had found A.S. lying on the ground, bleeding and asking for help. The ambulance had soon arrived and A.S. died on the way to a hospital. 9.     Later the same day, at 6 p.m., an identity parade was carried out in which, apart from the applicant, two other persons were lined up. The applicant wore a dark-coloured long-sleeved shirt whereas the two other persons in the identity parade wore white short-sleeved shirts. P.S., as a witness, was first invited to describe the person who had shot his brother. He first gave a detailed description of that person as being 1.70 m tall, slim, with a long, reddish face with stubble on his cheeks, brownish-yellow eyebrows, dirty blond hair, and a thin voice, well-spoken, without any dialect. During the identity parade the participants were asked to change places three times. Each time, P.S. identified the applicant as the perpetrator of the crime. The applicant signed the record of the identity parade without making any comment. 10.     The forensic report of 30 August 2005 drawn up by the Central Criminal Investigation Laboratory concluded that the two spent cartridge cases had been ejected from a firearm, namely a T.T. model 54 pistol. The gun was never found. 11.     The applicant was questioned again by the prosecutor on 14 and 22   September 2005. The record of the questioning states that the applicant was informed of his right to be assisted by a lawyer. He stated that he was informed of the charges and that he would give his statement without a lawyer and that he would decide later whether to have a lawyer. He signed the record without any comments. On 14 September 2005 the applicant explained that he had taken a pedal boat from Saranda to the sea and had thrown the gun into the sea in the direction of the Grand Hotel in Saranda. Indictment 12.     On 4 October 2005 a State-appointed lawyer, S.M., was assigned to represent the applicant on the grounds that the applicant had no means to pay for legal assistance of his own choosing. 13.     In the indictment of 5 October 2005, which was served on the applicant and his lawyer the same day, the applicant was charged with the murder of A.S. and P.S. in other specific circumstances under Article 79(dh) of the Criminal Code, and with illegal possession of firearms and ammunition under Article 278 § 2 of the Criminal Code. 14 .     On 12 October 2005 the prosecution submitted a request for the case to be listed for trial on the charges of the murder of A.S. and P.S. in other specific circumstances and illegal possession of firearms and ammunition, on the basis of the following facts. On 23 August 2005 the applicant had killed A.S. with a firearm in Shijan and at the same time attempted to kill A.S.’s brother P.S. Before that, the applicant and A.S. had agreed that A.S., who was a foreign exchange dealer, would bring ALL 2,000,000 from Saranda to Shijan to give to the applicant in exchange for EUR 8,000. A.S. had brought his brother P.S. with him and they had arrived in Shijan on a motorcycle. P.S. had been carrying the money, some of which had been obtained from V.K., another foreign exchange dealer in Saranda. The brothers had met the applicant on the side of a road and had gone together to a nearby vineyard. Once there, the applicant had pulled out a gun and had shot A.S. once. A.S. had fallen to the ground. The applicant had also shot twice in the direction of P.S., who had managed to run away. He had stopped a passing vehicle and had been driven to the police in Delvina. A.S. had been taken to the Saranda Civil Hospital, where he had died. It was also alleged that the applicant had contacted A.S. in Saranda on the day of the murder and had asked to exchange EUR 8,000 for Albanian leks, even though the applicant had not had that amount of money. The applicant had asked A.S. to bring the corresponding amount of Albanian currency to Shijan, claiming that he was afraid to carry a large sum of euros with him to Saranda. trial in the first-instance court 15.     During the proceedings in the first-instance court the applicant was represented by a State-appointed lawyer and gave evidence. The applicant stated that on 23 August 2003 he had met with A.S., who owed him ALL   300,000. A.S. had arrived at the meeting armed and threatened the applicant and a fight between them had ensued. The applicant had taken the gun from A.S. and shot him. The applicant also stated that he had not shot at A.S.’s brother P.S. 16.     P.S. also gave evidence and described the events at issue in the same way as the applicant in his statements given to the prosecution (see paragraph 8 above). P.S. said that A.S. had not had enough Albanian currency to meet the applicant’s request. He had asked V.K. for help and V.K. had given him ALL 700,000. P.S. also said that he himself had been carrying that money, which was to be exchanged for euros with the applicant. After the applicant had shot his brother, P.S. had run to the police station and reported the shooting. 17.     V.K. also gave evidence and confirmed that he had given A.S. the sum of ALL 700,000 so that he could exchange it for euros with the applicant. 18.     D.L., the applicant’s brother, also gave evidence and said that he had heard three or four shots and that when he had arrived at the scene he had found one person lying on the ground, bleeding and asking for help. 19.     In a judgment of 9 December 2005, the Saranda District Court found the applicant guilty as charged (of the murder of two or more persons in other specific circumstances and the attempted murder of one person under Article   79 (dh) and 22 of the Criminal Code and of illegal possession of weapons under Article 278(2) of the Criminal Code) and sentenced him to life imprisonment. The judgment had regard to the reports of the inspections of the crime scene, the autopsy reports, the ballistic report, the identity parade and photographs, the data found in the applicant’s mobile telephone (see   paragraph 6 above), the oral evidence given by P.S., D.L and V.K., the transcript of the recording of the conversation between the applicant and his brother N.L. (see paragraph 7 above), and the applicant’s confession to the prosecution. 20 .     As to the applicant’s confession during the investigation, the trial court held as follows: “During the investigation the defendant confessed to the charges [laid against him] by describing [the relevant] circumstances. However, at the trial he changed his version of events and alleged that the victims had owed him 300,000 old leks. The defendant stated that it had been the victim [A.S.] who had come armed and threatened him [with a gun] and that after that he, the defendant, had taken the victim’s weapon and shot him. The defendant’s evidence [given at the trial] cannot be accepted, because the defendant’s statement to the prosecution is corroborated by the intercepted [recording] and the evidence of the witness P.S., who described the events [at issue] and [whose description] completely matches the defendant’s statement [as given to the prosecution].” 21.     The applicant’s conviction referred to the facts as described in the prosecution’s request for the case to be listed for trial (see paragraph 14 above). It also stated that during his first encounter with A.S. on the morning of 23 August 2005 in Saranda the applicant had already formed an intention to take the money from him, and that with that intention the applicant had asked A.S. to exchange the amount of EUR 8,000 for Albanian currency, and asked him to bring the corresponding amount of leks to Shijan that afternoon. Proceedings on appeal 22.     On 17 December 2005 the applicant lodged an appeal against the first-instance judgment. In it he said that his lawyer had declined to assist him with it and that he was bringing the appeal in person so as to comply with the time-limit for lodging it. The applicant was then assigned another lawyer, who attended hearings and presented the applicant’s case. He presented the appeal at a hearing before the Gjirokastra Court of Appeal. He argued, inter alia , that the applicant’s right to be questioned in the presence of a lawyer chosen by him or appointed for him at the pre-trial stage of the proceedings had been violated and that the applicant had signed the record of his questioning by the prosecution under duress. 23.     At a hearing held before the Court of Appeal on 16 March 2006 the applicant’s lawyer stated that the applicant had not committed the offences he had been convicted of by the first-instance court, but that he could have committed another offence. At a hearing held on 5 April 2006 he asked for the charges against the applicant to be amended from the criminal offence under Article 79 (dh) to the offence under Article 76 of the Criminal Code. 24.     On 5 April 2006 the Gjirokastra Court of Appeal found the applicant guilty of attempted robbery causing death, of which A.S. was the victim, under Articles 141 and 22 of the Criminal Code, and of the attempted murder of P.S. with the intent to commit another crime, under Articles 77 and 22 of the Criminal Code, as well as of illegal possession of weapons, under Article 278 § 2 of the Criminal Code, and upheld his sentence. 25.     The judgment relied on the record of the inspection of the crime scene, data from the applicant’s mobile telephone as physical evidence, the medical report on the cause of A.S.’s death, the ballistic and forensic reports on the weapon and spent cartridge cases, the results of the secret surveillance measure, and the oral evidence of the witnesses P.S., D.L. and V.K. The judgment did not mention the identity parade at all, or the applicant’s confession to the prosecution. 26.     The Court of Appeal held that the first-instance court had wrongly applied the law to the established facts when it found that the applicant had murdered A.S. and that therefore under Article 428(b) of the Code of Criminal Procedure the legal characterisation of the offence had to be amended to attempted robbery of A.S. causing death (Articles 141 and 22 of the Criminal Code), and the attempted murder of P.S. (Articles 22 and 77 of the Criminal Code). The Court of Appeal explained that the motive of the applicant had been to rob A.S. of the Albanian currency he had been carrying on his person and that to that end the applicant had misled A.S. from the beginning, making him falsely believe that the applicant had had EUR 8,000 to exchange, whereas the applicant had not had that amount of money. Thus, the main intention of the applicant had been to take the money from A.S., an aim in which he had not succeeded because it was P.S. who had been carrying the money and who had managed to escape. As regards P.S., the Court of Appeal held that the defendant had not foreseen that A.S. would be accompanied by his brother and that the defendant had shot twice in the direction of P.S. with the intention of killing him, but had not succeeded. As regards the charge of illegal possession of firearms, the Court of Appeal accepted the characterisation of the first-instance court.   further Proceedings 27.     The applicant’s subsequent appeal to the Supreme Court was summarily dismissed. 28.     The applicant then lodged a constitutional complaint, which was dismissed on 19 May 2009. In so far as the recharacterisation of the charges was concerned, the relevant part of the Constitutional Court’s decision reads: “In the case under consideration, the appellate court changed the legal characterisation of the facts without changing [the facts themselves] and at the same time explained the meaning of the law that it needed to implement to ensure the consistent [application of] the law. In that connection, Article 425 § 3 of the Code of Criminal Procedure provides that an appellate court cannot increase the sentence imposed in a case where the defendant is the only appellant, but does not prohibit [an appellate court] from giving the facts a different legal characterisation, including one more serious than the one given by the district court.” RELEVANT DOMESTIC LAW CONSTITUTION 29.     The relevant provisions of the Albanian Constitution, as in force at the material time, read as follows: Article 31 “During criminal proceedings everyone has the right: (a) to be notified immediately and in detail of any charge against him and of his rights, and to be given the opportunity to notify his family or those close to him; (b) to have sufficient time and facilities to prepare his defence; (c) to have the assistance of a translator free of charge if he does not speak or understand the Albanian language; (ç) to defend himself in person or with the assistance of a defence lawyer chosen by him; to communicate freely and privately with the lawyer, and to be provided with a defence lawyer free of charge when he does not have sufficient means; ...” Criminal Code 30.     The relevant provisions of the Criminal Code, as in force at the material time, read as follows: Article 22 - Meaning of attempt “A criminal attempt is considered to have been committed when, even though the perpetrator takes direct action to commit the offence, those actions are interrupted and not completed owing to circumstances independent of his will.” Article 76 - Murder with intent “Murder committed with intent shall be punished by ten to twenty years’ imprisonment.” Article 77 - Murder with intent connected with another crime “The offence of murder which precedes, concurs with, conceals or follows another crime shall be punished by no less than twenty years’ imprisonment.” Article 79 - Murder committed in other specific circumstances “Murder committed: ... (d) on more than one occasion; (dh) of two or more persons; ... shall be punished by no less than twenty years’ imprisonment or by life sentence.” Article 141 - Robbery resulting in death “Robbery ... resulting in the death of a person shall be punishable by fifteen to twenty years’ imprisonment or by life sentence.” Article 278 - Illegal manufacturing and possession of military weapons and ammunition “... 2. Possession of weapons, bombs, mines, or explosive materials without the permission of the appropriate State authorities shall be punishable by a fine or up to seven years’ imprisonment.” CODE OF CRIMINAL PROCEDURE The Code of Criminal Procedure 31 .     The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, provided as follows: Article 49 §§ 1 and 2 “1. A defendant who has not chosen a lawyer or who has been left without one shall be assisted by a lawyer appointed by the authority conducting the proceedings, if he or she so requests. 2. When the defendant is under the age of eighteen or has a physical or mental disability that prevents him or her from exercising the right of defence, the assistance of a lawyer shall be mandatory.” Article 158 § 1 “1. The following shall not be compellable witnesses: (a) individuals who are in a close relationship of consanguinity with the defendant ...” Article 296 § 1 of the Code of Criminal Procedure made it mandatory to have a lawyer present during the questioning of a person under investigation by the judicial police. Under the same provision, when a lawyer could not be found or did not attend a hearing, the prosecutor was required to appoint a State-funded lawyer for the suspect. Article 309 “1. A defendant who has no defence lawyer shall be notified by the prosecutor that he or she may be assisted by a defence lawyer assigned by [the appropriate] authorities. 2. The defence lawyer chosen [by the defendant] or assigned by [the appropriate] authorities shall receive at least twenty-four hours’ prior notice of the questioning [of a defendant] and of [any] examination or confrontation. When delay may have negative consequences for the proceedings, notice shall be served on the defence lawyer urgently. 3. Records of any legal steps carried out by the prosecutor or judicial police which the defence lawyer has the right to attend shall be filed with the prosecutor’s office secretariat within three days and the defence lawyer shall have the right to consult them and to make copies.” Article 425 “... 3. When an appeal is lodged by defendant only, an appeal court shall not impose a more severe sentence, a more severe precautionary measure or an acquittal on less favourable grounds, than that in the appealed decision, nor shall it give a more severe legal qualification to the facts.” The amended Code of Criminal Procedure (which came into force on 1 August 2017) 32 .     Article 34/a § 2 of the amended Code of Criminal Procedure requires the authorities to provide a suspect with a written “letter of rights” containing information about his or her defence rights, including the right to remain silent and the right to a lawyer of the suspect’s own choosing or free legal assistance subject to certain conditions, before the first questioning takes place. Article 49 § 1 of the amended Code of Criminal Procedure provides: “1. The authority conducting the proceedings shall immediately assign a State-funded lawyer to a defendant who has not chosen a lawyer or has been left without one[,] when: ... (ç) he or she is accused of a criminal offence carrying a sentence of not less than fifteen years; ...” RELEVANT INTERNATIONAL LAW Council of Europe 33.     Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 34.     Furthermore, the Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec   (2006)2), adopted on 11 January 2006 at the 952 nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Legal advice 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.” united nations The International Covenant on Civil and Political Rights (“ICCPR”) 35.     Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial. The relevant parts of that provision read as follows: “Article 14 ... 3.     In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (b)     To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; ... (d)     To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...” 36.     The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications. 37.     The relevant part of the HRC General Comment No. 31, UN doc. CCPR/C/GC/32 (2007) reads as follows: “The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article   2, paragraph 3 of the Covenant.” 38.     The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see   Kelly v. Jamaica , 1991, 253/1987, § 5.10., and   Borisenko v. Hungary , 2002, 852/1999, § 7.5), including during police questioning (see   Gridin v. the Russian Federation ,   2000,   770/1997, § 8.5). However, in   Levinov v. Belarus   (2011, 1812/2008, §   8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14   §   3   (b) of the Covenant had not been infringed by the authorities. 39.     Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see, for example,   Saidova v. Tajikistan , 2004, 964/2001, and   Khoroshenko v. the Russian Federation , 2011, 1304/2004). european union law The right to be informed 40.     Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJ 2012 L 142, is founded upon the rights laid down in the Charter of Fundamental Rights of the European Union, and in particular Articles 6, 47 and 48 thereof, by building upon Articles 5 and 6 of the Convention as interpreted by this Court. In its preamble, the Directive explains that the right to information about procedural rights “which is inferred from the case-law” of this Court, should be explicitly established by the Directive. 41.     Article 1 of the Directive clarifies that the right to information has two aspects: information on procedural rights and information on the accusation. Pursuant to Article 2, the Directive applies from the time a person is made aware by the competent authorities that he is suspected or accused of having committed a criminal offence. Such a person must be provided promptly with information concerning at least the five procedural rights listed in Article 3, the relevant part of which reads as follows: “Article 3 Right to information about rights 1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a) the right of access to a lawyer; (b) any entitlement to free legal advice and the conditions for obtaining such advice; (c) the right to be informed of the accusation, in accordance with Article 6; (...) 2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.” The right of access to a lawyer 42.     Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013 L   294, lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant. In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 of the Convention, as interpreted by this Court. In its Recital 21, it explains, by reference to case-law of this Court, that where a person other than a suspect or accused person, such as a witness, becomes a suspect or accused person, that person should be protected against self-incrimination and has the right to remain silent. In such cases, questioning by law enforcement bodies should be suspended immediately and may only be continued if the person concerned has been made aware that he is a suspect or accused person and is able to fully exercise the rights provided for in the Directive. The relevant provisions of Directive read as follows: “Article 2 Scope 1. This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal. 2. This Directive applies to persons subject to European arrest warrant proceedings (requested persons) from the time of their arrest in the executing Member State in accordance with Article 10. 3. This Directive also applies, under the same conditions as provided for in paragraph 1, to persons other than suspects or accused persons who, in the course of questioning by the police or by another law enforcement authority, become suspects or accused persons. (...) Article 3 The right of access to a lawyer in criminal proceedings 1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph   3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3. The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; (c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.   4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9. 5. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty. 6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings. (...) Article 9 Waiver 1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10: (a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and (b) the waiver is given voluntarily and unequivocally. 2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned. 3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made. (...) Article 11 Legal aid This Directive is without prejudice to national law in relation to legal aid, which shall apply in accordance with the Charter and the ECHR. Article 12 Remedies 1. Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this Directive. 2. Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 ( a ), ( b ) and ( c ) of the convention 43.     The applicant complained that the criminal proceedings against him had been unfair because of the recharacterisation of the offence by the appellate court and because of the restriction of his right of access to a lawyer during the pre-trial stage and the subsequent use by the trial court of evidence he had given in the absence of a lawyer in convicting him and the manner in which the identity parade had been carried out. He relied on Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, which, in so far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 3.     Everyone charged with a criminal offence has the following minimum rights: (a)     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” Admissibility Compliance with the six-month time-limit (a)    The parties’ arguments 44.     The Government argued that the application had been submitted outside the six-month time-limit. In that connection they asserted that the final domestic decision, given by the Constitutional Court on 19 May 2009, had been served on the applicant on 1 June 2009 whereas the applicant had submitted his completed application to the Court on 25 February 2010. They relied on the Court’s reasoning in the case of Kemevauko v. the Netherlands ((dec.), no. 65938/09, 1 June 2010), citing the following paragraphs: “22. In this context the Court emphasises that in principle it is to be provided with the original of the application form, and also of the authority form if the applicant is represented in the Strasbourg proceedings. Transmissions by fax of these documents are, without the originals of these documents being provided to the Court, insufficient to constitute a complete or valid application. Reference is made in this respect to paragraphs 1 and 4‑5 of the Practice Direction on the Institution of Proceedings, quoted above. The last-mentioned paragraph states specifically that it is the signed, original application which is to be despatched by post within eight weeks from the date of the Registry’s letter requesting the appli