CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 avril 2010

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The aggressors were armed with two Kalashnikovs and a knife. Having taken the passengers’ money and jewellery, they left the scene without causing casualties.   Some hours after the event, the police searched houses near the scene of the crime, including that of Mr Lika in which he was having lunch with his father, his brother, and his friend, Mr Laska. The police searched the house in the absence of the applicants’ lawyer and found in the pocket of Mr Laska’s jacket two white T-shirts and a blue cloth made into balaclavas. In addition they found some grenades near the house, but failed to find the stolen goods or the weapons that had been in the possession of the aggressors.   The applicants, Mr Lika’s brother and father were then taken to a police station and questioned. Later the same day, the police officers in charge of the investigation conducted an identification of persons and items by the victims of the robbery. The applicants, wearing blue and white home-made balaclavas, and two other persons, wearing black balaclavas, were put in a row in the same room in order to be identified. Although the police changed the position of the persons in the room, the victims consistently identified the persons wearing blue and white balaclavas as the aggressors, that is to say the applicants.   The applicants’ lawyer was not present either during the questioning or the identification.   In April 2001 the applicants were charged with armed robbery and illegal possession of arms which they contested during a hearing in November 2001 before the district court. While the court noticed certain irregularities during the investigation stage, such as the absence of a lawyer both during the questioning and the identification, it found the applicants guilty of armed robbery and of illegal possession of weapons on the basis of eyewitness statements. They were sentenced to thirteen years’ imprisonment in a high-security prison. Their appeals before the higher domestic courts were dismissed including their requests for the courts to summon the police officers as witnesses and to produce at the trial the items presented as the balaclavas used during the robbery which the applicants insisted were simple T-shirts.   During the November 2001 hearing, the applicants complained that they had been ill-treated by the police in an attempt to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used.   In May 2002 the district court rejected their complaint as submitted outside the limitations period.     Complaints, procedure and composition of the Court   Relying in particular on Articles 3 and 6 §1 of the Convention, the applicants complained of being ill-treated by the police during questioning and that the proceedings against them were unfair.   The application was lodged with the European Court of Human Rights on 8   March   2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Nicolas Bratza (the United Kingdom), President , Lech Garlicki (Poland), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Nebojša Vučinić (Montenegro), judges ,   and Fatoş Aracı, Deputy Section Registrar .     Decision of the Court   Ill-treatment by the police (Article 3)   The Court found that the applicants had failed to exhaust domestic remedies given that they had not appealed against the district court’s decision rejecting their complaint about ill ‑ treatment as time-barred. Likewise, the applicants had not raised that complaint, at least in substance, in their appeals before the higher domestic courts. Consequently their complaints under this Article were found inadmissible.   Fair trial (Article 6 § 1)   1) Admissibility   The Government argued that this complaint should be declared inadmissible as the second applicant had not complained about it before the Constitutional Court. Mr Lika claimed in turn that there had not been a reasonable prospect of success before the Constitutional Court given that Mr Laska’s appeal to it had been dismissed. Having had regard to the fate of Mr   Laska’s appeal to the Constitutional Court, the Court considered that any appeal before it by Mr Lika, which would have relied on the same grounds as raised by Mr Laska, would have had virtually no reasonable prospects of success. Consequently, the application was found admissible in this respect.   The Government also submitted that that the applicants had not sought review of their final domestic judgment. The Court noted that the review of a final court judgment constituted an extraordinary judicial review, which the applicants were not required to exhaust.   2) Merits   The Court observed that the applicants had been found guilty essentially on the strength of eyewitnesses’ submissions obtained during the identification parade. As the applicants had been made to wear blue and white balaclavas, similar to those which had worn the robbers on the minibus and in stark contrast to the black balaclavas worn by the other persons in the line, the identification parade had amounted to an open invitation to witnesses to pick both applicants as the perpetrators of the crime.   The Court noted that even though the district court had accepted that there had been irregularities at the investigation stage, in convicting the applicants it had relied on their positive identification by eyewitnesses during the identification parade. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of ensuing proceedings could cure the defects which had occurred during the criminal investigation. There had been no independent oversight of the fairness of the procedure nor opportunity for the applicants to protest against the blatant irregularities. The Court found that the manifest disregard of the rights of the defence at this stage seriously undermined the fairness of the subsequent criminal trial.   The applicants should have been able to argue that the balaclavas they had been required to wear at the identification parade, and which had constituted the decisive evidence for their conviction, had been entirely different from those worn by the robbers. However, as that had not been allowed, they had been denied an opportunity at the trial to redress the irregularities which had occurred at the identification parade.   Consequently, the proceedings in question had been unfair, in violation of Article 6 § 1.   Just satisfaction (Article 41)   The Court held that Albania had to pay to each applicant   4,800   euros (EUR) for non ‑ pecuniary damage.   Execution of the judgment (Article 46)   The Court held that a retrial or the reopening of the case, if requested by the applicants, represented an appropriate way of redressing the violation. However, Albania’s criminal legal system did not provide for the possibility of re-examining cases, including reopening of domestic proceedings, in the event of this Court’s finding of a serious violation of an applicant’s right to a fair trial. Notwithstanding that, the Court held that it was up to the Albanian authorities to introduce a new remedy that would enable the applicants to have the situation repaired or to remove any obstacles in their domestic legal system that might prevent the applicants’ situation from being adequately redressed. Albania, like all the other Council of Europe States parties to the European Convention on Human Rights, was under a duty to organise its judicial system in such a way that its courts could meet the requirements of the Convention. This principle also applied to the reopening of proceedings and the re-examination of the applicants’ case.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.