CASE OF HAXHIA v. ALBANIA
(Applications nos. 29861/03)
JUDGMENT
STRASBOURG
8 October 2013
This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.
Generate a structured brief — facts, issues, held, reasoning, and significance — for this case in seconds. Or browse the verbatim judgment via the source links below.
This judgment will become final in the circumstances set out in Article 44 � 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
��������� Ineta Ziemele, President, ��������� David Th�r Bj�rgvinsson, ��������� George Nicolaou , ��������� Zdravka Kalaydjieva, ��������� Vincent A. De Gaetano, ��������� Paul Mahoney, judges, ��������� Markelian Koca, ad hoc judge , and Fran�oise Elens-Passos, Section Registrar,
�Another person who participated in the commission of the criminal offence is the accused Ismet Haxhia.
A number of actions, which set off... with escorting the team from Bajram Curri to Tirana and, further on, to Hotel Murati where the team was put up in the afternoon of 11 September 1998, his presence at the crime scene ... together with his Fiat Tipo car ..., as well as his presence at the N.C�s family, 40 days after his death, create the conviction for the court that he acted as an accomplice, an abettor, in the commission of the crime.
Auto-extracted from BAILII. Full structured brief in progress — the source links below give you the verbatim judgment in the meantime.
BAILII · Verbatim mirror
In the case of Haxhia v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
��������� Ineta Ziemele, President,
��������� David Th�r Bj�rgvinsson,
��������� George Nicolaou,
��������� Zdravka Kalaydjieva,
��������� Vincent A. De Gaetano,
��������� Paul Mahoney, judges,
��������� Markelian Koca, ad hoc judge,
and Fran�oise Elens-Passos, Section Registrar,
Having deliberated in private on 17 September 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Country background
B. The assassination of a Member of Parliament
C. The criminal investigation into the assassination
D. The applicant�s arrest
E. The trial court�s proceedings
1. The applicant�s requests
2. Witnesses� testimonies
(b) Witness M.
(c) Witness A.L
(d) Witness J.M
(e) Witness P.G
(f) Witness �.
(g) Witness Z.N
(i) The applicant�s testimony
3. The parties� final submissions
4. The District Court�s judgment of 29 April 2002
�Another person who participated in the commission of the criminal offence is the accused Ismet Haxhia.
A number of actions, which set off... with escorting the team from Bajram Curri to Tirana and, further on, to Hotel Murati where the team was put up in the afternoon of 11 September 1998, his presence at the crime scene ... together with his Fiat Tipo car ..., as well as his presence at the N.C�s family, 40 days after his death, create the conviction for the court that he acted as an accomplice, an abettor, in the commission of the crime.
The above is proved by the evidence of witness A.L who was present at those events, the evidence of K.G who stated that Ismet Haxhia ... had not taken leave to go to Tirana on 11 and 12 September.
His presence at the above events is also proved by the testimony of co-accused J.M.
The totality of these actions, as elements of actus reus of the criminal offence, lead the court to conclude that the accused Ismet Haxhia is an accomplice, an abettor, to the commission of the crime.
The witnesses called by the accused did not overturn or question his presence at those events which concerned the preparation, commission and post-event developments.�
�The prosecutor�s office reclassified the murder under Article 79 (c) connecting it to the fact that, during a parliamentary session, the murdered MP had accused F.H of killing [a police officer].
On that basis, [the prosecutor] determined that the motive for the MP�s murder had been his position as an MP. However, the evidence obtained at trial, the circumstances and the events leading up to the MP�s assassination proved that revenge had been an aggravating factor in the commission of the murder (v�rtetojn� se vrasja �sht� kryer p�r motivet � dob�ta t� hakmarrjes).
�As outlined by the prosecutor, in the present case there exists simple collaboration and not a scheme of [defined] roles, duties, objectives and plans. In this collaboration, the aider and abettor ... Ismet Haxhia contributed by different means but always for the sole purpose of killing Azem Hajdari.
Unless proved that there existed a detailed plan between the co-defendants and other people who are no longer alive or that there existed an oral agreement whereby everyone�s role was defined for the accomplishment of the final goal... the accused Ismet Haxhia cannot and should not be held liable for the excesses of the perpetrator. Ismet Haxhia, not being linked to [the existence of a] defined scheme and not being the perpetrator of the premeditated murder, should be held responsible only for [aiding and abetting] the premeditated murder of Azem Hajdari.�
5. Proceedings to challenge the District Court�s lack of impartiality
F. The appellate courts� proceedings
1. Proceedings before the Court of Appeal
The applicant further complained that the Court of Appeal�s decision of 29 October 2001 was taken in his absence and in breach of the principle of adversarial proceedings (see paragraph 74 above). His appeal against that decision was still pending before the Supreme Court. According to the applicant, the trial court did not give sufficient weight to witnesses� testimonies that indicated that he was having dinner at a nearby restaurant when the MP was murdered (see paragraph 64 above). Nor had eye-witnesses P.G, Z.N and S.L declared that they had seen him at the crime scene or that they had seen a police car parked nearby. Contrary to the trial court�s interpretation of his actions, there was no discernible criminal element in the fact that, two days prior to the murder, he had travelled with the people who later assassinated the MP; nor in the fact that he participated in N.C�s funeral forty days after the murder; nor in the fact that he had known F.H�s brother fifteen years previously. The trial court�s decision lacked reasons as regards his role as an abettor (ndihm�s) as provided for by Article 26 of the CC.
2. Proceedings before the Supreme Court
3. Proceedings before the Constitutional Court
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Criminal Code
Article 78 - Premeditated murder
�1. Premeditated murder is liable to punishment of between fifteen and twenty-five years� imprisonment.
2. Premeditated murder committed on account of interest, revenge or blood feud is liable to punishment of between twenty five years and life imprisonment.�
Article 79: Intentional murder on account of the victim�s particular position
�Intentional murder committed against: ...
(c) a member of parliament, judge, prosecutor, lawyer, police officer, military officer or civil servant, in the discharge of his duties or on account of it, provided that the victim�s position is obvious or known;
shall be liable to punishment of between twenty years and life imprisonment.�
B. Code of Criminal Procedure (�CCP�)
C. European Convention on Mutual Assistance in Criminal Matters (�the Mutual Assistance Convention�)
D. Recommendation 1386 (1998) of the Parliamentary Assembly of the Council of Europe
�5. The Assembly strongly condemns the murder of Democratic Party parliamentarian Azem Hajdari and his bodyguard. The authorities should prove to the international community that they are making every effort to bring those responsible to justice as soon as possible and to allow for independent international investigation.
6. The Assembly further strongly condemns the political violence from both sides following these murders. Attacks on the democratic institutions of the state cannot be justified on any political grounds. Any attempt to take power by force is clearly unacceptable. (...)�.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 �� 1 and 2 OF THE CONVENTION
�1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.�
II. ALLEGED VIOLATION OF ARTICLE 6 �� 1 and 3 OF THE CONVENTION
�1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...�
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;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.�
A. Admissibility
B. Merits
1. The parties� submissions
(a) The applicant
(b) The Government
2. The Court�s assessment
(a) Notification of the charge
(b) Conduct of the trial proceedings
(i) Provision of adequate time
(ii) Attendance of the trial hearings
(iii) Examination of witnesses
(iv) Representation by a lawyer
(c) Conduct of the appeal proceedings
(i) Reclassification of the offence
(ii) Failure of the Supreme Court to examine the applicant�s interlocutory appeal of 9 November 2001 as regards the District Court�s lack of impartiality
(iii) Provision of adequate reasons
(d) Conclusion
III. ALLEGED VIOLATION OF ARTICLE 6 � 2 OF THE CONVENTION
�2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.�
IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
�1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.�
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints under Article 6 �� 1 and 3 (a) to (d) as regards the alleged procedural unfairness of the proceedings admissible and the remainder of the application inadmissible;
2. Holds by six votes to one that there has been no violation of Article 6 �� 1 and 3 (a) to (d) of the Convention.
Done in English, and notified in writing on 8 October 2013, pursuant to Rule 77 �� 2 and 3 of the Rules of Court.
Fran�oise Elens-Passos���������������������������������������������������������� Ineta
Ziemele
������ Registrar����������������������������������������������������������������������������� President
In accordance with Article 45 � 2 of the Convention and Rule 74 � 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.
I.Z.
F.E.P.
PARTLY DISSENTING OPINION OF JUDGE DE GAETANO
1. I regret that in this case I cannot share the majority�s view that there has been no violation of Article 6 � 1.
2. The case against the applicant rested entirely on circumstantial evidence. It is trite knowledge that circumstantial evidence does not lie but may deceive. It is also generally acknowledged that circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities. For that reason it needs to be not only narrowly construed but also minutely examined. Moreover, in the instant case, the applicant stood charged not as a principal but as an abettor or accomplice. The crucial point, therefore, was whether it could be shown that the circumstantial evidence pointed conclusively to the existence of a common design - the idem placitum consensus - between the applicant and the principal or principals.
3. Although this Court�s case law in respect of Article 6 has repeatedly affirmed that it is not a court of fourth instance for the re-examination of the facts of the case, it has also held that although a decision may not be arbitrary in the sense of a total lack of reasons, it may nonetheless lack sufficient reasons in light of the particular circumstances of the case, and therefore be in breach of Article 6 � 1. Thus, where a legal concept lacks precision, which involves an assessment of questions of facts, a court may be required to give more detailed reasons especially where the finding is of a decisive nature (see, among others, Georgiadis v. Greece no. 21522/93, 29 May 1997, in particular � 43). Likewise, a court, although giving reasons, may in effect avoid the crux of the issue (Kuznetsov and Others v. Russia no. 184/02, 11 January 2007, � 84); or the domestic court may ignore a �specific, pertinent and important� point (Pronina v. Ukraine no. 63566/00, 18 July 2006), even if reasons are given in respect of other issues.
4. I find nothing in the majority decision which indicates, or at least suggests, that sufficient reasons were given by the District Court or by the Court of Appeal to back up their finding of a common design between the applicant and the principal or principals (the Supreme Court dismissed the grievance relating to the lack of adequate reasons as not being within its competence, see � 91). On the contrary, it would appear that this crucial issue of the common design was not specifically addressed by these two courts. This, on its own, should have sufficed for a finding of a violation of Article 6 � 1.
5. But there is more. The applicant�s case was a high profile one against a backdrop of political turmoil. Common sense would suggest that courts dealing with judicial proceedings in such circumstances would exercise great caution, if anything so as to leave no lurking doubt as to the fairness of the said proceedings. In the instant case, on the contrary, the applicant�s appeal to the Supreme Court from the Court of Appeal�s decision of 29 October 2001 (on the District Court�s alleged lack of impartiality) was never examined by the said Supreme Court through what appears to have been an administrative error (see �� 75-77, 87, 121 and 124). The applicant�s appeal before the Court of Appeal appears to have been disposed of with exceptional alacrity (see in particular �� 79-80). The appeal to the Constitutional Court was declared inadmissible with no reasons given. The lurking doubt remains.
4. For all these reasons there was, in my view, a violation of Article 6 � 1.
Multiple official and mirror sources — pick whichever loads cleanly on your network.
Common Room
0 comments · About the Common Room →
No comments yet — start the discussion.
Voted-best comments help future students and feed Caselaw's AI study tools.