/ r ) SECRETARIAT GENERAL y* f * i * * y SECRETARIAT OF THE COMMITTEE OF MINISTERS VI 'S' SECRETARIAT DU COMITE DES MINISTRES COUNCIL CONSEIL OF EUROPE DE L'EUROPE Committee of Ministers Comité des Ministres Contact: Abel Campos Tel: 03 88 41 26 48
Date: 12/04/2013 DH-DD(2013)392
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.
Meeting: 1172DH meeting(4-6 June2013)
Item reference: Communication from the applicants’ representative with appendices(06/02/13) in the Caka group of cases against Albania (Application No.44023/02) (The Supreme Court's decision has been translated and submitted to the Secretariat on20/08/12 by the authorities. The other2 documents (the Court of Appeal decision and the appeal of the applicant's lawyer) have been translated by the translation service of CoE)(64 pages).
Information made available under Rule9.1 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion : 1172réunion DH(4-6 juin 2013)
Référence du point : Communication de l’avocat des requérants avec annexes (06/02/13)dans le groupe d’affaires Caka contre Albanie (Requête n°44023/02) (anglais uniquement)
Informations mises à disposition en vertu de la Règle9.1 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
DGI
0 6 FEV. 2013
SERVICE DE L'EXECUTION DES ARRETS DE LACEDH
R E P U B LIC OF ALBANIA TIRANA BAR CHAMBER Baftjar RUSI - Attorney-at-LAW License Nr.575. Nr.NUIS K-31507003-U Blvd. “Gjergj Fishta", Kulla I e Pallateve të Shoqcrisë “Gora” Kati i Il-tc, Tiranë E-mail: baftjarusi @ hotmail.com Tiranë on 6 -th February 2013
EUROPEAN COURT OF HUMAN RIGHTS
APPELLANT: Lulzim CAKA, son of Hasan and Xhevrie, born 11.03.1970 and resident in Berat, is currently serving a sentence in the IEVP penitentiary Durrës, with Albanian citizenship, reviewing procedures of judgment by Supreme Court in Tirana, represented in court by Atorney Baftjar Russi, with address Boulevard “Gjergj Fishta", Kulla I e Pallateve të Shoqerisë “Gora” Kati i II- të, Tiranë
SUBJECT: Please note the extremely serious violations by Court of Appeals Vlorë, by Decision No. 15, dated 19.12.2012, which upheld the decision of the District Court Fier, No. 175, dated 11.05.2000, a decision that conflicts with the Decision of the Strasbourg Court dated 08.12.2009 and the Decision of the High Court No. 75, dated 07.03.2012.
To the attention of: Mr. Dean Spielmann
The President of the European Court of Human Rights
Strasbourg DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
DGI-DGI-Human Rightsand Rule of Law
Departament of the right execution of judgments of the Europe Court of Human Rights
Councile of Europe
F-67075 Strasbour Cedex
Fax: 33(0)388412793
Dear Mr. President of the Court,
We are obliged to inform you that after the final decision given by Strasbourg Court on 08.12.2009, we as Defense Team on July 2009, requested reviewing by the Supreme Court regarding the case "Caka "and this court after nearly three years, with its Decision No.75, dated 07.03.2012, accepted the request for Review and turned the case over to reopen by the Court of Appeal in Vlorë, according to the tasks left by the Strasbourg Court.
The Court of Appeal in serious violation of the Constitution of the Republic of Albania, the European Convention for the "Protection of Human Rights and Fundamental Freedoms" and the law, with Decision No. 15, dated 19.12.2012, upheld the Criminal Decision No.175, dated 11.05.2000, Judicial District Court Fier, in review of this Case, as it reopened after the acceptance of the application by the ECHR with Decision dated 08.12.2009, on the Appeal No.44023/02 "Caka against Albania" and the Review Decision given by the Supreme Court No.75, dated 07.03.2012.
Criminal College of Court of Appeal Vlorë, in the first hearing dated 20.09.2012, was asked: DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
"Revocation or replacement of ‘prison arrest’ with a slight extent", because we were not at the same conditions when decision was made for the arrest measures and with two substantial evidence and namely the Final Decision of the Strasbourg Court dated 08.12.2009 and the Decision of the High Court dated 07.03.2012; and the Criminal College of Court of Appeal Vlorë rejected the request arbitrarily and contrary to the spirit of the Convention, giving the right of rehearsal of this claim during trial.
Appeals Court decision showed a lack of responsibility, even more, in conflict with the tasks assigned by Strasbourg Court and the Supreme Court, it upheld the decision of the District Court Fier, thus it came out openly against these decisions are binding for Court of Appeal under the European Constitution and Convention.
The Defense of Mr. Caka in final conclusions, dated 18.12.2012, in response to the tasks left by the Strasbourg Court and the Supreme Court and based on the state of the acts that are in the file, sought the annulment of Judicial District Court Fier Decision No. 175, dated 11.05.2000 and Dismissal of the case on two counts because prosecution should not proceed, while the Criminal College of Court of Appeal Vlorë, in flagrant violation of the Constitution, European Convention and the Law and in total disregard for the decision of Strasbourg Court and the Supreme Court, upheld same state of guilt and conviction.
It is an unprecedented case for these judges, ignoring the conclusions and tasks assigned by Strasbourg Court in a decision that was made due to revision dated 08.12.2009, tasks which were strictly Revised by the Supreme Court Decision for Review acceptance No.75, dated 07.03.2012 and precisely when there was not taken in consideration a retrial by this judicial body for any evidence in favor of guilt, with a very unprofessional language, in the highest level of irresponsibility, College of Court of Appeal Vlorë rejects the conclusions of the Strasbourg Court and tasks of High Court and does nothing other than just recycles the decision of the District Court Fier, dated 11.05.2000.
In view of the serious violations issued by the Court of Appeal Vlorë, regarding the case “Caka”, his Defense team on January 22-nd 2013 organized a Press Conference publicly denouncing the unconstitutional decision and clearly unjust, as a case that cannot be ignored and leave out without responsibility on DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
behalf of justice and law, totally violating the Constitution, Europian Convention and the Law, which discloses the negative performance of the justice system and the Albanian government in relation to the obstructive and bad will to our country's integration reforms in the European Community where we all aspire to be.
Dear Mr. President.
So, basically the Case "Caka against Albania" is left not in vain by correspondence we have had with the Strasbourg Court (after the revision), that the Albanian government (as a High Contracting Party) shall report to the Committee of Ministers in March 2013, for progress and completion of procedures related to the execution and fulfillment of the rights granted to the applicant by the decision of the Strasbourg Court dated 08.12.2009.
As his defense team, we are absolutely convinced that Lulzim Caka is innocent of the two charges and the sentence imposed in the Decision of the Court of Appeals dated 19.12.2012, which upheld the decision of the District Court Fier, No. 175, dated 11.05.2000, so, even though we addressed the High Court with an appeal to annul the two decisions and dismiss the case, as the prosecution should not proceed, we publicly seek the structures of the Council of Europe that this issue be placed on the ‘control and decision making’ agenda of the European Union, since it is in our government’s nature and justice policy in our country that no judge is punished when sentencing the innocents and when decisions are openly unjust like in this case.
It is time for political opinion, statesmen and control structures and decision making of Justice to realize that the time has passed once and for all of the medieval and anachronistic justice, that instead of following the Constitution, European Convention and the Law as a guide, acts counter- flow.
It is time that the High Council of Justice and our state policymakers should orient themselves towards the judiciary system in criminal cases, not only when someone is released from prison, but also as residents and citizens of Albania, also by Albanian justice system are punished without evidence, unjustly and in violation of Law.
Please use the Your authority Mr. President and that of Council of Europe structures, otherwise justice and judicial system in our country will not achieve the DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
improvement and progress required on the path to the integration and involvement in the great European family, which is the dream of all Albanians, as the decision in the aforementioned case in our country’s justice in civil and criminal matters will always keep the doors of European Community shut.
We make available also:
1. Decision No.75, dated 07.03.2012, of the High Court of the Republic of Albania:
2. Decision of Court of Appeal Vlorë, No. 15, dated 19.12.2012;
3. Recourse applied by the Defence of Mr. Caka against the Court of Appeal decision, No. 15, dated 19.12.2012;
Thank you.
With deepest of gratitude and consideration.
Legal defense of the defendant Lulzim (
Baftjar RUSI Attorney-at-LAW
Qazini GJONAJ Attorney-at-
aiaio v o » DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
No.52105-01388-0(1-201 (I Base Register No.00-2012-7511 of Decision (75)
Decision In the Name of the Republic
( riminal Chamber of the High Court, comprising:
Gani Di/dari Chairman Arjana Fullani Member Edmon Islami Member Aleksandcr Muskaj Member Shkelz.cn Selimi Member
On the hearing ot 07.03.2012 examined the criminal ease regarding:
KËRKUES: l.ULZIM CAKA. convicted, represented by attorney at the trial, by AV. Baftjar Rusi.
OBJECT:
1 • Review of the final criminal judgments No. 175. dated 11.05.2000 of the Court of First Instance of Pier and sending the case to the competent court for retrial. 2. Suspension of enforcement of criminal decision No. 175. dated 11.05.2000 of the Court of First Instance of lier, ordering the release of prisoners Lulz.im Caka Dunes from I EVP untilthe end of the trial, pursuant to Article 454 of the Penal Procedure Code. Legal basis:Articles 440. 450 points "a" and 451 and following of the Penal Procedure Code.
THE CRIMINAL CHAMBER OF THE HIGH COURT
After hearing the relation of judge Gani Di/dari; prosecutor I luscyin Keta, who urged acceptance o f the request for reconsideration, the applicant's representative, attorney Baftjar Rusi. who requested admission of the request, and discussing the case as a whole.
NOTED
That the request for reconsideration filed by petitioner Lul/im Caka results based on law, and as such will he considered by the Criminal Chamber of the Supreme Court into admitting it. establishing the quashing of the decision of Criminal Chamber of the High Court (counseling room) no. 498, dated 12.10.2001 and the decision no.147, dated 20.10.2000 ol the Court of Appeal of Vlora sending the case for retrial on that court, with another panel. From examination of the acts that are in the criminal record of the applicant l.ulxim Caka results that: DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Fier District Court, with decision No. 175. dated I 1.05.2000. has decided: lo declare the defendant guilty Lulzim Caka for committing the crime of murder, under Article 76 of the Criminal Code and sentenced to 20 years in prison. Declare the defendant Lulzim Caka guilty for committing the crime of murder in in qualified circumstances, conducted in cooperation, remained in attempt, under Article 76 c 22 and 25 ol the ( riminai C ode and sentenced to 25 years of imprisonment. Declare the defendant Lulzim Caka guilty for committing the crime of "unlawful carriage of combat weapons", which is provided by Article 278/2 of the Criminal Code and sentenced to 2 years o f imprisonment. Under Article 55 ol the Penal Code condemns the defendant Lulzim Caka on a simile sentence o f 25 years. Vlora Court of Appeals with Decision No. 174. dated 20.10.2000. has decided to uphold the decision No. 175 dated I 1.05.2000 of Fier District Court. Ovei iceourse made by the applicant, the decision of the court of appeal and first instance, the Supreme Court, with its decision no.468. dated 12.10.2001 (consultation room) has decided not to accept the recourse. Further the applicant has addressed the Constitutional Court, seeking: "Abrogation on unconstitutional grounds of the three decisions cited above and the return o f the case at first instance for reconsideration, with another panel." The Constitutional Court, in its decision no.200, dated 18.11.2003. in a three-judge panel ruled: "Not to transfer to the plenary session, by declaring the matter outside its jurisdiction...".
I he petitioner, considering depleted the domestic remedies, addressed the European ( ourt ol Human Rights, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, asking for admission of his application for a violation of Article 6 /1 and 6/3 ol the Convention. The issue is recorded in this court, and after passim- in plenary session, the European Court of Human Rights (Fourth Section), dated 08 Dcccnihcr 2009. among other things decided: "I. Declares the complaints concerning Article 6 of the Convention admissible and the remainder of the application as inadmissible..."
4. Believes there was a violation of Article 6/1 in conjunction with Article 6/3 (d) of the ( (invention as regards the failure to provide the appearance of witnesses OQ and S. in the trial o f the applicant.
5. Believes there was a violation ol Article 6/1 in conjunction with Article 6/3 (d) of the Convention as regards the failure of the panel to consider the evidence of four witnesses given in favor of the applicant before the District Court of Berat;
6. Believes there was a violation ol Article 6/1 in conjunction with Article 6/3 (d) of the ( (invention as regards the failure lo provide the appearance of witnesses BC and I), in the trial o f the applicant: DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
The applicant and his defense have not appealed this decision to the Grand Chamber, nor did the Albanian Government within 3 months from the date when the decision was communicated from the European Court of Human Rights, the decision therefore turns out to have becom e linal. Upon learning this fact relating to the final decision, dated 16.07.20It) the petitioner, through his counsel, addressed the Supreme Court a petition for review of Decision No. I 75. dated I 1.05.2000 .... attaching to this request for review, the final decision of the European Court of Human Rights and other accompanying files, seeking quashing of the Supreme Court decisions in all parts and suspension of execution of this decision. The Criminal Chamber of the Supreme Court concludes that the request for review must be admitted, as is consistent with the requirements of Penal Procedure Code and the European Convention for the Protection of I luman Rights, with practice and jurisprudence of the Constitutional Court and European Court. The reasons set forth in the request made by the defendant (petitioner) Lulzim Caka have resulted based on law and as such will be accepted.
On these grounds are present terms and conditions set forth in section 450 of the Code of Criminal Procedure. This evaluation is achieved not only by considering the logic of law and chance, in the case of procedure, the reference to the analogy of the provisions in the Code of Civil Procedure (Code of Civil Procedure on Article 494, paragraph "e". provides a right o f review final civil judgment, in case of receiving an application to the case by the European Court of Human Rights), but also based on the jurisprudence of the EC’HR and to the guidance given in section I of recommendation Rec (2004) 6 of the Committee of Ministers "On the improvement o f internal means of appeal", which emphasizes that member states, taking into account examples of good practice: "To ensure, through constant review in light of the jurisprudence of the court that domestic remedies exist for anyone who claims a complaint arguing a violation of the Convention and that these remedies are effective, in that they can lead in making a decision on the merits of the complaint and to adequately redress every found violation. " The correction of the law by the Criminal Panel finds the reason and legal basis at the same time, the obligation of compliance with Articles I 8 and 42 of the Constitution, and Articles 6/1 and 13 of the European Convention "On Protection of Human Rights and fundamental Freedoms. " European and domestic jurisprudence, in civil and criminal cases, governing principles of judicial review of final decisions, is connected, in its interpretation, with the principles of the power of final decision and respect of the principle of legal stability. Violation of the rights of the applicant, due to circumstances speci lieally provided for in section 450 of the Code of Criminal Procedure and. in general, the practice of the EC 11R. is accepted as the cause for review and circumstances for declaration of a irregular legal process from the Court of Human Rights, not only in the case of the applicant, but also on other issues pertaining to a clear jurisprudence. “Special circumstances of the case may reveal the actual ways in which a review is used impairs the substance of a fair trial. On particular, the Court must assess whether, in a particular case, the power to initiate and carry out a review exercised by the authorities to achieve, to the maximum extent possible, a fair balance between individual interests and the DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
need lo ensure the effectiveness of the justice system (see Bujnita v. Moldova, no.36492/02. * 2 1 . 16 January 2007).” "The powers to review decisions of higher courts should he exercised to correct judicial errors and miscarriages of justice Review should not he treated as an appeal in disguise, and the mere possibility of the existence of two different views about the subject is not a ground for reconsideration. Circumvention of this principle is justified only when made necessary by the circumstances of a substantial and compelling nature " (“Rosea v. Moldova", no.6267/02, * 24, 22 March 2005) In order that the request for review of a final decision he accepted there must be one of the reasons provided in section 450 of the Code of Criminal Procedure. The Supreme Court initially ruled in the case Xheraj rejecting the application for review because il lacked the conditions laid down in Article 450/1/a of the Penal Procedure Code, by not considering the ECIIR decisions as binding and who meet the conditions provided in the above- mentioned article. The Constitutional Court, in decision no.20. dated 01.06.201 I. argued that: "...... the interpretation of the Supreme Court of the decisions of the ECI IR are not equivalent to the Albanian court decisions, contrary to article 10 of the Code of Criminal Procedure, which stipulates that relations with foreign authorities in criminal matters are governed by international agreements accepted by the Albanian slate, the principles and generally accepted norms of international law, as well as the provisions of this Code. The Court considers that in terms of the institute of review, it can not be claimed that the decisions referred to in Article 450/1/a of the Penal Procedure Code, are just those given by the Courts of the Republic of Albania, since Article 10 of this Code explicitly requires courts to apply the provisions of international agreements to which Albania is part of. For treatment of basic human rights, EC HR in our legal system has an exclusive competence. This power is received from our domestic legal system, for the purposes of section 122 of the Constitution, but also of Article 17/2, which bring as obligation the direct application of EC HR decisions. Especially with regard to decisions of the EC HR for criminal proceedings, for the legislative is necessary to lake measures to harmonize national legislation with the provisions of the ECIIR. I fjhere is no harmonization, then, if we are in eases of legislative vacuum nr when legal provisions are in con II ici with the provisions of the (Tan enl ioiijjir jn.U-s pf each level directly apply the ECIIR decisions in accordance with Anielc 122 of the Q nislilutjpn and Articles 19 and 46 of the ECI IR. Article 122 of the Consiimimn siipn|;,(cs explicitly that the provisions of international treaties prevail over national laws that are not com patib le with the former. It should be noted that we have adhered to this pan-European body on 13.07.1995, therefore before the Constitution was approved by referendum plebiscite dated 22.1 1.1998 and luckily the provisions the Convention were taken into consideration and the content was merged to the content and framework of our Constitution, by adjusting norms of the Convention for the Constitution. This fact puts our state before the duty lo respect and fully implement the international commitments to the structures of the Council of Europe. Implementation of the ECIIR decision should he made in the most efficient manner possible and without sacrificing an important element o f the right to a fair hearing, precisely unreasonable length of proceedings. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Given that the EC HR has found a violation ol' the right to a fair hearing of the applicant, due to the exclusive jurisdiction of the EC HR in this respect, this fact can not he questioned. As above, in reference to the jurisprudence of the ECIIR. the Constitutional Court regarding the place that hold and the duty for enforcement of ECI IR decisions when the latter has found violations of the right to a fair trial, we are before the undisputed fact are that the application of the prisoners for judicial review will be accepted. This is reinforced even by the ECIIR. which in this ease has reaffirmed that, when an applicant has been convicted, despite a possible violation of his rights as guaranteed by Article 6 of the Convention, he should, as much as possible, be placed in a position which would have been if the requirements of that provision would not have been taken into account and that the most appropriate form of compensation, in principle, would be hearing "de novo" or restarting the proceedings, if requested. The Criminal Chamber appreciates and stops on the European Court of Human Rights decision dated 08.12.2009. regarding the tasks that Vlora Court of Appeal must resolve. Referring to the content and disposition of the Decision of the European Court of Human Rights dated 08.12.2009. which constitute a new element of evidence and reason for review, the appellate court for review should he aware that: In paragraph 20 of the Decision of the European Court of Human Rights dated 08.12.2009 is stipulated: "At the hearings on 23 December 1998 and 6 January 1999. four witnesses who were traveling the same road and saw the appellant driving the motorcycle, they testilied that appellant had no weapons with him." The same conclusion reached the European Court of Human Rights in the enacting clause o f the decision in question when it says in paragraph five o f this enacting clause that: "5. Holds that there has been a violation of Article (VI in conjunction with Article 6/3 (d) of the Convention on the inability of the court of lust instance to consider the testimony of four witnesses given in favor of the complainant before the District Court of Herat ". So this task, the European Court of Human Rights, has not left it as an evasive taks, but it is binding and. in this context, the Criminal Chamber of the Supreme Court let the duty to the Vlora Court of Appeals, in a retrial, that: It should Consider the testimonies of citizens Namik Cela. Ardian Dogani. Gramoz Dogani and Euftar Caka who have testified that they were traveling on the day of the event on 18.03.1998 by bus in the same direction of the road where was the applicant and his killed friend Xh.Cela and shortly before the event the bus was overtaken by the engine and testilied before the Court of first instance of Berat, that they did not have any weapons, neither the deceased Xhevahir Cela nor the applicant Lulzim Caka. Furthermore, the four witnesses were not requested by the defense of the applicant, but have been sought and taken as evidence for the prosecution, in the list o f witnesses requested by the Prosecution itself. In the reasoning of the decision of European Court of Human Rights, this Court takes an analysis on the conditions and cause for the transfer of the ease by the High Court at the end of judicial review of the ease in the Court of First Instance of Berat (at the request of the prosecutor, for security reasons), based on Article 94 and 97 of the Code o f Penal Procedure, which examines how the First instance Court of Fier proceeded on evidence obtained by the First instance Court of Berat and directly states that it was the duty of this court not only to give the necessary decision on the evidence, but it should have valued and taken them for granted. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Here's how this court stated in its decision, on the transferring of the ease in paragraph 2 1. 22 and 23 of the decision: "On 15 February 1999 the prosecutor lodged an appeal with the Supreme Court for transfer of litigation from Berat District Court against the applicant. He argued that because the state of insecurity in Berat the witnesses were reluctant to testify in court, lie also mentioned the existence of different forms of pressure and even threats to the life of the prosecutor regarding the outcome of litigation. 22. On 5 March 1999 the Supreme Court allowed the transfer of litigation from Berat District Court to Fier District Court, in accordance with Article 94 of the Code of Criminal Procedure. 23. Under Article 97/3 of the Code of Penal Procedure. Fier District Court was asked to take a decision regarding the validity of acts performed by the District Court of Berat. Such a decision is not included in the ease lile. The Government has submitted that the ease lile and the actions taken by the District Court of Berat are considered valid on the basis of a certificate, dated 9 March 1999 issued by the Secretary of Fier District Court. " Based on this argument and reasoning, based on acts that have the government itself deposited as a party to the European Court of Human Rights, all actions and the evidence taken by the Berat ( ourt ol First Instance should have been regarded and rated as manted, as valid. All the section of the reasoning of the decision of the European Court of Human Rights not only question the violations and regularity of the criminal process at lu st instance, but the very process of proving the charges, which are referred in paragraph 37 and 38 of the decision, which says: "37. In connection with the charge of the murder of police officers remained in attempt, the Fier District Court has based its decision on the testimony of four police officers K., L., M. and N. given at the hearings on 23 February and 6 March 2000 (see 29 and 3 I above), and two witness statements given during the criminal investigation. The court took into account the report of the crime scene investigation, the complainant's arrest report and ballistics reports. 3,8. In this regard, the court also found the appellant guilty of illegal possession of firearms on the basis of ballistics report, adding that the cartridges found at the scene were fired from guns found near the accused. However, the decision did not mentioned whether the weapons were in actual possession of the complainant. " Referring to the report of the hearing dated 2 1.02.2000, page 153 and following of the criminal tile, it results that the Fier Court of First Instance based the guilt on the questioning of witnesses in the police ranks (as expressed in the European Court of Human Rights decision in paragraph 37. just quoted), and precisely the employees of the District Police- Station Berat questioned this date were llir Ngresi (former Chief of the Police Station Berat, see page 154 and following of the criminal llle). or another witness Gentian Musabelliu. former Criminal Police Inspector of Berat Police Station (see page 156 and following of the tile), but that session was also asked Arben Frashcri, former Chief of Criminal Police of the District Police Station Berat (see page 159 and following the criminal lile) and Abdulla Alia, former superintendent of order, see page I6I and following of the lile ..). where these last two witnesses who do not provide data on the guilt associated with the applicant).
On 06/03/2000 the witness Julian Kuçi, a former officer of the Commissariat of Berat was questioned, see page 187 and following o f criminal file, where witnesses llir. Gentian and
<> DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Julian have been part of the operation and the roadblock where the incident occurred on IS March 1998 , while witness Abdulla Alia refuses to have been at the scene. On the other hand witness A.Frashëri, according to the report, had been a roadblock in before hand, where the latter's testimony was disputed by the prosecutor himself, and after hearing the rebuttal made by the prosecutor and the reading of statements at the hearing was requested the confrontation and re-questioning, both by the applicant and his defense, a claim that is repeated in several other sessions by the applicant and his defense, as is alleged that they were not true to his statements before the proceeding body. I he European Court of Human Rights in the analysis of this episode, seeing the four prosecution witnesses, only two of them attest to the fact of criminal culpability on the event date 18.03.1998, both ol them in leading positions ol police and operational part at the checkpoint o f the event, considers their statements with reservations about the truthfulness of the accusation and proo I ability of the offense provided in the articles of the penal Code 79/ç- 22 and 25. where the Iricnd ol the applicant Xh.Cela was killed and the applicant remained injured with 4 shells. On the other hand the court of first instance has not taken into consideration and not reviewed, in unity, other evidence of the prosecution who have testilied for this episode. Regarding this fact the European Court of Human Rights in paragraph 29. 30 and 3 1 ol the decision is expressed as follows: "In the hearing of 23 February 2000 the appellant set I. as his defense counsel together with H. Three police officers K., L. and M. testified at the trial. Based on the discrepancy ol the testimony ol M. made during the investigation stage and the trial testimony, the prosecutor sought permission lo challenge the evidence in accordance with Article 362 of the Penal Procedure Code to read the statement of the witness made during the criminal investigations. While the complainant and the lawyer I. had initially not asked M.. they demanded that he be asked after reading his testimony. I he district court rejected their request as they had initially waived their right to ask the witness. On I March 2000 the applicant's lawyer asked the court to summon M. for questioning, lie repeated the request at the hearing on 6 March. On the same date the court rejected the request as unfounded. However it did allow the defense the request to call four other police officers N„ O.. Q. and S. On 15 and 2 1 March the applicant's counsel repeated his request to call and question M. On March 2 1 the court denied the request as unfounded. It ruled that M. attended a hearing in which the defendant and his counsel had the opportunity to ask questions to him. On the same date, the court heard the police officer N. The applicant was represented by his lawyer I. Witnesses O.. Q. and S. did not appear and were never questioned in court, despite repeated calls by the court and notice sent to the relevant authorities, such as the Ministry of Justice, Ministry of Interior and General Directorate of Police. "
From the above, the European the Court of Human Rights puts in doubt the cause of failure ol the examination ol witnesses and former police officers on duty at the time, and piecisely Sali ( allmori, Arbcn Mesiti and Sokol Duri, the court of appeal during the retrial has the duty to question them and take the evidence. Even for these witnesses, the European Court of Human Rights, regarding this as a violation of law and a lack of fair legal process with this observation, leaves the duty in paragraph 4 ol the enactment ol the decision in question when it says: DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
"4. I lolds thaï there has been a violation of Article (VI in conjunction with Article 6/3 (cl) ol the Convention on the inability to guarantee the appearance of witnesses O. Q. and S. at the applicant's trial ". The European Court of Human Rights analyzes even the notarial declaration, formulated and submitted as part of the applicants acts of the former Chairman of the Judge Panel of the Berat District Court. Bashkim Hoxha. Pact that the court of appeals should consider in unity with the other evidence, when expressing in paragraph 46 o f the decision: "46. On 6 January 2003 the applicant lodged with the court a statement certified by Bl l. the judge who had presided over the panel in Berat District Court in the judicial process According to Bl l. the proceedings were transferred to the Pier District Court, lo the detriment of the complainant, at a time when the District Court was close to the close of examination of the issue and seemed to conclude that there was insufficient evidence against him. Moreover. B H. defended the view that the Pier District Court had accepted the statements of witnesses taken at the police station over the statements made during trial before the District Court of Berat, lie also argued that the Pier District Court had not taken into account ballistics report presented during the trial before the District Court of Berat from which was proved that the automatic weapons allegedly used by the applicant, in Pact belonged to the Police force of Berat. Furthermore, he stated that the applicant's counsel had withdrawn from his defense at trial near the Pier District Court because of threats to their lives and their families. " The European Court of Human Rights puts into question the fact of the availability of weapons lo applicant and his killed friend, which arises not only from the witnesses Namik Cela. Gramoz Dogani. etc... But also from the ballistics report of the weapons attributed to the applicant and his killed Iriend, that shows that the weapons are in inventory of the Berat police forces, from which must be referred once again to paragraph 38 ol the decision of the European Court of Human Rights, which states: "38. In this regard, the court also found the applicant guilty of illegal possession of firearms on the basis of ballistics report, adding that the cartridges found at the scene were fired from guns found near the accused. However, the decision did not mention whether the weapons were in actual possession of the complainant ", flic Criminal Chamber entrusts the Court of Appeals with the duty to evaluate the views of the European Court of Human Rights, in particular the section of the evaluation of the decision, in which concluded that there was violation of Article (VI and 6 / 3 (d). regarding the allegations and proo I ability of the charges relating lo Articles 79/y-22 and 25 of the Criminal Code and this position is deduced in paragraphs I 15 and I 16 of the decision, which say: "I 15. Moreover, the court finds that the applicant did not renounce his right to question those witnesses. On 7 February 2000 he opposed the reading of their statements and asked for their appearance before the District Court of Fier. The Court again reiterates its findings in paragraph 108 above. The Court is not convinced that the authorities were diligent in their efforts to bring witnesses before the court of first instance. Failure to appear ol these witnesses whose statements were crucial to the conviction of the appellant, prevented the applicant from getting their questions or from receiving them in the previous question. This inaction was not rectified nor by the appellate court, which was authorized to examine matters o f fact and law, nor by the High Court. I 16. Considering the above factors, the court therefore concludes that in this respect there has been a violation of Article 6 ÿ I in conjunction with Article 6 ÿ 3 (cl) of the Convention ". DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Referring to page 131 of the protocol of the criminal lile. it comes out that in the session on 07.02.2000 the statements of former Berat Police officers and more precisely. Qa/.im Vojka and Bashkim Kuci, statements which are challenged by the applicant and his defense and were asked to come to testify before the court, where as results there were violations were found by the European Court of Human Rights, and the Court of Appeals should take into consideration during the review of the ease. The appellate court must take into account the unifying decision ol- the Supreme ( ourt no. 05. dated 07.02.2001, which among other guides: "The judicial process that takes place through the review, is not simply a process of revision ( in the strict sense of the word) of a previous process, but the court in its conclusion, as administers and evaluates the facts, circumstances and evidence presented bv the parties again together and in harmony with the evidence, circumstances and facts administered and evaluated at the end of the previous judgment, might reach different conclusions, even com pletely opposite to those reached in the first trial and may provide a decision which is completely opposite. From a guilty verdict that may have been given at the end of the lirst tiial. the eouit at the conclusion of the trial ol the review could come up with innocence (when the reviewing request was made by the convicted party) and vice versa (when the demand for review is made by the prosecutor). " While on paragraph IK) of the decision the European Court of Human Rights, regarding it always in the scope of the irregularities of the process and procedural guarantees ol the applicant and the vagueness of the evidence connected to the event of 18.03.1998. expresses itself as follows: "I 10. The Court notes that four witnesses testified in favor of the applicant near the Berat District Court (see paragraph 20 above). Since all acts of Berat District Court were transferred in a justified order to the Fier District Court, the applicant may, at his own will, not require their appearance. Fier District Court excluded their evidence when it ruled, without giving any reason on this. The Government did not submit arguments justifying such an exception. While the court can not speculate about the importance of factual elements, the Court of First Instance did not consider, without justification, all the evidence of witnesses in favor ol the complainant and the evidence certainly was relevant to the issue and therefore the decision ". The European Court of Human Rights, seeing in detail the charges and the sentence given to the applicant regarding Article 76 of the Penal Code for murder of citizen P. Em ini. found irregularities in the process and for this we are detaching a passage which is mandatory to have into account in considering this issue on appeal, which addresses this fact in paragraph "ii" and I 12.1 13 and I 14 of the decision which says: 112. The Court notes that the decision of Fier District Court condemning the applicant for killing P. was based entirely on the testimony of A. and witness statements of B, C. and D. given during the criminal investigation. This reasoning was supported on appeal. 11.3. I he Court notes that the Albanian criminal proceedings, the appellate court has jurisdiction to address not only issues of law but also issues of fact about the entirety of the ease. The Court of Appeals is authorized to review new evidence and additional materials submitted by the parties, as it deems necessary. As a result of the review, the appellate court may reject the appeal and uphold the decision, amend or repeal the decision and the decision to terminate proceedings, or to rescind the decision and submit the ease for retrial. The High Court deals with matters of law raised in the applicant's appeal. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
I 14. lu this regard, the court noted that A. was not an eye witness, nor present at the crime scene. Her testimony was based on witness statements of B, C. and I), which were made during the criminal investigation. Neither the appellant nor his attorney could face with such key witnesses or ask questions or comment on those statements, because at that time there were no charges filed against him (see paragraph 7 above). " From materials of the criminal lile turns out that the victim's P.Fmini sister, the witness Zenepe Emini (Amiti) on 2/21/2000 were asked before the court (Page 63 of the criminal lile), who stated that she was not present at the scene and that she did not have any aqueintance with the defendant, nor she nor her brother, and on the other hand she said that her brother was killed by the applicant, fact that she learned from J. Nurçe (person who had died at the time when she gave the testimony), for this criminal fact in the retrial of the ease, the court of appeals should consider the findings of the European Court of Human Rights in paragraph 7 and 28 o f the decision which states: "7. P. was killed on 21 July 1997. At an unspecified date in 1997 against the applicant was launched a criminal investigations. During these investigations the victim's sister. A.. although she had not been present at the scene said that the appellant had killed her brother. She was basing her testimony on the explanations of the three witnesses, B„ C. and D„ who result to have been questioned on an unspecified date. " 28. On 21 February 2000 the court heard the testimony of A., which staled that the appellant was the murderer of her brother P Further, on the request the applicant, the Fier District Court issued several calls for the appearance of witnesses B, C. and D. However the witnesses never appeared in court. " On page 61 and continuing of the criminal lile, results to be read the statements of the witnesses of the prosecution Todi Tiranishti, Athen Sadiku and Agron Kiptiu. relating to the charge of article 76 of the Criminal Code where P.Emini was killed, and none of these eyewitnesses have been questioned in court. Regarding this fact, the Criminal Chamber considers that at retrial, the appeals court should call and take the testimony of citizens Todi Tiranishti, A then Sadiku and Agron Kiptiu, a task which results from the disposition of point 6 of the decision o f European Court of Human Rights, which concluded that: "6. Holds that there has been a violation of Article 6/1 in conjunction with Article 6/3 (d) of the Convention on the inability to guarantee the appearance at the applicant's trial of the witness B.. C. and D. '. Section 454 of the Criminal Procedure Code states that: "I. The Criminal Chamber of the High Court and the court scheduled for retrial of the ease may order suspension of the decision. 2. The decision is final. " On interpretation of this definition of the legislators, the availability associated with the suspension ol judgment is at the discretion of Criminal Chamber of the High Court, which after examining the request o f the convicted for review of the decision and accepted it. ruling ease by case, the quashing of the decision and sending the ease for retrial by another panel, at the court of first instance or the court of appeals, as is the case under consideration, which is sent to the Vlora Court of Appeal, may order the suspension of execution of the decision. In the above conditions regarding the application for suspension of judgment, ordering the release of the applicant Lulzim Caka until completion of the trial, the Criminal Chamber of the High Court considers that this request should not be accepted. The applicant was charged and convicted for criminal offenses with high social risk. In contrast as claimed
in DH-00(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
in the application, the time o f detention up to this point is not considered due to exercise- suspension of judgment. Pursuant to Article 454. paragraph I of the Penal Procedure Code, in the alternative, the ( riminal ( hamber ol the High Court has not ordered the suspension of execution of the decision and has left this option at the discretion of the criminal court of lirst instance or of appeal, which in the present ease under review is at the discretion of the Court of Appeal of Vlora. which is scheduled for a retrial. So the applicant may address the Court o f Appeals in Vlora. where during the retrial could raise circumstances and conditions that must be considered by this court. In the interpretation of these provisions, in accordance with other provisions of Title IV, I ule VIII of the Penal Procedure Code, entitled (Review "(Articles 449-461 of the Penal Procedure ( ode), the ( riminal Chamber ol the High Court considers that in the ease under consideration the where the decision of the High Court and Court of Appeal of Vlora were overruled . the ease is to he sent to the same court for retrial, the legal status of the applicant Lulzim Caka, in the retrial stage, will be the status of a convict and therefore will be held in prison in execution o f court decisions. The Criminal Chamber reaches this assessment because it evaluates that the quashing of decisions of the courts based on a request for retrial does not bring same consequences with the quashing of decisions and sending the acts for réévaluation made in the eases where the issue is examined based on appeal, or recourse made by the convicted or the prosecution. In the ease of quashing of the decision, the request for review, brings quashing resulting in the opening the road only for review, to take new evidence, to repair an irregular process of law. etc... And does not change the legal position the applicant, so lie w ill have the status of a convict and therefore will continue lo be detained in the execution of judicial decisions, being under the condition ol limitation of personal freedom until the end of the retrial, or when the retrial continues longer than the period of detention, to meet this deadline. Criminal Chamber considers that in this conclusion leads point 2 of Article 456 of the Code of Penal Procedure (judgment after retrial), which stales: "When the court accepts a petition of review the decision is overruled" which means that even during the retrial, after the High Court annulled the decision, again, there is a decision that will be quashed if a request for review is accepted, otherwise, if the request is not accepted under point "3" of this provision, the court will decide "to reject the request for review ", ie without expressing at all about the court decision, which is assumed to remain in force. If. in reviewing conditions, deterioration of rulings by the Criminal Chamber of the I ligh Court would be equivalent to the quashing of the decisions in ordinary eases of trial on the basis o f review for appeal or recourse, then the special trials (review), as is the ease under consideration, would be "non sense" which is explicitly stated in the provisions of Article 4.->6. paragraph 2 of the Code o f Penal Procedure when granting a request for reconsideration, the court decides to quash a decision, what means (non sense) that quashes a decision quashed earlier by the High Court. In this spirit of interpretation should he understood even point "I" of Section 454 of Penal Procedure Code (suspension o f execution), stating: "The Criminal Chamber of the High Court and the court appointed for iceonsidcration the the ease may order the suspension of judgment, what means that the execution of the previous decision despite a decision of the Criminal Chamber of the High Court for its an n u lm en t. for effect o f execution it is back in force. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
FOR THESE REASONS
The Criminal Chamber of the High Court, pursuant to Articles 450. paragraph "I". 453. point 3 and 4 4 1 / d of the Penal Procedure Code.
DECIDED To accept the request to review, deciding the quashing of decision 110.498. dated 12.10.2001 of the Criminal Chamber of the High Court and decision 174 dated 20.10.2000 of the Court of Appeals of Vlora and sending the ease for retrial lo the Vlora Court of Appeal, with another panel.
Tirana on 07.03.2012
MINORITY OPINION
I judge Gani Di/dari. agreeing to accept the request for reconsideration of the defendant Lulzim ( aka. I think that this issue had to be quashed and returned for reconsideration in the Court of First Instance of Fier and not to the Court of Appeal of Vlora for these reasons:
First, the applicant himself in the object of the request for review had sought the quashing of decision No. 175. dated I 1.05.2000 of the Court of First Instance of Fier. I his attribute is explicitly defined the content of paragraph 3 of Article 453 the Penal Procedure Code, that commands: "When the request is accepted, the Criminal Chamber decides the quashing of the decision and sending the ease for retrial by another panel in the first instance court which rendered the judgment or the court of appeal when a claim is made against its decision. The decision is final. "
In this case the legislator has expressed clearly and without equivocation, in a t.xalive manner, that the return is made in the juridical level where the application for retrial is made for and since the applicant had designated this in the object of his application specifically
"Review of the final decision no. 175. dated I 1.05.2000 of the Court of First Instance ot Fier, quashing it in all parts and sending the ease to the competent court for retrial."
In these circumstances, the court, moreover the Criminal Chamber of the High Court may not decide lo change this laxative designation of a legal provision only disrupting the panel decision o f the Court of Appeals of Vlora and turn the ease for retrial near this court. I emphasize that the solution given in this ease by the Criminal Chamber would be right in the ease when the applicant had as an object ol the application only the reexamination of the Vlora Court of Appeals decision (article 453. point 3 of the Criminal Procedure Code).
-Not to annul the decision of the court of first instance, that not only is required in order to express this tact, but even when the defect is created based on this level of the trial. DH-D0(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
resulting in that the request lor review is accepted in part, sinee a guilty verdict remains in force. I think in contrast to other eases of ordinary judgment (Article 44I/I ol" the Penal Procedure Code), in this particular kind of judgment, the appellate court can not resolve the illegality of the judgment of the court of first instance, and this has been the cause that the legislator has determined laxatively (Article 453g of the Penal Procedure Code section 3). that the decision of the court of first instance should be quashed and the case should be sent for retrial on this level o f the trial. So in other words, since the applicant had sought review of the decision of the court of first instance, therefore, the Criminal Chamber of the High Court had the legal obligation to quash all decisions, including Decision No. 175, dated I 1.05.2000 of this court. In the above conditions when the Court of First Instance of Fier decision was not quashed. I am partially against decision 75. dated 07.03.20! 2 of the Criminal Chamber of the Supreme Court.
Gani Di/dari DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 Submitted on 14.1.2013 REPUBLIC OF ALBANIA [SIS"“14SeM J CHAMBER OF LAWYERS, TIRANA Lawyer Baftjar RUSI Lawyer Qazini GJONAJ Bearers of Licenses No.575 and 800 Taxpayer Identification Number K-31507003- Address: Bulevardi "Gjergj Fishta" Kulla 1 e Pallateve te Shoqerise "Gora" Kati Il-te E-mail: [email protected] http ://www.Rusi-lawfirm.com Fier, on 14.01.2013
CRIMINAL RECOURSE
FROM: Lulzim CAKA, son of Hasan and Xhevrie, bom and resident in Berat, of date of birth 11. 03. 1970, currently serving his sentence at the Durrës Penitentiary Institution, an adult with legal capacity to act, defended at trial by the Lawyers Qazim Gjonaj and Baftjar Rusi.
Subject: Quashing of the decision of the Vlora Court of Appeals No. 15 dated 19. 12. 2012 and of the District Court of Fier Decision No. 175 dated 11. 05. 2000 and settling the case without remanding it for a review, vacation of trial against the convicted person, in compliance with Paragraph «c»o f Article 441 of the Code of Criminal Procedure.
LEGAL BASIS: Article 407 and the following, and Article 432 and the following of the Code of Criminal Procedure.
BEFORE: SUPREME COURT TIRANA
1. The Court of Appeals reviewed the case after it was reopened following the admissibility of application made by ECHR by decision dated 08.12.2009 regarding the Application No. 44023/02 "Caka v. Albania" and the Reviewing Decision No. 75 dated 07. 03. 2012, taken by the Supreme Court.
[Signed & Sealed] [Republic o f Albania] [Chamber o f Lawyers, Tirana] [Lawyer Baftjar RUSI] [License No. 575] [Address: Bulevardi "Gjergj Fishta" Kulla 1 e Pallateve te Shoqerise "Gora" Kati 11-t.e] DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323
2. Following the acts of the case file, it has resulted that the person defended by us, Lulzim Caka, by virtue of the criminal judgment No. 175 dated 11. 05. 2000 of the District Court of Fier, is sentenced to 25 years imprisonment for the charges of attempted «murder due to special qualities of the victim», acting in collusion and in accordance with Articles 79/c, 22, 25 of the Criminal Code, and sentenced to 20 years imprisonment for the criminal offence of «murder with intent» as provided for in Article 76 of the Criminal Code. In merging the sentences, pursuant to Article 55 o f fZze CWe o f OrZ/MZzzaZ Procedure, Zze A cofzcZwsZveZy se?zfe?zce(Z to a sZzzgZe fZzzaZ sßMfßMce ter/M o f 25 (Twentyfive) years Z/Mprtson/Ment, co/M/MencZngfro/M tZze dby qfZzZs arrest, dbtezZ 7& 05. 7PP&
3. The convicted person L. Caka appealed this decision to the Court of Appeal. The Vlora Court of Appeal examined that decision and by virtue of decision No. 147 dated 20. 10. 2010 it decided «to uphold the decision of Fier Court No. 175 dated 77.05. 2000».
4. Regarding the recourse filed by the applicant within the legal time limit against the decision of the Vlora Court of Appeal, the Supreme Court, by its judgment No. 498 dated 12.10.2001, decided in a Selective Panel not to allow recourse to a judicial hearing.
5. Without having exhausted all legal remedies and within the legal time limit, the applicant referred to the Constitutional Court, claiming:
"The cancellation as anti-constitutional of the three above-mentioned decisions and returning iZzg case to IZzg first ZnsZancg court for tZzg /%#%)ose o f AeZzzg trZezZ Ay onotZzer /xzzzeZ. " and the Constitutional Court, by its decision No.200 dated 18.11.2003, decided not to present it in a plenary session, declaring the case as not falling within its jurisdiction...in a Selective Panel of 3 members..
6. The applicant, having deemed as exhausted the domestic legal remedies, referred to the European Court of Human Rights for legal protection of the fundamental human rights, under Article 34 of the Convention for Protection of Human Rights and Fundamental Freedoms, requesting from the European Court of Human Rights to admit the application for a breach of Articles 6/1 and 6/3 of the Convention and after having been passed in a Plenary Session, the European Court of Human Rights (Fourth Section), on 08December 2009 UNANIMOUSLY decided as follows: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323
"1. Declares the complaints concerning Article 6 of the Convention admissible... 4. Holds that there has been a breach of Article 6 & 1 in conjunction with Article 6 & 3 (d) of the Convention as regards the failure to produce witnesses ()., Q. and S. in the judiciary process of the applicant; 5. Holds that there has been a breach of Article 6 & 1 in conjunction with Article 6 & 3 (d) of the Convention as regards the failure of the panel to take into consideration the evidence offour witnesses given in the favour of the applicant at the Berat District Court; 6. Holds that there has been a breach of Article 6 & 1 in conjunction with Article 6 & 3 (d) of the Convention as regards the failure to produce witnesses B., C. and D. in the judiciary process of the applicant;
7. According to case law and jurisprudence of the European Court of Human Rights, in the case in question a plenary session was held without the participation of the parties (namely, the applicant and the Government of Albania), a type of trial deemed as «extra- procedural», which is rarely applied in law and ECHR jurisprudence and only in cases when the case is indisputable and the application filed proves that there is a manifest breach, unlike the ordinary cases when the parties are summoned to the hearing (the applicant and the government) and are asked to adopt their positions.
8.-It must be stressed that the government as a respondent in the trial, assessing the arguments and intolerable legal reasoning of the decision making jury of the European Court of Human Rights in the case «Caka v. Albania» and the decision of 08.12.2009, having found no grounds of objection, did not exercise the right of complaint to the Grand Chamber within a period of 3 months (in compliance with Articles 43 and 44/2 of the Convention), leaving the decision to become final in the form it currently is in the official version of 08.03.2010.
9 .- Immediately after learning about the final decision and after the official transmission of the decision on 16.07.2010, the convicted person and his defence lawyers referred to the Supreme Court with a request for review of the final Decision No. 175 dated 11.05.2000.... requesting the quashing of this decision by the Supreme Court in all of its parts.
10.-Based upon this request for review and ECHR decision dated 08.12.2009, the case was subject to a fresh examination by the Supreme Court, wherefrom, by its decision No. 75 dated 07.03.2012, it ruled:
To accept the request for review, establishing the quashing of the Supreme Court Decision No.498 dated 12.10.2001 and of decision of Vlora Court of Appeal No.147 dated 20.10.2000, and remanding the case for retrial to Vlora Court of Appeal, with another panel » DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323
11.-Based thereupon, the case was remanded for review to the Vlora Court of Appeal, which by its decision No. 15 dated 19.01.2013, ruled:
«To uphold the Decision of the Fier District Court No.l 75 dated 11.05.2000»
12.-By this decision the Court of Appeal showed a clear lack of responsibility. Further, contrary to the duties entrusted by ECHR and the Supreme Court, it upheld the first instance court decision, thus openly challenging these decisions. Simultaneously, it makes both Supreme Court decisions prejudiced in settling the case without remanding it for review, quashing both decisions and cancellation of a trial against the convicted person, in compliance with Article 441, Paragraph «c» of the Code of Criminal Procedure.
13.- By the end and termination of the judicial investigation on 11. 12. 2012, the prosecution representative gave the relevant conclusions. Unfortunately, he lacked the courage to drop the charges, disregarding the examined evidence and duties set out both by the Decision of ECHR and the Supreme Court Decision on the person defended by us, L. Caka. Finally, the prosecutor claimed:
«Upholding the decision of the Fier First Instance Court No. 175 dated 11.05.2000 »
14.-On 18.12.2012, in response to the duties entrusted by the Supreme Court and based on the status of acts available in the fde, the defense lawyers of the defendant finally claimed the quashing of the decision of the Fier District Court No. 175 dated 11.05.2000 and vacation of the case for both charges and the criminal prosecution should not continue...
15.-It is an unprecedented case for the Criminal College of the Vlora Court of Appeal, which, disregarding the conclusions and duties entrusted by the European Court of Human Rights in the decision that had become a ground for review of 08.12.2009, duties being strictly reformulated by the Supreme Court in the decision on admissibility for review No. 75 dated 07.03.2012, and exactly in the circumstances when no evidence were reviewed by that panel to be in favour of guilt, with pathetic and unprofessional language and gross irresponsibility, rejected ECHR conclusions and the duties of the Supreme Court, and did nothing but reused the decision of the First Instance Court of Fier of the year 2000. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323
16.-The Decision of the Court of Appeal, subject to this recourse, constitutes the most unique case in the history of justice during these 22 years of transition. This history has made Albania part of the Council of Europe and member of the European Court, since 1996. When the «Caka case» became an integral part of the doctrine, jurisprudence and law of the European Community and when the Supreme Court justly transmits ECHR conclusions in the form of duties, the Criminal College of Vlora Court of Appeal, consisted of three judges, without hesitation disregarded both of the said courts. Nonetheless, these are not optional duties and they are binding on the system of ordinary jurisdiction of the judiciary, as provided by both the constitutional law and the criminal-procedural law.
17.-This case cannot be disregarded and cannot exclude from responsibility the decision makers in the name of justice and law, who seriously violate the Constitution and Law. If there is a precedent and negative example to be the first by its nature and kind, at the same time the control structures and punishment bodies of the judicial system must be the first ones to react to this case, so that Albania and our state shall not be punished by this type of malicious and impeding will in the integration reforms of Albania in the European community we aim to accede to, in which we are still under a testing phase.
18.- In the framework of the case «Caka v. Albania», the correspondence we have had even after the initiation of review, purposely established that the Albanian state (the government as a high contracting party) shall report to the Committee of Ministers in March 2013 about the progress and completion of procedures regarding the execution and implementation of rights granted to the applicant by ECHR decision dated 08.12.2009.
19.- Due to the nature of charge, its substantiation, guilt and sentence term imposed in breach of procedures and without any evidence, «Caka» case on one hand has become part of the constitutionalisation of the convention law and on the other hand of the Europeanisation of the national constitutional law in the field of protection of human rights and fundamental freedoms.
20.-As defense lawyers, we are fully convinced that Lulzim Caka is innocent in respect of the two charges and the sentence imposed by decision of the Court of Appeal on 19.12.2012, upholding the decision of Fier Court No.175 dated 11.05.2000. Therefore, we request from the Supreme Court to bring the recourse to a judicial hearing, thereby quashing both decisions, subject to recourse, and vacate the case as the criminal prosecution cannot continue due to the following reasons: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323
I-Circumstances of case, subject to trial:
A. -For the sake o f truth, we are referring to the circumstances o f the incident regarding the //nsf eptsWe, Wzere T. Oa&a was wowWgfZ aW A/s yrigW XAgvaA/r (7e/a was 7Mwr(Zgrg(Z a» 18th March 1998 under a secret police checkpoint organised in a fighting position in PoAraf, wAere fAe /vosecwfor rafsW fAe cAarges q / atte/Mpte^ 21.-On 18.03.1998, at about 14:30 hrs, the person defended by us, L. Caka had been travelling in Samatice-Pobrat road section together with his deceased friend, Xhevahir Çela (murdered on the same day by the police). The defendant and his friend were not armed and they were travelling on a Honda motorcycle. All of a sudden, under the secret police checkpoint with more than 100 police officers near Pobrat village, he was subject to the automatic fire of police weapons, without any warning or signs by the police to stop and without even seeing that there was a police checkpoint... 22.-Due to this crossfire from the police and gunshot volleys, the deceased Xhevahir Çela was immediately murdered (Xhevahir Çela did not have any previous police or legal records) and the defendant L. Caka was seriously wounded, with four bullets to his body. L. Caka was immediately apprehended and arrested, although he was under these circumstances an official report was made on the arrest in flagrante delicto. .. 23.-To justify itself of the murder of an innocent person, the citizen Xh. Çela and the attempted murder by a firearm of the citizen L. Caka, the police charged them with possession of firearms and that they have shot the police, when on the other hand the weapons attributed to the defendant “Caka” in this incident, prove to be weapons under the inventory of the Berat police force. Additionally, no impartial eyewitness has given evidence about that incident, neither has seen the defendant Caka and the deceased Xh. Çela carrying weapons or shooting at the police officers. 24.-The circumstances and the facts show completely the opposite in relation to the evaluations made by the Court of Appeal in the decision, subject to recourse. They are inflexible to the evidence administered in the hearing on the one hand and in particular they are contrary to the conclusions drawn by the European Court of Human Rights and the Supreme Court as by upholding the decision of the first instance court on this case, they have misapplied both the criminal procedural law and the criminal law as the facts and evidence reviewed by the International Court and the Supreme Court show and reach different conclusions about that incident. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 25.-On the contrary, the court, without accessing and at the same time disregarding these facts served and concluded differently from the circumstances of trial and conclusions reached by the Supreme Court, does nothing but only reformulates once more the conclusions reached by the Fier First Instance Court, concluding by an opposite position and contrary to the reality of the conclusions reached by the ECHR and the Supreme Court. Having a look at the decision of the Court of Appeal, subject to this recourse, one may distinguish a clear lack of courage and professional ambition. In this decision, the court does not evolve, neither refers to the observations of the ECHR and duties of the Supreme Court that overshadow and have provided another view of evidence of this episode of offence, which are not optional but binding, where the judges of that panel have lost the role of justice authority and regarding the evidence leading to innocence, they have instead deemed and driven them to the guilt of the defendant L. Caka. 26. The defendant and his deceased friend were shot at by police in the place about 100 meters away from the checkpoint. According to the police version, both of them were on motorcycle at a speed of about 70-80 km per hour and in that distance they had fired shots at the police ( without being aware and seeing the police operatives as they were under a fighting position, lying flat and masked). Being fully guilty, the police were wrong in terms of the version of that incident as the operational leaders of that secret checkpoint admitted that by riding the motorcycle at that speed, the defendant fired shots by an automatic weapon (Kalashnikov type) with one hand and used a pistol with the other hand. Then, the question arises- how can one shoot at that speed with two weapons at the same time? How would he ride the motorcycle, if he had both hands full with weapons while shooting? 27-It is sufficient to read through the evidence given by the former chief of the Berat Police Station, Ilir Ngresi and his friends (which is proven by the decision of Fier Court...) as presented in that way, the event completely goes in favour of the defendant’s innocence and we are dealing with another version of that offence by the police, in order to avoid incrimination in that incident... 28-Also, referring to the scene of incident official report dated 18 March. . . it follows that the automatic weapon and casings were found underneath the dead body of Xh. Çela... when in fact the location of the casings in no case and never would occur in the place where shooting is performed, as they are thrown some meters away, when after the shooting and bullets fired by the police, the motorcycle had fallen over and involuntarily moved due to the loss of control by the motorcycle rider as a result of the bullet strikes... or attributing that the DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 mask was on the head of the deceased person, Xh.Çela and the absence of the bullet hole shooting him in the head when it took his life etc... 29.- The truth clearly comes to light that the police at the Checkpoint and in building the zzzgg/zazzzszzz o f zzzßz^gzzZ oW Z/zg gvzdgzzgg gzazzzzzzg(f /zovg zzzZßzzZzozWty cozzzzzzzZZßz7 Z/zg gz-zzzzzzzaZ qfßfzgg qf "qz-gzzzß^zZaZß^ zzzzzzY^gz"" qf Z/zg zzaZzozza/ ATzgWzzz" Çg/a aW Z/zg AzZZgzzzqZß^ /zz-gzzzg^zZaZß^ zzzzzz-^gz" " qf Z/zg (fg/gzzdüzzZ Zzz/zzzzz Ca^a. AZZ Z/zß^g acZzozzs cozzzzzzzZZg^ aW /zwZ ZoggZ/zßZ" Z/zg /zoZZßg wgrg ^ß/z6graZg(y zzzWg Zo z-g^czzg zZzgzzz^ßZvß^ ^"ozzz ^zzcZz zzzßz-zzzzzzzaZzozz ... and at the same time established as such by the European Court o f Human Rights.... 30.-According to the acts of judicial file, the convict L. Caka had suffered 4 gunshot wounds to the body due to the volley of gunshots from the police checkpoint. One of the wounds was underneath the thorax with a piercing penetration close to his vertebra backbone and 3 other wound injuries were caused to the legs, one of them to the right hip... This is proven not only by the acts of the case fde but also by the photographs submitted to the Court of Appeal by the defence at the end of the judicial investigation. 31.-The wounds were seriously life-threatening at the moment they were caused and the fact is that after suffering them, the defendant L. Caka fell into comma (loss of consciousness)... and he was transported to Berat in that state. After midnight of 19th March he woke up (woke up from comma) in the pre-trial detention cell of Berat Police Station, moaning because of pain and hemorrhagic shock... without being administered any medical assistance. That fact is so true that even nowadays these wounds are clearly distinguished on his body by a quick look. Also, the fact that none of the police officers has any gunshot wounds by, clearly shows the absurdity of this incident attributed to the citizen L. Caka. 32-In its observations and comments about that case, which the Government submitted to ECHR during the case investigation, it was very helpful, intentionally or not, when it cited as acts of the file, the notarial statement of Berat hospital anaesthetist, Albert Merko, and the forensic report of the expert dated. 19.03.1998... 33.-According to the Government’s observation, in the notarial statements the anaesthetist "Merko" stated"....On 18.03.1998. at 14:30 hr s. the person wounded with a gunshot injury. Lulzim Caka. was brought to the surgery room where he worked as an anaesthetist...The wounded man was administered medication at the hospital, staved for about 2 hours at that hospital and was moved from there, escorted by police (see paragraph III-23 of the Government’s observation), a statement which is also available in the case file under examination. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 34.-A question arises: how can someone, notwithstanding his strength, with 4 Kalashnikov bullets in his body, go to the hospital and come out of the hospital after 2 hours? Who would take this statement of the anaesthetist as truthful when he stated «Lulzim Caka came with gunshot wounds»? Who shot and wounded «Caka»? Why was that statement taken from the anaesthetist and why is it available in the file? Who has been concerned about that? All these questions are answered in their very substance, in that the police in cooperation with the prosecution body of that time was concerned about such a statement. It was never given by free will but in certain circumstances in order to disguise the deliberate lack of medical assistance by the police against the defendant L. Caka, leaving him unassisted and suffering real torture in the cells of Berat Police Station... 35.-Another question is posed: At present, when this file is examined and properly treated and a completely different conclusion than the one of 1998-2000 is reached by an International Court, where we have also become part thereof since 1996, is it not court allowed to note down and decide a priori about guilt, in contrast to the course of events and facts rendered by an European court and the Albanian court of law? 36.-Further, the forensic report issued one day after the incident by the forensic doctor, established".. .pain due to wounds..and pain of the right leg...." Further, the report stated "..that wounds are caused by gunshot ...: without a clear definition of the nature of wounds, threat to life etc and the greatest and culminating surprise of this report is the closing remark that "these injuries fall into the category of slight bodily injuries with more than 9 days of rest... " 37.- Given that the applicant had suffered 4 wounds to his body due to gunshots, why weren’t the wounds examined and why was the legal expertise act not conducted by the Legal Forensic Institute of Tirana as the only scientific institution to issue and implement forensic acts? The answer to the question is that since the applicant was under a serious health situation, the legal experts of Tirana would not manipulate the truth about the wounds and the aggravated situation of the defendant L.Caka. According to Article 178 of the Code of Criminal Procedure, paragraph 1, as the defendant was wounded by gunshot, the prosecution was obliged to decide on the expertise act. On the other hand, according to paragraph 2 of Article 179 of the Code of Criminal Procedure, the prosecutor’s office is obliged to inform the defendant or his defense lawyer about the decision of the prosecution body on the appointment of an expert, informing him that he has the right to refuse an expert, propose other experts, to participate in the expertise act, if possible and to put questions to the expert. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 38.- The expertise act and the court decision, subject to review, as well as the investigation operations of the prosecutor’s office as an authority exercising criminal prosecution... lack all those elements of the act...rendering this act null and void, according to Article 128/ç of the Code of Criminal Procedure...and this act is intentionally made so, thus disguising the truth, without having administered the medical assistance to the defendant and leaving him in the cell at the mercy of his fate. 39.-A11 these actions were intentionally carried out as the group of the checkpoint police officers who shot, were not taken as defendants, nor the police chiefs who ordered the murder of Xh. Cela and the attempted murder of L. Caka... 40.-The Court of Appeal neither treats, nor mentions this intentional event and fact. Also, this is not done by the court in the first instance decision, subject to review, and this had to be realised without hesitation by the European Court of Human Rights. This absurdity and intentional putting together of pieces of information were challenged by another investigative operation carried out by the prosecutor of Berat District on the day of incident, 18th March 1998, which is the report of the arrest in flagrante delicto dated 18. 03. 1998, at 9 PM. Fortunately, the Government has made this official report part of acts to the European Court of Human Rights as an extract attached to the observations and the comment... 41.-In this official report indicating 9 PM as the time when the defendant "Caka was arrested in flagrante delicto", the Berat prosecutor, Mr. Flamur Bregu, in the last paragraph of the decision had stated “I inform and hand a copy of the decision to the person under arrest, Lulzim Caka." -This report is closed by a handwritten note with the words: “The detainee is not in a fit health condition to sign the official report of the arrest" After the note this arrest report is signed by the prosecutor Flamur Bregu and the persons who were present, Nesim Hasani (former chief of isolation cells at the Berat Police Station) and Sali VelçanL.a duty police officer. 42.-Therefore, according to this official report prepared by the prosecutor himself, contrary to the above cited expertise act the defendant suffered a serious threat to life not only due to the four bullets in his body but he was also left abandoned and without medical assistance, tortured and humiliated in that form... although the medical report... quotes some slight injuries... At about 9 10 DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 PM, about five hours later, the defendant was still in a comma in the pre-trial detention cell at the police station as the prosecutor’s note quoted that he was not in a fit health condition to sign.... 43.-This is properly demonstrated by the testimony given before the notary public by Nesim Hasani, chief of the pre-trial detention cells in Berat, clearly and properly stating that the person in custody, L. Caka, was not administered minimum medical assistance by the police. He wished to quit his job at that time as a sign of protest because the wounds of the detained person were bleeding in the cell... This statement was sent and became part of the acts of the applicant’s party to the European Court of Human Rights, proving that he was tortured, /zwzzzz/zafgz/ azzz/ treated zzz a » zzz/zwzzzazzg way, a s /zz-ovgzz Ay f/zg a cts avazVaA/e zzz f/zg c a s e fz/g aW a/so treated zzz f/ze azza/yszs o f f/ze Ewrqpeazz Court o f ArasAowrg. 44.-Let us refer to the way how ECHR treats the incident circumstances in clause 9 of the decision on the application admissibility dated 08.12.2009: "9...... Consequently, on 18 March 1998 the Berat police force set up checkpoints to coWzzct scarc/zcs fo r z/tcgat /zossesszozz of/zrearzzzs. Ear/y zzz t/ze a/ter?zoo?z ozz t/ze sazzzc dby, t/ze L&zty /zo/zce q /fccrs at t/zc c/zecÄpozfzt a/zgzzez/ zzz t/ze zzzrzzzz roar/ Agfwggzz t/zc towzzs o f Berat and Fier, shot by a firearm the applicant and X, another person who was riding the zzzotorcyc/c toget/zer wzf/z Azzzz. As a reszz/t, % was z/eaz/ azzzt t/zc a^p/zcazzt was ^gz-zou^/y wouWczt... " 45.- Further, in clauses 19 and 20 the European Court of Human Rights it analyses the following episode : "The applicant challenged the facts submitted by the prosecution. Fie stated that he had been rzt/zzzg t/zc zzzotorcyc/c uzzarzzzgz/ w/zezz t/zg /zo/zcg r f f c g r s a t t/zg sgcozzzt c/zgc^zozzzt tzazt opgzzgzt fire, without ordering him to stop. Fie also asked the court to summon witnesses who, at the tzzzzg o f t/zg zzzczf/gzzt, tzar/ Aggzz z/rzvzzzg ozz t/zg sazzzg roazt. 20. In the hearings of 23 December 1998 and 6 January 1999, four witnesses who had been driving on the same road and had seen the applicant while he was riding the motorcycle, gave evidence that the applicant had not been carrying any firearms. " 46.-It is worth stressing that in these circumstances the Criminal College of the Court of Appeal upheld the decision of the first instance court..., which was taken in 2000 by the Fier District Court. When this decision and acts of that file were elaborated, transmitted and "filtered" by a Pan-European Court to which Albania is a high contracting party, there was an obligation for the Court of Appeal to show another performance in the retrial on behalf of the Constitution and DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 the Convention to which Albania is a party. Above all, this is not a wish or desire but a constitutional and legal obligation for the court and as a conclusion of the error made by the Court of Appeal, we bring to the attention of this recourse, Article 23 of ECHR decision and duties entrusted by the Supreme Court, which refuses this episode in all ways possible. 47.-Focusing on this key moment which sheds light on the innocence of the defendant L.Caka regarding this incident, in analysing the ECHR decision, the Supreme Court reviews the issue of the transfer of case fde from the Berat District Court to the Fier District Court, a transfer which was requested by the prosecutor by the end of judicial investigation. The Supreme Court entrusted concrete duties in the retrial for taking into account in favour of innocence, the evidence concluded at the Berat First Instance Court (see page 8 and the following Supreme Court Decision), providing as follows: "23. According to Article 97/3 of the Criminal Procedure Court, the Fier District Court was required to take a decision about the validity of actions carried out by the Berat District Court. Such a decision is not included in the case file. The Government has set out that the case file and actions carried out by the Berat District Court are considered valid on the basis of a certification of 9 March 1999 issued by the secretary of the Fier District Court. 48.-Accordingly, it is clearly established that the state as a respondent before ECHR, admitted by a written act and by official position, taking in consideration and accepting at that European institution of justice, that the evidence taken in the judicial investigation and evaluated by the Berat District Court are valid. How could the Court of Appeal adopt a position against the state and law, openly challenging both levels of other courts, rendering a verdict of guilty for that incident, and without taking in consideration those which Albania has accepted before ECHR?! 49.-By ECHR decision of 08.12.2009, inter alia, a breach of Articles 6/1 and 6/3/d of the Convention was found against the defendant Lulzim Caka regarding the lack of justice while being rendered, deeming the decisions, subject to review at ECHR, as arbitrary and prejudiced. 50.-Based on this decision and on the acts of the case file, the Supreme Court has justly decided to accept the request for review and bring the case for retrial to the Court of Appeal, entrusting duties for a fair and appropriate solution, according to evidence and law, which pursuant to Article 440 of the Code of Criminal Procedure “Duties and conclusions of the Supreme Court decision are binding on the court reviewing the case.” DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 51.-Concurrently, it is worth stressing that the Supreme Court, by Decision No. 75 dated 07.03.2012, quotes and entrusts the Court of Appeal with the duty to review the case. See page 7, Paragraph V and the following of the decision, specifying as below: “The Criminal College considers to focus on ECHR Decision dated 08.12.2009 regarding the duties to be accomvlished by the Vlora Court of Avveal. From this decision it has transpired that the vrocedure of trial and substantiation process for both charges are suspicious and so in favour o f the applicant. 52.-Referring to the content and legal reasoning of the ECHR Decision dated 08.12.2009, wiziciz constitutes dze eie/nent o f new evidence and grounds for review, during dze reviewing process the Court o f Appeal, should take into account: 1-That Paragraph 20 of the ECHR Decision dated 08.12.2009, expressly provides as follows: " In the judicial hearings of 23 December 1998 and 6 January 1999, four witnesses who have been driving in the same road and have seen the applicant riding the motorcycle, gave evidence that the applicant was not carrying any weapons with him. " 53.-The same conclusion is reached by the European Court of Human Rights in the legal reasoning in qzzesizon, specifying in itsfz/dz paragraph dzat. "5. Holds that there has been a violation of Article 6/1 in conjunction with Article 6 /3 (d) of the Convention as regards the trial court's failure to have due regard to the evidence of four witnesses given in the applicant's favour before the Berat District Court; 54.-Further, in the framework of ECHR decision, the Supreme Court entrusts Vlora Court qfAppeais widz dze duty dzat during dze reiriai (see page 8 of dze deczszofy "It should take into account the evidence of the citizens Namik Cela, Ardian Dogani, Gramoz Dogani and Z zz/tar Oa&a, w/zo gave evidence dzat dzey were traveling dy 6us on dze dap of incident, dated 7&03.7PP#, in dze sanze direction o f dze road wtzere t/ze appiicant and izis nzurderedfyiend A7z. fyeia were and a s/zort wtzde 6e/bre t/ze event, t/ze izzzs tzad overtaken t/ze motorcycle. They gave evidence before the First Instance Court of Berat that neither the appiicantf uizi/n Oa&a, neidzer tize deceased ATzevaizir fyeia carried anyfirearnzs. Furthermore, these four witnesses were not requested from the defense lawyers of the applicant but they were requested and taken as evidence of the prosecution, in the list of witnesses required from the Prosecutor’s Office. ” DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 55.-However, let us focus and revert for a while to the way how the Court of Appeal disregards and openly challenges the decision, subject to recourse, the conclusions and outcome of the Supreme Court, when it states (see pages 7-8 of the decisionNo. 15 dated 19.12.2012): "Az its riecisioM tAe ^zzqre/Me Court Arts entrusted tAe rfuty to taAe iMto coMsirieratioM tAe testimonies of the citizens Namik Çela, Ardian Dogani, Gramoz Dogani andLuftar Caka. y4ccorrAMg to tAe evirieMce give» to tAe court in tAe /urAciai AeariMg q / 23.72.7PP&, the witness Namik Cela, confessed that on the day of the incident he was at the house of his brother Mestan Cela, together with Xhevair Cela, the brother Mestan Cela and Edmond... Xhevahir was the son of Mondi ’s paternal aunt... The son of his ArotAer, AoreMC Ceia, ca/Me Ay oW toA7 AAevo tAat so/MeoMe was ioo&iMg /o r Ai/M. We did not go out and that Lorenc would accompany him. After 5-10 meters the sister- iM- iaw saw in /rout q / tAe Aouse, at a riisfaMce q / 30 /Meters, a //zaM weariMg a Aoo<7 a/%7 we weMt out to see Ai/M. PoAce-tAey sai<7 a/u7 we ste//qeri iusirfe. ITe Aearrf gu/zsAots ^"o/M tAe direction of Pobrat... (Xhevahir) did not carry anything with him and I have not seen anything, he might have had a pistol in his pocket... During the hearing the witness Luftar Caka, gave evidence that on the day of iMcirZeMt Ae Aarf AeeM O M a Aus. ^4s tAe witMess exp/aiMerf '7 /Met Auii (tAe rfe/eMr&tMtj when I was returning from Strum to Kutalli, at 02-02.30 PM. Lulzim overtook the bus on which I was on a motorcycle. Xhevahir Cela was behind. I recognised Luli because he waived his hand. In Pobrat he was confronted with the police. There were gu/z/ire wAeM tAe Aus sto//qeri. A rAW Mot see wAat Aarf Aa//qeMer7 outside. A rArf not know from which direction the gunshots were fired. The witness Ardian Dogani, explained that on the day of event he had been on a bus. On the way he had overtaken Lulzim on a small motorcycle. According to the witness "about more than lkm without arriving to the gas station, I saw Lulzim. The defendant was with another person... I heard the gunshots, I did not see anything. I was scared. I did not see if he was carrying anything in his hands or not. Also I did not see the victim carrying anything in his hands.. ". Further, the witness Gramoz Dogani, who has also been travelling by bus on 7&03.7PP# iM tAe sa/Me rArectioM q / tAe roa<7 wAere tAe rfe/eMrAtMt aurf tAe citizeM AAevaAir Ceia were //assiMg, testi/zerf Ae/bre tAe Court Ae Aarf Mot seeM tAe rfeceaserf Xhevahir Cela and the defendant Lulzim Caka carrying any firearms. AM evaiuatiMg tAe evirieMce, regarrAug tAe iMcirieut it 7ee/MS as crerAAie evirieMce tAe evidence given by the witnesses Namik Çela, Ardian Dogani, Gramoz Dogani and Luftar Caka, only for those parts which comply with other evidence, with the evidence of witnesses Ilir Ngresi, Gentjan Musabelli, Arben Frasheri and other witMesses, //roviMg tAat tAe rZe/eMrAtMt aurf Ais /rieurf AAevaAir Çeia were traveiiiMg Ay a /Motorcycie OM tAe rAty q / iMcirieut. Afowever, it <7oes Mot riee/M tAe/M q / evirfeMtiary vaiue regarrfiMg tAe /a c t wAetAer tAe 7e/eMr7aMt aurf Ais /rieurf AAevaAir Çeia were carryiMg aMy wea//OMS as tAey <7o Mot co/M//iy aMrf Aar/MOMise witA otAer evirieMce ari/MiMistereri riuriMg tAe triai.... " 56.-The Court of Appeal reaches this position against the conclusions drawn by the European Court of Human Rights and the Supreme Court, without having any other DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 evidence in the retrial to reach that conclusion, when out of 6 witnesses called by the Supreme Court to be questioned in the hearing, only one could be questioned, the former duty police officer who was on duty on the day of event, 18.03.1998, Sali Callmori. He admitted facts proving the evidence of the defendant about this incident and favouring his innocence. Then, the question arises: How can this court find the courage and initiative to openly challenge the evidence and conclusions drawn by the European Court of Human Rights and the Supreme Court? 57.-The Supreme Court deemed to directly deal with the substantiation or not of the charges, when it states: "The whole part o f the legal reasoning o f ECHR decision puts in question not only the violations and regularity of the criminal process at the first instance court but also the process of substantiation of charges... "(see page 9 of the decision, Paragraph V). 58.-As defense lawyers of the convicted person, L. Caka, we are impressed and we put a big question mark to the integrity of this Criminal College. How can it openly challenge both decisions which are not called in question, such as the one of ECHR and of the Supreme Court? How can the Court of Appeal, by this status and analysis of unproven evidence, render a verdict of guilt being in contravention to law? 59.-The Court of Appeal is still in the year 2000, when the decision of the Fier First Instance court was rendered and both the decision of the European Court of Human Rights and of the Supreme Court were nonexistent for the Vlora Court of Appeal, as well as the conclusions reached by them. In this context, it is sufficient to refer to the excerpt at the bottom of page 5 and first paragraph of the page 6 of decision on the way how it treats the circumstances of this incident under Article 79/c... .of the Criminal Code, where it concludes against the conclusions and duties entrusted, when it states: "On 18.03.1998 the police forces of the Berat Police Commissariat have organised planned searcAes o f wanted persons for iZZegaZ possession offirearms, setting up cAecApoints witA public order officers and Rapid Reaction Forces at different locations of Berat town. One of these checkpoints was also set up near the petrol station of citizen Nadir Shehu, near Pobrat village of Kutalli Municipality, in the Berat- Fier road section. At about 14.30 hrs on 18.03.1998 a Honda model motorcycle was approaching the direction of that checkpoint in which the police forces distinguished two armed persons they did not know until that moment. After the sign made by the first checkpoint police officers to stop, the persons on the /MotoreyeZe furtAer increased tAeir speedy trying to escape. Meanwhile, the first checkpoint police officers notified via radio messages other police qficers tZzat two armed persons were coming in tZzeir direction, it was Zater found to Ae tZze de/endant ZuZzim OaAa, rising tZze motorcycZe and tZze citizen VAevaAir ÇeZa, wZzo was AeAind Aim. IFAen tAese two citizens approacAed tAe next poZice cAecApoint, tAe de/endant ZuZzim OaAa and citizen VAevair (feZa opened fire witA automatic weapons in tAe direction o f tAe poZice queers. Under tAese circumstances, tAe poZice forces Aeing under tAe voZZey o f AuZZets from tAe de/endant and Ais maZe friend, returned fire against tAem. As a resuZt o f tAe return fire Ay tAe poZice, tAe citizen VAevair (feZa was AiZZed, tAe motorcycZe overturned andfêZZ, wAiZe tAe de/enddnt TuZzim OaAa, maAing use of tAe area Ae Anew very DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 wgZZ, c r o s s e d o v e r Zo Z/zg oZZzez- s z d g q / Z/ze z-oazZ azzrZ zZzezz zzzZo a ca zz a Z wZzez-g Zzg cozzZzzzzzgzZ shooting at the police officers. When his bullets ran out and he was wounded and too weak to cozzZzzzwg, zZg/gzzrZazzZ ZzzZzzzzz Oa& a, zZzz-gw Zzziy awZozzzaZzc w eaq ozz ozzZo Z/ze gz-owzzzZ ^ozzzewZzez-g zzgaz"6y, zZzzs wayybzzzzrZ Z/zg/zoZzcg q^zcgz-y Z/zaZ az-z-g^ZgzZZzzzzz... " 60.-It is of no importance to the Court of Appeal what ECHR has stated and concluded about this incident. Neither the duties of the Supreme Court were taken in due regard or considered. It has given credit to itself as a ‘Supreme” Court, therefore in this way and by this language it has revised and attributed another and opposite meaning to the stipulations made by ECHR and the Supreme Court, without taking any evidence other than those which are evaluated and considered by those two Courts. On one hand, by experience and doctrine, these two courts guide the whole level of the judicial system. On the other hand, law and Constitution have not left the decisions of those courts in the hands or at discretion of the First Instance Court but have given them a binding value. Such challenge as in this case deserves attention, being a punitive example for the responsible persons, on behalf of the rule of law. 61.-Therefore, the Court of Appeal expressly admits without any hesitation that the incident, evidence and circumstances are under those conditions and circumstances as 13 years ago, without considering that the evidence rendering the guilt of the defendant have followed another direction and evaluation. This is not left to discretion; neither is it subject to deliberations because there are two levels of trial. One is of the higher instance imposed at the European level for the member countries and the other one of the reviewing court that has deemed and evaluated concrete duties and has attributed to the evidence an opposite evaluation. 62.-By this decision-making the Criminal College of the Court of Appeal has deleted from memory the conclusions about evidence going in favour of the defendant’s innocence, regarding the incident of 18th March 1998. They are not conclusions claimed by the defence of the defendant in the retrial but the indisputable conclusions of both courts, where one court is higher than the other. It shows a lack of responsibility for the rule of law and for the law our society and policy aim at. Further, it is contrary to the spirit of justice and integration of state policy, when arguing the decision, in its page 5, second paragraph, states as below: 63.-" The Supreme Court decision argues that in reference to the content of ECHR (Zggzszozz q / 0& 72 .2 0 0 9 , Z/zg FZoz-a OozzrZ q/M /zqgaZ z-gZz-yzzzg Z/zg casg, sZzaZZ gvaZwaZg sozzzg q / Z/zg gvzfZgzzcg adbzzzzzisYgz'gzZ zZwz-zzzg Z/zg Zz-zaZ aZ Z/zg /zrsZ zzzsZazzcg cozzrZ azzzZ sZzaZZ caZZybr evidence with witnesses, as stipulated in this decision of the European Court of Human Rights. According to the provisions of Article 440 o f the Code o f Criminal Procedure, the OozzrZ q f A^zqgaZy zzz gxgczzZzzzg zZzg zZwZzgs sZzqzzZaZgzZ zzz Z/zg &zqz-gzzzg OozzzY zZgczszozz, /zaz-zZy z-gpgaZgzZ Z/zg yW zczaZ zzzvgsZzgaZzozz ozz Za&zzzg q f zzgw gvzfZgzzcg ^qggz/zgzZ zzz zZzA zZggzszozz. " 64.-Therefore, the Court of Appeal allegedly referred to both decisions from the formal perspective, as it transpired from this paragraph of the legal reasoning. On the other hand, it decided without having any new evidence and contrary to both decisions which 16 DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 reviewed and granted the right to retrial of the case. Further, without hesitation, as if these decisions were not part of the file, it could render a verdict of guilty, upholding the first instance court decision, reusing once more what the Fier First Instance Court had done 12 years ago. 65.-Jointly considering both decisions which are an integral part of the case hie, namely the ECHR decision of 08.12.2009 and of the Supreme Court No. 75 dated 07.03.2012, which are binding, not only make the option of this recourse to vacate the case properly grounded but it should be also emphasised the remark for the criminal chamber of the Court of Appeal, which openly challenges them in contravention of the law and both courts. In this context, let ws rg/gr to /zagg 72, tAzW aWybwrtA /xzragraqA q/tAg äbqrg/Mg OowrtDggzszofz Ao. 7J, Wtgz7 07.03.2012, which reads as follows : "ECHR doubts the fact of the possession of weapons by the applicant and his /MwWgrg(7 yrzgW, wAzcA is rgportgzZ »of ozz/y Ay tAg wztzzgssgs Aa/nzA Çg/a, Gra/zzoz Dogani etc, but also from the ballistic report of weapons attributed to the applicant and his /MwrWrg(7 yrzgW, wAgrg yrozzz it rgWtgzf tAat tAosg wgaqozzs wgrg /zart q / tAg zzzvgzzto/y q/^ Berat public order forces. Once more, reference should be made to paragraph 38 of ECHR Decision, reading as follows: "38. In that connection, the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report, adding that the casings found at the scene of incident had been fired from the weapons found close to the accused. However, there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant. 66.-However, let us quote another excerpt from the legal reasoning of the Court of Appeal’ Decision on how it adopts a controlling position and disregards these conclusions about the ballistic report and non-possession of weapons by the accused and the deceased Xh.Çela (see first paragraph, page 9 of the decision) reading as below: "....Also, according to the ballistic expert act No. 416 dated 11.04.1998, it is concluded that 7 oaszzzgs ybzzW at tAg scgzzg q / zzzcziTgzzt AW Agg» /zrg(7 Ay tAg awto/zzaAg wgqqozz sgrza/ Ao.. 200AW94, wAzcA was tAg awto/zzatzg gzzzz /ozzW zzWgr tAg vzotz/M, AAgvazr Çg/a aW tAg other 14 bullet casings were fired by the automatic weapon No. 3927, which in particular is tAg gzzzz ybzzW zzgar to tAg <7g/gWazzt. According to the ballistic expertise act No. 49 dated 19.03.1998, it results that the two azzto/zzatzc wgaqozzs aW tAg sgzzgzf AaW^zzzzs ybzzW at tAg sggzzg q / zzzgzWzzt wgrg tgcAzzzca/Ty ^zzzctzozzaZ aW AW Agg» rgggzztfy/zrg(7. 7A rggaMs to tAg g/az/M tAat aggoWzzzg to tAg AaAzsAg expertise act, these weapons are part of the inventory of Berat Police Force, this conclusion /Mast Ag gva/watg^ zzz rg/atzozz to tAg gzrgzz/Mstazzggs arowW tAat tzzzzg, wAgzz a/tgr tAg rzots q/^ 7997, zzzazzy wgaqozzs wgrg Zootg<7 Ay varzows oztzzgzzs ^"o/M tAg /MzVztary aW statg /zo/zgg a/M/Mzzzzztzozz wargAozzsgs. " DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 67.-During the review after the opening of this case, the Court of Appeal disregarded the fact that the acts and conclusions drawn are not at the status they had been in the file when the verdict of guilty was rendered by the Fier first instance court (Decision 175, dated11.05.2000), as currently there are completely opposite conditions and circumstances of evidence and acts, where they were evaluated and considered by ECHR in the Decision of 08.12.2009. By its importance and fairness of treatment, this decision constitutes not only the doctrine of international criminal law but also a profile of law and jurisprudence of a court affecting the principles and solution of concrete standards or issues even in western countries that have a much higher status, position and more extensive experience than Albania and its judicial system in rendering justice. 68.- Having rendered the verdict of guilty, the Court of Appeal does not properly analyse the fact that the Supreme Court, based on the ECHR decision, had paved the way to a fair settlement of the case on its merits, that the Court of Appeal had to put an end to the unlawful status of the person defended by us by annulling the decision of the first instance court and vacating the case trial. 69.-In our opinion, the Supreme Court has not created room for hesitation regarding his innocence but further it has not disputed the innocence of the person defended by us, Lulzim Caka. It has done so as according to the procedural law, the Supreme Court has a reviewing function in regards to the request and designation of tasks to be resolved by the first instance court. In this context, we are often obliged to refer to this decision, in order to elucidate the truth (here is what the Supreme Court states in page 9 et seq of its Decision): “Referring to the report of the hearing dated 21.02.2000, page 153 et seq of the case file, it follows that the Fier First Instance Court based the guilt on the questioning of witnesses among the police officers (as stipulated by the European Court of Human Rights in paragraph 37 of the just quoted decision), and precisely the officers of the Berat District Police Station questioned on that date were Ilir Ngresi (former Chief of the Police Station Berat, see page 154 et seq of the case file), or another witness Gentian Musabelliu, former Criminal Police Inspector o f the Berat Police Station (see page 156 et seq o f the file). During that same hearing, Arben Frasheri, former Chief of the Criminal Police of the Berat District Police Station (see page 159 et seq the case file) and Abdulla Alia, former public order inspector (see page 767 et seg o f tAe fiie . J were questioned, wAere tAese fast two witnesses did not provide data on the guilt in connection with the applicant. On 06/03/2000 the witness Julian Kuçi, a former police officer of the Berat Police Station was quesAoned (see page7#7 et seq o f tAe ease fife, wAere witnesses TAr, Gentian an^7 JwAan Aave Aeen /»art o f tAe operation and tAe eAeeApoint, wAere tAe incident occurred on 7#^ March 1998, while witness Abdulla Alia denies being at the scene o f the incident. On the other hand, according to the official report, the witness A. Frashëri had been a cAecApoint aAead, wAere tAe (atter's testimony was disputed Ay tAe prosecutor Aimseif and a/ter Aearing tAe reAuttai made Ay tAe prosecutor and tAe reading o f statements at tAe Aearing it was requested tAe direct and cross examination, AotA Ay tAe appAcant and Ais de/ênce, a ciaim tAat is repeated in several otAer Aearing sessions Ay tAe appAcant and Ais de/ênce, as allegedly Ais evidence Ae/ore tAe prosecuAng Aody was not true. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 In the context o f examination of this event, having observed that out of four prosecution witnesses, only two gave evidence of criminal culpability on the incident of 18.03.1998, both of them being in leading positions of police and an operational part of the checkpoint of the event, the European Court o f Human Rights considers their statements with reservations. Cozzyzdez-zzzg Z/zgzzz zzz z-g/aZzozz Zo oZ/zgz- gvzdgzzog, zZ o a //y zzzZo gzzgyZzozz Z/zg ZrzzZ/fzdzzgyy azzd yzdzyZazzZzaZzozz o f Z/zg o/zazgg z-ggaz-dzzzg Z/zg qfgzzyg /zz-ovzdgd 6yAz"Zzc/gy 7P/q-22 azzd o f Z/zg Cz-zzzzzzza/ Codg, w/zgz-g Z/zg frzgzzd o f Z/zg aqp/zoazzZ, A/z. Çg/a, way ^z//gd azzd Z/zg aqp/zoazzZ z-gzzzazzzgd zzz/zzz-gd wzZ/z 4 6zd/gZy. Ozz Z/zg oZ/zgz- /zazzd Z/zg cozzrZ offzz-yZ zzzyZazzcg /zay zzoZ Za^gzz zzzZo oozzyzdgz-aZzozz azzd zzoZ fozzzZ/y z-gvzgwgd oZ/zgr gvzdgzzgg o f Z/zg /zz-oyggzzZzozz w/zzo/z /zavg testified in favour of the applicant, in favour o f innocence on that charge and for this ZZZCZdgZZZ". 70.-However, in contract let us present the overshadowing and rejection by the Court of Appeal, of these conclusions about these stipulations of the Supreme Court and of the European Court of Human Rights (see last paragraph, page 6 et seq, page 7 of the decision of the Court of Appeal), reading as below: "Thus, according to the statements o f the witness Ilir Ngresi, who on the day o f event was on dzzZy aw Z/zg C/zzgf o f ßgraZ Eo/zcg ÄZaZzozz, Z/zaZ day /zg way /gadzzzg Z/zg ppgraZzozzfor a ggzzgra/ ygarc/z fo r wazzZgd /zgz-yozzy azzd /zgz-yozzy zzz z//gga/ /zoyygyyzozz offzz"gaz?zzy. Efg way /ooaZgd aZ Z/zg ygcozzd g/zgg^zozzzZ azzd gjco/zazzggd^z-g wzZ/z Z/zg dg/gzzdazzZ, w/zo w/zz/yZ zzzyw/Zzzzg /zad y/zoZ in the direction of the witness. He survived by luck and due to his colleagues calling out "He z'y gozzzg Zo &z// y o u g/zzgf dozz Z yZazzd zzp" ay aZ Z/zaZ Zzzzzg ozz/y a y/zoz-Z dzyZazzcg o f zzzoZoz"way ygpaz-aZgd /zzzzz ^"ozzz Z/zg dg/gzzdazzZ. ^zzc/z a fâ cZ /zgÿzgd Z/zg wzZzzgyy 7/zz" Agz-gyz zzoZ Zo fbz-ggZ Z/zg face of the defendant Lulzim Caka. The witness Ilir Ngresi explained that he previously knew the defendant Lulzim Caka due to his duty as the Chief of the Berat Police Station. The witness Gentjan Musabelliu as well, on duty as the criminal police Inspector of the Berat Police Station on the day of incident, explained that when he was at the police checkpoint at the Pobrat village petrol station, they were shot at by wga/zozzy /zz-g frozzz Z/zg oZ/zgz- yzdg o f Z/zg z-oad azzd Z/zgy Zoo& oovgz" /zoyzZzozzy Zo g y g a /z g Z/zg y/zoZy. ^4Z Z/zg z -o a d Z/zg wzZzzgyy /zgaz-d a v o z g g frozzz Z/zg o a z z a f y/zozzZzzzg ‘‘Don’t come closer otherwise I will kill you” and he continued to shoot in the dzz-ggZzozz o f /z o /z g g q f/zogz-y w /zo z-gZzzz-zzgd /zz-g. /E/zgzz Z/zg Zzzzzg w/zgzz Z/zg gjco/zazzgg of fire from both sides stopped, the witnesses Gentjan, and Ilir Ngresi crawled along the ground and checked the canal. It was this witness in particular who ga/zZzzz-gd Z/zg dg/gzzdazzZ 6y /zozzzZzzzg /zzy gzzzz Zo Z/zg dg/gzzdazzZy /zgad. T/zg dg/gzzdazzZ threw his gun away to the side of the canal, some distance away from him. He then placed his hands up and said “I ’m Lul Caka". According to the witness Arben Frasheri, on duty and the former Chief of Criminal Police at the Berat District Police Station, explained that when the defendant and his zzza/g frzgzzd z-odg Z/zg zzzoZoz-gyg/g Z/zz-owg/z Z/zg fzz-yZ c/zgcÆpozzzZ, w/zgz-g Z/zzy wzZzzgyy w ay /ooaZgd, Z/zg dg/gzzdazzZ azzd /zzy frzgzzd /zad 6ggzz az-zzzgd. TTzgy f/gdfb d ow zzzg Z/zg z-ggzzgyZ DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 q / Z/ze /zo/zce Zo sZop. TTze c/az/MS zzzaz/e Z/ze z/q/ezzz/azzZ Z/zaZ /ze w as z/ezzzez/ Z/ze rig/zf Zo gwe^Zzozz Z/ze wzYzzess y4r6ezz F^ras/zerz aZ Z/ze /zearzzzg q / 24.02.2000, are zzoZ /bw W ez/ a s a o o o rz/zzzg fa Z/ze oozzZezzZ q / Z/ze o j/z o z a / r e c o /W s q / Z/ze /zzz/zoza/ /zearzzzg, zZ r e sz z /fs that the defendant put a question to the witness, to which the latter replied. While the cozazse/ /o r Z/zg (/g/gWazzZ gj^ressez/ Z/zaZ Z/zg}; z/zz/ zzoZ /zavg a»}; qzzgsZzozzs /o r Z/zg wzZzzgss, aW a/Zgr Z/zg gvzz/g»gg q / Z/zg wzZzzgss w as rg/ggZgz/ 6}; Z/zg /zrosggzzZor, Z/zg gozazsg/ rggzzgsZgz/ Zo /zzzZ gzzgsZzofzs Zo /zz/zz, a /zroggz/zzrg w/zzo/z rzg/zZ/w//y w as zzoZ /zgr/MzZZgz/ 6}; Z/zg oozzrZ. " 71.-What the Supreme Court has exactly done is that with professional language and a sense of responsibility as a Court of Law, based on the constitutional obligation and the Convention, has derived concrete duties from the Decision of the European Court of Human Rights. In this framework it guides the Court of Appeal about the verdict it must render in support of the fair settlement of the case. For this purpose it alwaysrefers to the legal reasoning and observation of the ECHR, when it again takes into consideration Articles 29, 30 and 31 of that decision. 7 2 .-These duties as in the decision of the Supreme Court and of ECHR, are basically related to the fact that the defendant and the defence have claimed to be confronted with the prosecution evidence in the trial and not with the reading of their statements. The cause of non-appearance of the three police officers, who were part of the operation of 18th March 1998, was called into question by the European Court of Human Rights. In this framework the former police officers Sali Callmori, Arben Mesiti and Sokol Duri should be summoned by the Supreme Court and be questioned, where during that judicial investigation it was enabled only the questioning of Sali Callmori.... 7 3 .-Further (see page 12 et seq of the decision ) the Supreme Court concludes that: “The Criminal College entrusts the Court of Appeal with the duty to evaluate the views of the European Court of Human Rights, in particular the section of the evaluation of the decision, in which it was concluded that there was a violation of Articles 6/1 and 6 /3 (d), regarding the allegations and substantiation of the charge relating to Articles 79/Ç-22 and 25 provided by the Criminal Code and this position is deduced in Paragraphs 115 and 116 of ECHR decision. 74.-These reference and supporting Articles of the Supreme Court decision with regard to the decision of 08.12.2009 of the "Caka" case (115 and 116) analyse the position of the applicant and his defence by the non-renunciation to questioning and appearance of witnesses against him on one hand and the observation of the lack of will of public authorities to bring the DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 prosecution witnesses before the first instance court, thus deeming it as violation of Article 6/1 and 6/3/d of the Convention. 75.-Both courts which prepared the ground for review, take and evaluate as evidence in favour of innocence of the defendant L. Caka the notarial statement submitted to ECHR in 2003, issued by the former presiding judge of the panel of judges of the Berat Court (page 12, first paragraph of the Supreme Court Decision and Article 46 of ECHR Decision). 76.-In evaluating the said statement, the European Court of Human Rights deems that the file was transferred from the Berat District Court to the Fier District Court, when the panel was terminating the judicial review and at the time when it had created the belief there were not sufficient evidence against the defendant and when the declarer confessed that evidence given to the court was not given priority in relation to those taken by the prosecution. It further observed that the Fier First Instance Court had not considered the fact that the ballistic expertise act of weapons attributed to the defendant, were part of the inventory of the Berat District police forces. 77.-However, let us introduce the legal reasoning and extremely opposing the indifferent position of the Court of Appeal regarding this fact, which on one hand takes as a direct speech the analyzed part of this statement by the ECHR and the Supreme Court, and gives no credit and ignores indifferently and unethically the law and evaluation of that statement by ECHR and the Supreme Court (see third paragraph, page 11 of the Court of Appeal’ decision) reading as below: "Based on the content of the ECHR decision, dated 06.01.2003 the defendant Lulzim Caka /vrxfwrW a notarised statement Ay BasA&im EfoxAa, tAe fW(ge wAo AW /presided over tAe bench o f Berat District Court in the judicial proceeding. The above-mentioned decision states that according to this declaration ‘‘The proceedings had been transferred to Fier District Court, to tAe W/ënWnt's WtriTMeMt, at a /point wAen Berat District Court Aact Aeen near tAe eW of tAe ezaTMiMatioM o f tAe case aW Aact Aeen A&efy to conc/uW tAat tAere was insufficient evidence against Aim. According to that statement, the citizen Bashkim Hoxha maintained the view that Fier District Court had admitted witness statements obtained at the police station rather than those obtained during the trial before the Berat District Court. He also argued that Fier District Court had not considered a ballistics report submitted during the trial before the Berat District Court, from which it was proved that the automatic weapons allegedly used by DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. T E 1300323 the applicant belonged in fact to the Bereit Police Force. Furthermore, he stated that the applicant's counsel had withdrawn from defending him during the tried before the Fier District Court as a consequence o f the threats to their lives and those o f their families ”, Regarding this notary statement, the Court of Appeal considers it of no evidential value of what it seeks to prove, deeming it as a personal declaration, also based on personal evaluations, with no legal value, that is not supported by any written evidence or administered witnesses. ” 78.- In the framework of Paragraph 4 of legal reasoning of ECHR Decision, regarding the charge as provided by Articles 79/c-25 and 22 and 278/2 of the Criminal Code, the Supreme Court entrusts the Court of Appeal with the duty (see the fifth paragraph) of questioning the former police officers Sali Callmori, Arben Mesiti and Sokol Duri, operationally part of the checkpoint of the incident of 18th March 1998 (these three witnesses summoned by the prosecution) but in the hearing only the questioning of the witness Sali Callmori was made possible. 79.-Being the only evidence reviewed by six witnesses called by the Supreme Court and the European Court of Human Rights, it is worth stressing that this witness declared in favour of innocence regarding the charge under Article 79/c of the Criminal Code, where due to the testimony and confrontation questions, this witness basically admitted he had no knowledge about the operation and that the operation had been secret. Further, he admitted that he had been at the supporting line of the operation, that they were masked and in a fighting position (lying). 80.-On the other hand, the non-appearance of two other former police officers associated with that incident, and of other two witnesses to be called for the charge under Article 76 of the Criminal Code, in connection with the defendant L.Caka, namely the witnesses Arben Sadiku and Agron Kiptiu, favour the defendant in conformity with Article 4 of the Code of Criminal Procedure and Article 30 of the Constitution. B-Regarding the guilt under Article 76 of the Criminal Code against the citizen P. Emini: 81.- As we have suggested, although the witnesses Arben Sadiku and Agrop Kiptiu (as it was confirmed that Todi Tiranishti was dead) have not stated any facts and in no circumstances provided a concrete description regarding the charge under Article 76 of the Criminal Code against the defendant L. Caka and questioned in the investigation about the event of 21 July 1977 DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 which occurred in the “Sadiku” carwash, Lushje, where the citizen Pellumb Emini was killed by an unidentified person, it is worth observing that in reviewing the case the court renders a verdict of guilty in breach of the conclusions reached by ECHR and the Supreme Court. It should be reiterated that these two witnesses at the Court of Appeal, without being administered via procedural channels as officially provided, were beyond the reasonable doubt and were in favour of the defendant, according to Article 4 of the Code of Criminal Procedure. 82.-For this purpose the doctrine and criminal law both from the ordinary case law to the jurisprudence and constitutional law have established and confirmed they go in favour of the defendant. It is worth stressing that regarding the charge under Article 76 of the Criminal Code, the person defended by us has adopted not only a categorical refuting position and had not known the deceased citizen Pellumb Emini but on the other hand, it is impressive as although this event had occurred in 1997, this charge was activated and filed against L. Caka after it has occurred and he was imprisoned for the incident with the police on 18.03.1998. 83.-Some decisions of the Criminal Chamber of the Supreme Court had adopted positions in line with the failure to bring and confrontation with the prosecution evidence in the judicial hearing, where we shall quote the Decision No.154 dated 29.03.2006 reaching conclusions in a similar case: "TTze case investigation, taking q / evidence attriAutecZ to eacZz criminaZ cas g anrZ producing them in court, is a duty of the prosecuting authority while their evaluation sZzaZZ 6e concZusiveZy comZucte^Z 6y tZze court, wZzicZz settZes tZze case 6y taking a décision. TZze yäiZure to car/y out aZZ actions required/rom tZze prosecutor s q//ice anrZ to 6ring evidence connected witZz tZze co/M/Mission q / tZze crZ/MinaZ q//ence /May in^ZeecZ in/Zuence the court conclusions, which notwithstanding its right to take new evidence, cannot repZace tZze prosecuting authority in taking evidence, /n tZzis regard, it sZzouZ^Z 6e ta^en into account tZzat according to tZze CocZe q / CriminaZ Procedure, taking q / evidence anrZ tZzeir bringing 6e/ore tZze court is 6ase<7 on tZze accusatory system, as provuZgLZ 6y Article 148 of the Constitution of the Republic of Albania, according to which "The Prosecutor s Q^ice exercises criminaZ prosecution anrZ represents tZze prosecution in tZze triaZ on 6eZzaZf q/tZze state ”. Zn tZze a6ove circumstances, tZze cZzarge against tZze triecZ person, A. C, remains suspicious as according to ArticZe 4 q / tZze CocZe q / CriminaZ Procedure "any 84.-In a number of similar decisions, the ordinary case law of the Supreme Court has reached conclusions as the one we are suggesting in this recourse and we are making part of our position and arguments, the Decision No. 35 dated 15.01.2003 in which the Criminal College of the Supreme Court observed that "(Court decisions) are not a result o f a complete examination of all circumstances of the case, an obligation deriving from the interpretation to Ag /MatZg rggartZiMg tAe //rovisioM ofvdrticZg 4 oftAg CotZg ofOri/Mi/zaZ Procedure. y4ggo/%AMg to tAat vdrticZg, tAg cZg/g/utaMt is //rgsu/MgtZ tM/zoggMt tZuriMg tAg futZiciaZ rgvigtv as long as his guilt is not proven by a final court decision. In addition to the rights enjoyed by tAg //grsoM ta&gM as a cZg/g/utaMt (ZuriMg aZZ /»Aasgs o f triaZ UMtiZ Ag is fbu/uZ guiZty Ay a /m a i court decision, this principle indirectly derives the obligation o f the prosecuting authority, in particular o f the court, that during the judicial review it cannot and is not permitted to focus OMZy on tAg gza/MiMatioM o f circu/MstaMcgs tZisfavouriMg tAg cZg/g/utaMt Aut gitAgr gjc q^icio, it sAouZ^Z g%tg/uZ it to rgvigrv tAosg circu/MstaMcgs tAat /May Ag or arg iM favour o f tAg cZg/g/utaMt, gspgciaity, if tAg Zattgr arg aZZggg^Z Ay tAg tZg/g/uZÜMt Ai/MsgZf or Ais tZg/gMgg Zatyygr... " 85.-The constitutional jurisprudence which has a general and indisputable binding force over the judicial system is introduced by a consolidated and coherent progress and approach to our position, where we are making part of this discussion the Decision No. 9 dated 28.04.2004 of the Constitutional Court, concluding as follows: "The Constitutional Court deems that the observance of the principle of //rgsu/M//tioM o f iMMOggMgg coMstitutgs o»g o f tAg gig/MgMts o f rggwiarüy o f a futZiciaZ process. According to this principle, the courts should not begin a judicial process witA tAg A g/igf tAat tAg tZg/gMtZaMt Aas co/M/MittgtZ tAg cri/Mg Ag is aggwsgfZ o f Evgry tZouAt sAouZtZ g o iM fa v o u r o f tAg tZg/gMtZaMt aMtZ tAis //riMgi//Zg tvouZtZ Ag coMsitZgrgtZ //rg/utZiggtZ if tAg AurtZgM o f //roof tvgrg traMs/grrgtZ fro/M tAg //rosggutioM to tAg tZg/gMtZaMt. ^4 tZuiy o f tAg ordinary cou rt rgvigtviMg a gri/MiMaZ gasg is to qffgr a //ossiAiZity to tAg tZg/gMtZaMt to Ag tZg/gMtZgtZ Ay Ai/MsgZf or tArougA tAg tZg/gMgg Zarvygr aMtZ it sAaZZ taAg its tZggisioM on tAg Aasis o f tZirggt aMtZ iMtZirggt gvitZgMgg to Ag //rovgM Ay tAg //rosggutioM a/taZ aaZ/Mt/tZstgrgaZ Z/t tA g ft/g . As provided by the Constitution of the Republic of Albania, the European Convention of Human Rights and position adopted by the jurisprudence in this regard, the allegation for violation of this constitutional standard shall require in a judicial //roggss tAg itZgMti/igatioM amZ cZgar p rovin g o f aZZ tAosg &gy gZg/MgMts wAicA /May Aavg ZgtZ to tAg tZggZaratioM o f guiZt o f tAg tZg/gMtZaMt OM tAg Aasis o f tZouAts aMtZ rvAicA have made the court conduct partially in rendering its decision. " (see the Constitutional Court decision No.19, dated 18.09.2008). 86.-Presumption of innocence consists of several aspects, one of which is in dubio pro reo, namely, each doubt goes in favour of the defendant and the burden of proof mainly rests with the prosecution body. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 87.-In accordance with Paragraph 2 of Article 6 of the Convention, Article 30 of the Constitution provides that "anyone shall be considered innocent unless his guilt is proven by a final court decision”. Article 4 of the Code of Criminal Procedure formulates this principle as follows: “The defendant shall be presumed innocent until his guilt is proven by a final judicial decision. Each doubt of the charge shall be considered in favour of the defendant”. The meaning and proper practical implementation of the presumption of innocence principle is the main safeguard for protection of the defendant’s rights as this principle obliges the prosecution to prove the guilt of the defendant, releases the latter from the burden to prove his innocence, entitles him to choose the most suitable defence lawyer for him, make statements or not, ask evidence and actively participate in their review, claiming that suspicious evidence are always interpreted in his favour. 88.- The presumption of innocence principle is also elaborated by the jurisprudence of the European Court of Human Rights (ECHR) which has stated that this principle requires, inter aha, the execution of duties by the members of a court should not begin with the predefined concept the defendant has committed the offence he is accused of, that the burden of proof belongs to the prosecutor and each doubt should be in favour of the defendant. It is a duty of the prosecutor to inform the defendant about the case against him, so that he may prepare and present the defense and to challenge evidence that are sufficient to sentence him (ECHR decisions Minelli v. Switzerland; John Murray v. United ^TzzzgzZo/M dbfezZ & EeZzrzza/y 7996; Tg Z/her v. A ustria dbfezZ 2 0 Jzzzze 2 0 0 7 / 89.-In conclusion, we may state that the failure of 4 prosecution witnesses to be questioned in this judicial investigation for both charges for which the Court of A/zpeaZ Zzas rezzzZerezZ a verzZzof zz/gzzzZfy, zzza&es fZzzi? evzzZezzoe ev e» z / zZzzrzzzg fZze /zre- trial investigation these testimonies were evidence in favour of guilt (when in fact fZzey are zzof szzoZz/ g o ZzgyozzzZ azzy reasozzaZzZe zZozzZzf azzzZ zzz /avozzr q / zzzzzooezzoe /o r zTzg /zersozz zZe/ezzzZezZ Zry zzy ZzzZzzzzz Oa&a or Ozg vaoafzozz q / frzaZ wZzzcZz sZzozzZzZ Zzave Zzeezz zzzazZe fZze Oozzrf q/A/zqeaZ. 90.-Regarding the charge under Article 76 of the Criminal Code and guilt rendered about this offence both the European Court and the Supreme Court have entrusted the Court of Appeal with the duty in the reviewing process that this guilt is rendered in violation of the process and without evidence. In this context, we refer to page 14 of the Supreme Court decision, fourth paragraph: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 The European Court of Human Rights, considering in detail the charges and the sentence imposed to the applicant in relation to Article 76 of the Criminal Code for the murder of citizen P. Emini, has put in question the process of proving, has found irregularities in the process and in proving that charge. For this we are quoting an excerpt which is binding to be taken into account in reviewing this case at the Court of Appeal, which addresses this fact in Paragraphs 112, 113 and 114, where the European Court of Human Rights to which the Supreme Court directly refers in Articles 112-114, briefly reaches the conclusion that the grounds of guilt are wrongful only for the evidence of the victim’s sister, Zenepe Hamiti, who refers to a person who at the time of her evidence, was dead... Further, in Article 114 ECHR observes that this witness was not an eyewitness and was not present in the crime scene. 91.-Further, page 15 of the Supreme Court Decision highlights the testimony of that witness, page 63 of the case file, given on 21.02.2000, whereby she reported that she was not present in the scene of incident and had not known the defendant. On the other hand, she admitted that her brother was murdered by the defendant and she was informed about this fact by the citizen J. Nurçe, who was dead at that time , hr this framework, the Supreme Court entrusted the Court of Appeal (page 15, third paragraph) as below: ....regarding this criminal fact in reviewing the case, the Court of Appeal should take into account the conclusions of the European Court of Human Rights, in clauses 7 aW 2# q / tAe becisio», to rea^T as /b/Zows: 7. P. was murdered on 21 July 1997. On an unspecified date in 1997 a criminal investigation was instituted against the applicant. During the criminal investigation, the victim's sister, A., even though she had not been present in the scene of incident, stated that the applicant had killed her brother. She based her evidence on the account of three witnesses, B., C. and D., who, as it would appear, were questioned on an unspecified date. 28. On 21 February 2000 the court heard the evidence of A., who stated that the applicant was the murderer of her brother P .... Further, upon the request of the applicant, the Fier District Court issued several summons writs for the appearance of B.,C. and D. However, the witnesses never attended court. 92.- Nevertheless, without deviating from that duty and the conclusion reached by the Supreme Court and ECHR let us see how the Court of Appeal argues by rejecting those conclusions (see page 12, last paragraph of the Court of Appeal’ decision)'. "Regarding this charge at a judicial hearing, the First Instance Court heard the evidence of the citizen Zenepe Hamiti, who explained that the citizen Isuf Nurce, who is now dead, had to&T Aer tAat Aer ArotAer was ÆiAeb Ay tAe be/ëf%ta»t ZwZztTM OaAa. TAe evidence q / tAts DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 cZZZzgM, aZzAowgA ZZ oaMMoZ Ag coM/Zr/Mgb Ay ZAg //gryoMaZ bgcZaraZZoM q/Au/TVwrcg, ay Ag Zy aZrgaby bgorZ, Zy bgg/Mgb Ay ZAg CowrZ q/jA/ZZ gvZbgMZZaZ //owgr rggarbZMg ZAg cwZpaAZZZZy q/zAg defendant Lulzim Caka, for committing the criminal offence of "murder with intent" of the citizen Pellumb Emini, as according to Article 154/4 of the Code of Criminal Procedure, the wZZMgyy Aay Z^gMZZ/Zgb zAe yowrgg q / gvZbgMgg ...... 93.-Further, in the Supreme Court Decision of the same page, the Supreme Court concluded in the reviewing decision that: "Page 61 et seq of that case file informs that the statements of prosecution witnesses Todi Tiranishti, Arben Sadiku and Agron Kiptiu are read in relation to the charge under Article 76 q / ZAg CrZ/MZMaZ CWg, wAgrg ZAg bgggavgb P. Em Ah way ÆZZZgb aW zAg oqpZZcaMZ maintained he had no connection with that incident and it is crucial to take into account that MOMg q/zAoyg gygwZZMgyygy q / ZAg ZMcZbgMZ way qagyhoMgb Ag/brg ZAg cowrZ 94.-The truth is that none of those witnesses was questioned as quoted above and the Appeal, in violation of law, considers those witnesses in reference of the statements made in the pre trial investigation, when none of them had described and qualified the convicted person L. Caka as the perpetrator of the murder of the citizen P. Emini. Above all, this evidence would acquire an evidential value if they attended and gave evidence before the court, as ECHR and the Supreme Court had entrusted the Court of Appeal with that duty during the reviewing process. 95.-Unlike the legal reasoning of the Court of Appeal, regarding the evidence of Todi Tiranishti, he does not implicate in any circumstances the convicted person L. Caka, although this evidence could not be taken. Considering his evidence obtained during the pre trial investigation, in no situation has he specified the defendant, but as for the other two witnesses, being confronted with the duty entrusted by the Supreme Court and their failure of questioning those witnesses, although do not report anything concrete about the incident of 21. 07. 1997 against L. Caka, pursuant to Article 4 of the Code of Criminal Procedure, go in favour of innocence. 96.- This should be taken in consideration, therefore we claim to bring to the attention of recourse that in the reviewing process, the Supreme Court entrusted the Court of Appeal with the duty to take into account the Unifying Decision of the Supreme Court No. 05 dated 07.02.2001 where, inter alia, it provides the following guidance: "TAg yWZoZaZ //roggyy co/%ZwcZg(T zArowgA rgvZgw A MoZ /MgrgZy a rgvZgwZMg //roggyy /A zAg Marrow ygMyg q / zAg wor^i q /a /»rgvZowy //roggyy AwZ Ay ZAg g/%Z q / ZZ, zAg oowrZ, q/Zgr AavZMg adAzZMZyZgrgfT a/%Z gvaZwaZgb/acZy, gZrow/MyZaMggy a/%Z gvZbgMgg wAZcA arg MgwZy /»rgygMZgb Ay ZAg ZZZZgaMZy, ZoggZAgr a/%Z ZM Aar/MOMy wZZA ZAg gvZbgMgg, gZrow/MyZaMggy aW /acZy afTmZMZyZgrgb aW gvaZaaZgb Ay ZAg gW q / zAg //rgvZowy ZrZaZ, /May rgacA 97.-In paragraph 110 of the decision, the European Court of Human Rights, always considering it in the framework of irregularity of the process and procedural safeguards of 27 DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 the applicant and vague evidence regarding the guilt of the defendant, in paragraph 110 of the decision referred to the decision of the Supreme Court, page 14, providing as follows: “110. The Court notes that four witnesses gave evidence in favour of the applicant before Berat District Court (see paragraph 20 above). Since all acts of the Berat District Court were validly transferred to the Fier District Court, the applicant could not have been g%pgctg<7 to rgqwg?f f/zezr attgzzr&zzzgg. Fzgr District Court gjcciWe^ t/zeir evidefzce w/zg/z it deiivere(f its fwd^zMgMt, wit/zowt /zrovi^izzg ozzy reasons. TTze Govern/nent (W not /zutforward a?zy argw/Mgfzts /wsti/yizzg swc/z gxciusiozz. fPTzzYg t/ze Court cannot speculate as to t/ze respective zz/qzortazzcg o f fâctzzaZ eienzents, t/ze triai court LÜsregarcigLi, without any yusti/icaPon, aii witness evidence in favour o f tize appiicant, wizose evi^nce was cieariy of so/ne reievance to tize case, anri consequently to tize furfgnzent. 98.-The whole position and duties of the Supreme Court are in full harmony with the observations and recommendations of the European Court of Human Rights and this fact is also demonstrated in page 6 of the Decision, Paragraph 4 of the Supreme Court Decision, providing as follows: "In our legal system ECHR has exclusive power for the treatment offundamental human rights. Such a power is accepted by our domestic legal order for the purpose of implementation of Article 122 of the Constitution but also of its Article 17/2, which imposes the obligation that ECHR decisions are directly enforceable. " 99.-Yet, it must be emphasised that in the conclusions presented at the Court of Appeal, when referring to the failure to bring some prosecution witnesses to be questioned and confronted in a hearing, the prosecutor had a positive deliberation, leaving the court discretion to evaluate evidence, when he stated: "TVze rest of issue,? are re/afe^ to f/ze eva/uafzofz of evz^ezzce. You are aMe to do so. The investigation and trial file are available in front of you. 100- In conclusion, as defence lawyers we recommend that based on the conclusions drawn by the European Court of Human Rights and the duties established by the Supreme Court for review, with the good will and in respect of the Constitution, European Convention for the Protection of Human Rights and Fundamental Freedoms, we believe that the person defended by us, Lulzim Caka is innocent with regard to both charges for which the Court of Appeal found him guilty even after the review, and the decision of the Court of Appeal and of the First Instance Court, subject to this recourse, are prejudiced and should be quashed and the trial should be vacated. Our position is in harmony and in accordance with the observations maintained and reached by the European Court of Human Rights in its decision of 08.12.2009 and the Supreme Court, in its reviewing decision No.75 dated 07.03.2012, describing in detail the duties derived from the conclusions of the European Court of Human Rights. Finally, pursuant to Article 441/c of the Code of Criminal Procedure, we request from the Supreme Court that after bringing the recourse in a judicial hearing, it shall decide: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300323 "On the quashing of Vlora Court of Appeal Decision No. 15 dated 19.12.2012 and of Fier District Court Decision No. 175 dated 11.05.2000, and settling the case without remanding it for review, the vacation of trial against the convicted person, Lulzim Caka” as the criminal prosecution cannot continue and ordering the immediate release of the convicted person from the penitentiary institution, wherever he is. " RECOURSE APPLICANTS DEFENDANT SELECTED DEFENCE LA WYERS Lulzim CAKA Lawyer Qazim GJONI [Signature] [Signature] Lawyer Baftjar RUSI [Signature] [Signed & Sealed] [Republic o f Albania] [Chamber o f Lawyers, Tirana] [Lawyer Baftjar RUSI] [License No. 575] [Address: Bulevardi "Gjergj Fishta" Kutta 1 e Pallateve te Shoqerise "Gora" Kati II-te] DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 REPUBLIC OF ALBANIA VLORA COURT OF APPEAL RegisterNo.il Decision No. 15 Reg. Date 28.06.2012 Date 19.12.2012 DECISION "ON BEHALF OF THE REPUBLIC" Vlora Court of Appeal comprised of: JUDGE: ALMA LIÇAJ MEMBER: HYSEN SALIKO MEMBER: ANDI CIVICI Assisted by secretary Belinda Mucaj, on 19.12.2012, at the judicial hearing, in the presence of the Appeal Prosecutors Pelivan Malaj and Aleksander Goga, took into consideration on the Second Instance, criminal case Act no.l 1, belonging to the following parties: DEFENDANT : LULZIM CAKA, represented on trial by lawyers Baftjar Rusi and Qazim Gjonaj. CHARGED: For committing the criminal offences of attempted "Murder with intent due to the special qualities of the victim" acting in collusion, provided for in Articles 79/c, 22, 25 of the Criminal Code, "Murder" of citizen Pellumb Emini, provided for in Article 76 of the Criminal Code and "Illegal possession of firearms", provided for in Article 278/2 of the Criminal Code. The District Court of Fier, based on decision no. 175, dated on 11.05.2000, decided: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 "To find the defendant Lulzim Caka guilty of the criminal offence of "Murder with intent" of citizen Pellumb Emini and pursuant to Article 76 of the Criminal Code to sentence him to 20 years imprisonment. To find the defendant Lulzim Caka guilty of the criminal offence of attempted "Murder due to the special qualities of the victim", acting in collusion, and pursuant to Article 791c, 22, 25 of the Criminal Code to sentence him to 25 years imprisonment. To find the defendant Lulzim Caka guilty of the criminal offence of "Illegal possession of firearms" and pursuant to Article 278/2 of the Criminal Code, to sentence him to two years imprisonment. Pursuant to Article 55 of the Criminal Code to sentence defendant Lulzim Caka with one single final conviction to 25 (twenty five) years imprisonment. His sentencing commences from the date of his arrest on 18.03.1998. Seized exhibits: handguns and automatic weapons to be confiscated by the state, the motorcycle to be returned to the defendant, the mask and hat are to be destroyed". Against the decision, following the reinstatement of the appeal’s time-limit, the defendant Lulzim Caka lodged an appeal, requesting the judicial decision to be quashed and the case to be vacated,presenting the following reasons: • I disagree with the decision and I oppose it as unfounded in evidence and law, because it was taken against the material and procedural law. • The defence counsel and myself were prevented from our right to question witness Arben Frasheri during the hearing dated 24.02.2000. • At the hearing dated 11.05.2000 I was not given the possibility of a defense, on the contrary I was obligated not to defend myself as the court knew that my defence lawyer was out of the district. • I didn’t know citizen Pellumb Emini and I did not kill him; the testifying witnesses only give hearsay evidence based on assumptions. • In regards to the criminal offence of murder due to the special qualities of the victim, I clarify that about one month before the 18.03.1998, I was tried by the Berat District Court and was found not guilty. • On 18.03.1998 my friend Xhevair Cela and I were riding a motorcycle toward Ura Vajgurore for personal business. We had no firearms with us. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 • The evidence of witness Ilir Ngresi and other witnesses, as well as the reasoning part of the judicial decision, are clear fabrications which misrepresent the reality of this case. • Whilst riding my motorcycle and having both my hands on the handlebars, even if it was accepted that I had a firearm, it would not have been possible for me to shoot one. • I was riding, when the police led by Ilir Ngresi set up a position where they shot at me, whilst I was approaching. VLORA COURT OF APPEAL • After hearing the report of judge Alma Liçaj, • The defence and defendant Lulzim Caka, who requested the judicial decision to be quashed and a vacation of the criminal case against him, • The Appeal Prosecutors who requested for the decision to remain in power, • And after discussing the case in its entirety, OBSERVES Decision no. 175 dated on 11.05.2000 of the Fier District Court was a result of the right application of the criminal law based on evidence, in regards to the judicial qualification of criminal offences and to the type and measure of the conviction applied, and as such will remain in power. Based on the content of the judicial file, it has resulted that the Prosecution at the Berat First Instance Court registered the Criminal proceeding, and the charges against defendant Lulzim Caka were sent for trial, he was charged with committing the criminal offences of attempted "Murder with intent due to the special qualities of the victim", acting in collusion, provided for in Articles 79/c, 22, 25 of the Criminal Code, "Murder" against citizen Pellumb Emini, provided for in Article 76 of the Criminal Code and "Illegal possession of firearms", provided for in Article 278/2 of the Criminal Code. The above- mentioned case was tried by the Berat First Instance Court until 13.04.1999, on this date, based on the decision dated 05.03.1999 of the Criminal College of the Cassation Court of Tirana, it was decided to transfer the trial of this Criminal case from the Berat District Court to the Fier District Court. The case was then tried by the Fier District Court, which based on decision no. 175 dated 11.05.2000 decided to find the defendant guilty according to the charges, and his total final sentence was to 25 years imprisonment. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 In regards to the defendant’s appeal, which was requested within the time-limit, based on decision no. 153 dated on 03.07.2000 by the Fier District Court, the case was considered by the Vlora Court of Appeal, which based on decision no. 174, dated on 20.10.2000, decided to leave in power decision no. 175 dated 11.05.2000 of the Fier Judicial District Court. In regards to the defendant’s recourse, against the decision of the Court of Appeal, the First Instance Court and the Supreme Court, based on decision no. 498, dated 12.10.2001 (at the consultation chamber), has decided not to accept the recourse. Furthermore the defendant has addressed the Constitution Court, seeking: "Abrogation on unconstitutional grounds of the three aforementioned decisions and the return of the case to the first instance for reconsideration, with another panel". The Constitutional Court, in its decision no. 200, dated 18.11.2003, decided: "Not to transfer to the plenary session, by declaring the case outside of its jurisdiction". The defendant Lulzim Caka, having exhausted all legal means within the Country, then addressed the European Court of Human Rights, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedom, requesting his application be admitted for a breach of Articles 6/1 and 6/3 of the Convention. The case was registered in this Court, and after passing in plenary session, the European Court of Human Rights (Fourth Section), dated 08 December 2009, amongst other things decided: 1. “To declare the appeals concerning Article 6 of the Convention admissible and the remainder of the request as inadmissible. 4. Believes that there was a breach of Article 6/1 in conjunction with Article 6/3 (d) of the Convention as regards the failure to produce witnesses O.Q. and S. in the judiciary process of the applicant. 5. Believes that there was a breach of the Article 6/1 in conjunction with Article 6/3 (d) of the Convention as regards the failure of the panel to take into consideration the evidence of four witnesses given in favor of the applicant at the Berat District Court; 6. Believes that there was a breach of Article 6/1 in conjunction with Article 6/3 (d) of the Convention as regards the failure to produce witnesses B.C. and D. in the judiciary process of the applicant: DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 The defendant and his counsel did not appeal this decision to the Grand Chamber, nor did the Albanian Government within 3 months from the date when the decision was communicated by the European Court of Human Rights, the decision therefore turns out to have become final. Upon receiving the final decision, on 16.07.2010 the applicant, through his counsel, submitted to the Supreme Court a request to review Decision no. 175, dated on 11.05.2000, attaching to this request for review the final decision of the European Court of Human Rights and the other accompanying acts, seeking quashing of the Supreme Court decisions in all parts and suspension of the execution of this decision. The Criminal College of the Supreme Court concludes that the request for review must be admitted, as it is in accordance with the criteria of the Code of Criminal Procedure and the European Convention for the Protection of Human Rights, with practice and jurisprudence of the Constitutional Court and European Court. In regards to the above-mentioned based on decision no. 00-2012-750 (75) dated 07.03.2012 it was decided "To admit the request for review, deciding to quash decision no. 498 dated 12.10.2001 of the Criminal College of the Supreme Court and decision no. 174 dated 20.10.2000 of Vlora Court of Appeal and to send the case for retrial to the Vlora Court of Appeal with another panel". Based on the decision of the Supreme Court it was concluded that, referring to the content of the European Court of Human Rights decision dated 08.12.2009, for the Vlora Court of Appeal that retries the case, it must evaluate some of the evidence administered during the trial at First Instance and to call witnesses to give evidence, as defined in this decision of the European Court of Human Rights. According to the specifications of Article 440 of the Code of Criminal Procedure, the Court of Appeal applying the responsibilities defined in the decision of the Supreme Court, partially repeated the judiciary investigation for collecting new evidence as defined in this decision. After the retrial of the case, the partial repetition of the judiciary investigation and the enforcement of the duties defined by the decision of the Supreme Court, from the entirety of the administered evidence, the following factual circumstances have resulted as being proven: On 18.03.1998 Police Forces from the Berat Police Commissariat organised and conducted planned searches for firearms and wanted persons, by setting up at various locations in Berat town, checkpoints with police officers of the public order and Rapid Interventions Forces, one of which was set up in the vicinity of the petrol station of citizen Nadir Shehu near Pobrat village of the Municipality of Kutalli, on the Berat - Fier road axis. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 At approximately 14.30hrs on the 18.03.1998 a Honda type motorcycle was approaching the vicinity of this checkpoint where police officers saw two armed unknown men to them until that moment. After a stop signal by the first checkpoint, the people on the motorcycle accelerated their speed very quickly trying to escape. In the meantime other police officers were notified on the radio by the first checkpoint that two armed persons were coming in their direction, it was later found to be the defendant Lulzim Caka, and his passenger citizen Xhevahir Cela that were riding the motorcycle. When the two citizens approached the next police checkpoint, defendant Lulzim Caka and citizen Xhevair Cela opened fire with automatic weapons against the police. Under these conditions the police officers, being under the volley of bullets from the defendant and his male friend, returned fire against them. As a result of the return fire by police, citizen Xhevahir Cela was killed, the motorcycle fell over, whereas defendant Lulzim Caka making use of the area he knew very well crossed over to the other side of the road and into a canal where he continued shooting at the police officers. When his bullets ran out and he was wounded and too weak to continue, defendant Lulzim Caka, threw his automatic weapon onto the ground somewhere nearby, this was found by the police officers that arrested him. The above-mentioned circumstances of the facts were proven by written submissions, forensic evidence, and the evidence given by witnesses during the trial. Therefore, according to the declarations of the witness, Ilir Ngresi, who was on duty as the Chief of the Berat Police Commissariat on the day of the incident; he confirmed that on that day he was leading an operation for a general search for wanted persons and persons in possession of firearms. He was located at the second checkpoint and exchanged fire with the defendant, who was insulting and shooting in the direction of the witness, he survived by luck and from calls of his colleagues "He is going to kill you chief, don’t stand up", as at that time only a short distance of motorway separated the defendant from the witness, a fact that helped the witness Ilir Ngresi not to forget the face of the defendant Lulzim Caka. The witness Ilir Ngresi gave an explanation that he previously knew the defendant Lulzim Caka due to his duty as the Chief of the Berat Police Commissariat. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 The witness Gentjan Musabelliu as well, on duty as the criminal police Inspector of the Berat Police Commissariat on the day of the incident, explained that when he was at the second police checkpoint at the Pobrat village petrol station they were shot at by weapons fire from the other side of the road and they took cover positions to escape the shots. At the road the witness heard a voice from the canal shouting "Do not approach otherwise I will kill you" and he continued to shoot toward the police officers who returned fire. When the exchange of fire stopped from both sides, the witness Gentjan and the witness Ilir Ngresi crawled along the ground and checked the canal. It was this witness in particular who caught the defendant by pointing his gun to the defendants head. The defendant threw his gun away to the side of canal, some distance away from him; he then placed his hands up and said "I’m Lul Caka". According to the witness Arben Frasheri, on duty and Former Chief of Criminal Police at the Berat District Police Commissariat, explained that when the defendant and his male friend rode the motorcycle through the first checkpoint, where this witness was located, they were armed and they responded to the police calls to stop by fleeing the scene. The claims made by the defendant that at the hearing on 24.02.2000 he was prevented of the right to ask the witness Arben Frasheri questions are not founded, because based on the official records of the judicial hearing it results that the defendant put a question to the witness, to which the witness answered. However, the counsel for the defendant expressed that they did not have any question for the witness, and after the evidence of the witness was rejected by the prosecutor, the counsel requested to put questions to him, a procedure which rightfully wasn’t permitted by the court. The Supreme Court in its decision has assigned responsibility that evidence of the witnesses Namik Cela, Ardian Dogani, Gramoz Dogani and Luftar Caka must be taken in consideration. According to the evidence given to the court at the judicial hearing dated 23.12.1998, it results that the witness Namik Cela, stated that, on the day of the incident he was visiting his brother Mestan Cela, together with Xhevair Cela, brother Mezstan Cela and Edmond... Mondi was the son of Xhevahir’s paternal aunt... His brother’s son, Lorenc Cela, comes and says to Xhevo that someone was looking for him. We didn’t get out, but Lorenc was going to accompany him... 5-10 minutes later my sister-in-law takes a look in front of the house, 50 meters away, there was a man with a hood. We went out to take a look. They said, it’s the police and we then went in. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 We heard shots coming from the direction of Pobrat village... (Xhevahir) did not have anything with him, and I did not see anything, he may have had a handgun in his pocket. The witness Luftar Caka, gave evidence at the hearing that he was on the bus on the day of the incident. According to the explanation of the witness "I met Luli (the defendant) when I was returning from Strum to Kutalli, at 14.00-14:30 in the afternoon. Lulzim overtook the bus on which he was on his motorcycle. Behind him was Xhevahir Cela. I recognised Luli because he waved his hand at me. At Pobrat there was a confrontation with the police. There were firearm shots when the bus stopped. I didn’t see what was happening outside; I don’t know where the shots were coming from. The witness Ardian Dogani, explained that on the day of the incident he was on a bus. During the journey Lulzim overtook the bus with a small motorcycle. According to the witness "Approximately over 1 km away from the petrol station I saw Lulzim, the defendant, with another person. I heard the shots but I didn’t see anything. I was so scared and I didn’t see anything or if he was carrying something in his hands or not. I didn’t see the victim carrying something in his hand." The witness Gramoz Dogani, who was also travelling by bus on the day of the incident on 18.03.1998 in the same direction of the road where the defendant was travelling with citizen Xhevair Cela, gave evidence to the Court that he didn’t see if the deceased Xhevahir Çela and the defendant Lulzim Caka had any guns with them. On evaluating the evidence given by the witnesses Namik Çela, Ardian Dogani, Gramoz Dogani and Luftar Caka it has been considered as reliable evidence in regards to the incident, only for that part, which corresponds with the other evidence given by the witnesses Ilir Ngresi, Gentjan Musabelli, Arben Frasheri, and other witnesses through which it is proved that the defendant and his friend Xhevahir Cela, were travelling by motorcycle on the day of the incident. But the evidence is not considered of evidential values, in regards to the fact that the defendant and his male friend Xhevair Cela had firearms with them, because their evidence did not correspond and was not in harmony with other evidence submitted during the trial. Firstly, none of the witnesses didn’t absolutely exclude the possibility that the defendant or his friend had guns, due to their position (on a moving bus), but they confirm that they did not see if the persons on the motorcycle had any firearm. In the meantime the possession and use of firearms by the defendant and his friend Xhevair Cela has been proven without any doubt not only from the evidence of the witnesses Ilir Ngresi, Gentjan Musabelliu and Arben Shehu, but also from DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 the written and forensic evidence, more accurately from the official record dated 18.03.1998 where the defendant was caught in the act, and the official record of the examination of the scene of the incident dated 18.3.1998, detailing the registered exhibits found at the scene of the incident and concretely many shells. A TT handgun was found under the body of the victim Xhevair Cela with serial no.7582709 and a magazine clip with 6 bullets and one bullet in chamber, the automatic weapon serial no. 20065494 was with two magazine clips, one with 27 and the other with 24 bullets, and a TT handgun was found near the defendant Lulzim with serial no. 12391945 with a magazine clip with 5 bullets and one bullet in the chamber and the automatic gun serial no. 3927 in the fully automatic fire position selected with two cartridge magazine clips, one of which had only 1 bullet and the other 7 bullets. In the same way, based on the official record in regards to the examination of the scene of the incident it results that a black mask was found and a hat with “Reebook" inscription, as well as a handkerchief which had 17 handgun bullets within. In the same way, according to the act of the ballistic expert no. 416 dated 11.04.1998, it was concluded that 7 casings found at the scene of the incident were shot by the automatic gun serial no. 20065494, which was the automatic weapon found under the body of the victim Xhevair Cela and the other 14 bullet casings were shot by the automatic gun serial no. 3927 which in particular is the gun found near the defendant. According to the ballistic expert act no. 49 dated 19.03.1998 it results that the two automatic weapons and the seized handguns were technically functional and had been recently fired. In regards to the claim that the ballistic expert act concludes that these weapons were in the inventory of the Police Forces of Berat, this conclusion must be evaluated in comparison with the circumstances around that time, when after the riots of 1997 many weapons were taken by various citizens from the military and state police ammunition warehouses. The Supreme Court, based on the decision of the European Court of Human Rights, has assigned a responsibility to the Court that will retry the case, to take evidence by questioning the witnesses Sali Callmori, Arben Mesiti and Sokol Duri, whose evidence was not made available by the Fier District Court. To apply this duty, the Court of Appeal requested the above-mentioned citizens to appear as witnesses; however it only produced the evidence given by witness Sali Callmori. According to the evidence of this witness during trial at the Second Instance Court, it results that this witness was a police officer, among many others, located about 400 meters away and didn’t have a clear view of the road. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 According to his evidence "Later on I saw the motorcycle had fallen over after Lulzim Caka was found. I also saw a person who had been killed laying on the ground...I don’t know his name...the defendant was approximately 200 — away from the dead person.." According to the witness, in relation to the reason that he wasn’t questioned as a witness by the First Instance Court of Fier, the witness explained that in August of 2001 he immigrated abroad to Greece and did not leave because he was afraid. According to the witness, he confirmed that he was asked questions in March of 2000 by the Berat Police and he was willing to give evidence, if required to attend by the Court. The Court of Appeal made all the attempts to call and notify the witnesses Arben Mesiti and Sokol Duri, but as it results by the notification letters with Protocol no. 4874/7, dated 05.122012, Protocol no./1125, dated 12.2012, Protocol no. 4874/3, dated 20.11.2012 of the General Directorate of the State Police, letters with Protocol no. 1846/1, dated 02.10.2012, Protocol no. 1846/3, dated 15.10.2002 of the Berat District Police Directorate, and the information from the TIMS system, citizen Sokol Duri (Duro) show he had left for Italy. In relation to citizen Arben Mesiti, there is no information in regards to his location or residence provided by the Judiciary Police Services, or any other information provided by the Ministry of Interior and the General Directorate of State Police, where the witness was a police officer. Under these conditions, also based on the enquiries of the Appeal Prosecutors, the Court of Appeal decided to revoke the intermediate decision of calling these citizens as witnesses, as it was absolutely impossible to achieve that aim, as defined by the decision of the Supreme Court. In relation to the criminal fact, the defendant, during the trial in the First Instance, denied the charges, claiming that it was the police officers waiting in ambush to kill him, a fact that he had learned from a co-villager, namely Kudret Shuku, who had been told by the witness Juljan Kuci. The defendant’s claim is not founded based on the evidence given during trial. Therefore, in order to prove this claim, the First Instance Court called citizen Juljan Kuci to give evidence in court, a former police officer of the Berat Police Commissariat. When he was examined during the trial in relation to this fact, he categorically denied this by explaining that he knew the defendant by sight on the day of incident when he was arrested by police and said "I am Lul Caka." The witness explained that he took part in the police operation on 18.3.1998 near the petrol station of Nadir Shehu, when the defendant Lulzim Caka rode on a motorcycle with another person, armed, and whilst he was approaching the police forces he shouted "Do not come close, you scoundrels". The defendant had long hair and shot at police officers. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 In the same way, according to the statements that were permitted to be read made by the witnesses Nadir Shehu and Burhan Dervishi, it was proved that the defendant in collusion with the victim Xhevahir Cela, carried out the attack against the police forces. Although the witnesses were forced by the police to stay inside the petrol station building, they were able to see the police officers removing the defendant from the scene of the incident and his dead friend’s body, under which they found the gun that he was shooting at the police officers. Based on the content of the Strasbourg Court Decision, dated 06.01.2003, the defendant Lulzim Caka produced a notarized statement by citizen Bashkim Hoxha, the presiding Judge over the bench of the Berat District Court in the judicial proceedings. The above-mentioned decision states that, according to this declaration, "The proceedings had been transferred to the Fier District Court, to the defendant’s detriment, at a point when the Berat District Court had been near the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him. According to this declaration, citizen Bashkim Hoxha maintained the view that the Fier District Court had admitted witness statements obtained at the police station rather than those obtained during the trial before the Berat District Court. He also argued that the Fier District Court had not considered a ballistics report submitted during the trial before the Berat District Court, from which it was proved that the automatic guns allegedly used by the applicant, belonged in fact to the Berat Police Force. Furthermore, he stated that the applicant’s counsel had withdrawn from defending him during the trial before the Fier District Court as a consequence of the threats to their lives and those of their families". In regards to the notary declaration, the Court of Appeal considers this declaration with no evidential value of what it is seeks to prove, evaluating it as a personal declaration, also based on personal evaluations, with no legal value, that is not supported by any written evidence or administered witnesses. There was no evidence from the submissions where the defendant’s counsel has withdrawn as a consequence of threats to their lives or those of their families presented to the court or the judge who has made this declaration. In regards to the evaluation of the witness evidence or the ballistic report, the evidence was tried and weighted during the trial at the First Instance Court of Fier as well as during retrial at the Court of Appeal, in comparison with and in unity with the rest of evidence. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 In regards to the defendant’s claim that the seized mask at the scene of the incident did not belong to his deceased friend, who was killed with a bullet to the forehead, suggesting therefore this mask should have a hole there, this fact rightfully has not been considered important to prove the charges against the defendant, since the witnesses that were asked questions during trial did not clarify what position Xhevair Cela was wearing the mask. In regards to the charge of "murder with intent" against citizen Pellumb Emini provided for in Article 76 of the Criminal Code during the trial at the First Instance and Appeal, the following factual circumstances have resulted as being proven: On 21.07.1997 the defendant Lulzim Caka was present at the car wash named "Sadiku", in the district of Lushnja where victim Pellumb Emini also went to wash his car. The defendant had an argument with him over the queue at the car wash. The argument got aggravated as the victim slapped him with his hand and the defendant went to his car from where he secured an automatic weapon and shot at Pellumb Emini, who responded by also shooting at the defendant with a handgun. But, as a result of the shoots exchange there was only one unknown pedestrian who was accidental wounded. The victim Pellumb Emini left on foot because he had abandoned his car there, he returned in another vehicle accompanied by an unknown person, but as soon as they arrived there, having not even gotten out of the car, he was shot by the defendant by a volley of shots with an automatic weapon. In regards to this charge at the judicial hearing, the First Instance Court heard the evidence of citizen Zenepe Hamiti, which explained that citizen Isuf Nurce, who has now passed away, told her that her brother was killed by the defendant Lulzim Caka. The evidence of this citizen, even though it cannot be confirmed by the personal declaration of citizen Isuf Nurce as he had passed away, is evaluated by the Court with full evidential power in relation to the culpability of the defendant Lulzim Caka, for committing the criminal offence of "murder with intent" of the citizen Pellumb Emini, because in accordance with Article 154/4 of the Code of Criminal Procedure, the witness gave an explanation as to the source of the evidence and her declarations are in full harmony and in accordance with the statements made at the investigating authority by the witnesses Arben Sadiku, Todi Tiranishti and Agron Kiptiu, as well as the scientific evidence, the ballistic expertise act DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 no. 416 dated 23.08.1997, the official record of the examination of the scene of the incident dated 21.07.1997, etc. In this way, according to the statements on 29.10.1997 to the Judiciary Police, citizen Arben Sadiku explained that the person with the white Mercedes was from Berat and his name was Luli and the other one from Fier was called Lumi but he did not know either of their surnames. He saw that they were shooting at each-other but left the carwash immediately and only returned there in the afternoon where Todi Tiranishti told him that the person from Fier was killed by a guy with long hair. The citizen Todi Tiranishti when questioned by the investigating authority on 15.09.1997, explained that from the place where he was, he saw two automatic weapons were firing shots towards a stationary car at the car wash, and he immediately went inside a shop unit. When the attack finished the two persons who were shooting the guns approached him and asked him to see if the person that they shot was dead or not. When the witness saw that the victim was not moving he told this fact to the two people that shot the victim, who then left the crime scene. According to the statement given by citizen Agron Kiptiu, an eye witness at the scene, when questioned on 06.10.1997, he gave an explanation in relation to the conflict between the defendant and the victim due to the carwash queue. This witness was an employee at the carwash of citizen Fatmir Sadiku and specified that "it was around 9.00-10.00 in the afternoon when the defendant came to the carwash in a white Mercedes and the victim in a black Mercedes. After the initial argument he saw the victim placing his hands round the defendant’s neck and scratching him. In order to separate them Arben Sadiku and two other persons tried to stop Luli from Berat shooting the victim. This witness specified his position in between the defendant that was shouting "Move away because I will kill him" and the victim. In order to escape the bullets the victim hid in a building that was under construction near to the carwash. On the following day, a friend of his namely Saimir Cerriku visited him at his house and told him that Luli from Berat killed the one from Fier". Referring to the disposition of point 6 of the decision by the European Court of Human Rights, were it is concluded that: "6. Holds that there has been a violation of Article 6/1 in conjunction with Article 6/3 (d) of the Convention as regards to secure the appearance at the applicant’s trial of witnesses B., C. and D. ", the Supreme Court has assigned a responsibility to the Court of Appeal to DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 call and hear the evidence of citizens Todi Tiranishti, Arben Sadiku and Agron Kiptiu. In regards to the above, The Court of Appeal made all the attempts to call and notify the witnesses, but as it resulted by the notification letters with Protocol no. 3603/1, dated 11.10.2012 of the Police Commissariat of Lushnja, the official record dated 01.10.2012 prepared by the Judicial Police Officers to notify the witness Arben Sadiku, the official record dated 01.10.2012 prepared by the Judicial Police Officers stated in relation to the notification of the witness Agron Kiptiu the official record dated 10.10.2012 prepared by the Judicial Police Officers. For the notification of the witness Arben Sadiku, the official record dated 10.10.2012 prepared by the Judicial Police Officers for the notification of the witness Agron Kiptiu. The witness Agron Kiptiu has emigrated abroad to Greece, and the witness Arben Sadiku has emigrated abroad in Turkey. In relation to witness Todi Tiranishti, according to death certificate no. 003634213 dated 12.09.2012 produced by the defendant’s counsel, it results that this witness passed away on 31.07.2010. Under these conditions, as well as based on the enquiries of the Appeal Prosecutors and defence, the Court of Appeal decided to revoke the intermediate decision of calling these citizens as witnesses, as it was absolutely impossible to achieve that aim, as defined by the decision of the Supreme Court. In regards to the above-mentioned, the Court of Appeal has rightfully concluded that the defendant Lulzim Caka has entirely committed the elements of the criminal offences of attempted "Murder with intent due to the special qualities of the victim", acting in collusion, provided for in Articles 79/c, 22, 25 of the Criminal Code, "Murder with intent" against the victim Pellumb Emini, provided for in Article 76 of the Criminal Code and "Illegal possession of firearms", provided for in Article 278/2 of the Criminal Code". The defendant Lulzim Caka, having direct intention and through active illegal actions, with the firearm he possessed without the permission of the competent state authorities, in collusion with citizen Xhevair Cela, fired shots in the direction of the police forces, being both in the role of the executors, aiming and intending to kill them, but due to circumstances independent of their will, there were no consequences. The defendant and citizen Xhevair Cela acted in collusion with each-other by coordinating the actions between them. The defendant Lulzim Caka held the role of the executor, whilst riding the DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 motorcycle with one hand and shooting a gun with the other one, whereas citizen Xhevair Cela, situated behind the motorcycle, fired shots against the police forces. Through his actions the defendant violated the judicial relations placed by the law for the protection of life and health of the people and State Police officers, whose life and health is specially protected by the criminal legislation due to their special qualities; qualities which were known to the defendant and his friend. In the same way, the defendant Lulzim Caka, due to a spontaneous indecent argument about the carwash queue, with a firearm he possessed without the permission of any competent state authorities, aimed and completed all the actions to murder the citizen Pellumb Emini, causing this citizens instant death. Through his actions the defendant violated the judicial relations placed by the law for the protection of life and health of the people, especially protected by the criminal legislation. The decision is fair in relation to the length of sentence applied to the defendant Lulzim Caka. In the function of the individualisation of sentence, the Court of Appeal takes into consideration the high social danger of the criminal offences for which the defendant has been charged, their high social danger and the importance of this fact. The Court of Appeal in determining the conviction, also takes into consideration the guidelines of the foreseen conviction for the criminal offences of attempted "Murder with intent due to the special qualities of the victim", acting in collusion, provided for in Articles 79/c, 22, 25 of the Criminal Code, "Murder", provided for in Article 76 of the Criminal Code and "Illegal possession of firearms", provided for in Article 278/2 of the Criminal Code". It takes into consideration the severe consequences resulting from the criminal offence (the death of one person), the motive and purpose for committing the criminal offences, the fact that the first criminal offence was an attempt, the closeness of the final outcome, and the denying attitude held by them for the criminal offences they committed. In regards to the mitigating and aggravating circumstances provided for in Articles 48, 49 and 50 of the Criminal Code, the court concludes that there are no mitigating circumstances to be taken in consideration for the individualisation of the conviction for the defendant Lulzim Caka. As an aggravating circumstance the court notices the one provided for in Article 50/gj, which is the criminal offence of "murder with intent due to the special qualities of the victim", acting in collusion. DH-DD(2013)392 : Applicants' representative in Caka group against Albania. Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. TE1300322 Under these circumstances the Court of Appeal concludes that the conviction of the defendant Lulzim Caka to 25 years imprisonment for the criminal offence of attempted "murder with intent due to the special qualities of the victim", acting in collusion, to 20 years imprisonment for the criminal offence of "murder with intent" against citizen Pellumb Emini and to 2 years imprisonment for the criminal offence "Illegal possession of firearms" and finally with the unification of the sentences to 25 years imprisonment, not only will it achieve its purpose to punish the perpetrators of the criminal offences, but will also achieve its function to prevent in general and educate the others with the spirit of implementing the law. FOR THESE REASONS Vlora Court of Appeal, pursuant to Article 428, letter «a» of the Code of Criminal Procedure DECIDES To leave in power decision no. 175, dated 11.05.2000 of the District Court of Fier. Vlora, 19.12.2012 MEMBERMEMBER PRESIDING HYSEN SALIKO ANDI CIVICI ALMA LICAJ Signature Signature Signature [Tax Stamp] [100 AL Leke] [Republic o f Albania]