SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITE DES MINISTRES

Contact: Simon Palmer Tel: 03.88.41.26.12

Date: 13/10/2011

DH - DD(2011)847E *

Item reference: Revised action plan / revised action report

Please find enclosed a communication from concerning the case of Laska and Lika against Albania (Application No. 12315/04).

* * *

Référence du point : Plan d'action révisé / Bilan d'action révisé

Veuillez trouver, ci-joint, une communication de l'Albanie relative à l'affaire Laska et Lika contre Albanie (Requête n° 12315/04) (anglais uniquement).

* In the application of Article 21.b of the rules of procedure of the Committee of Ministers, it is understood that distribution of documents 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 (CM/Del/Dec(2001)772/1.4). / Dans le cadre de l'application de l'article 21.b du Règlement intérieur du Comité des Ministres, il est entendu que la distribution de documents à la demande d'un représentant se fait sous la seule responsabilité dudit représentant, sans préjuger de la position juridique ou politique du Comité des Ministres CM/Del/Dec(2001)772/1.4).

CASES OF LASKA & LIKA, APPLICATION No. 12 315, JUDGEMENT 20.04.2010, FINAL ON 20.07.2010

1) INDIVIDUAL MEASURES

1. This case concerns the unfairness of criminal proceedings in that the applicants: Vladimir Laska and Artur Lika were convicted essentially on the basis on testimony obtained during an identification parade which was not conducted in accordance with law, by violating Article 6.1 of the Convention. The European Court considered that even though the Puke District Court had acknowledged irregularities at the investigation stage, it nonetheless relied on testimony given under these circumstances. The applicants were sentenced to thirteen years' imprisonment, by judgment of the Puke District Court, which was delivered on 24.05.2002 and became final on 26.12.2002. Applicant Artur Lika is in early release on parole under probation supervision for the rest of his sentence. Applicant Vladimir Laska currently is released1.

2. According to the ECtHR judgment, the violations found in these cases were considered as serious in respect to both factual and legal items. As such, the Albanian party must ensure restitutito in integrum for the reparation of violations to the applicants respectively, aiming to put them as far as possible in the same situation as they were before the violation occurred. The court held that the most efficient redress of violations found, would be the retrial de novo of applicants in order to review the conviction decision for the applicants.

3. In order to provide redress of violations found with regard to individual measures, Albanian Party must suspend the execution of conviction Decision No.64, Date 24.05.2002 of the District Court of Puka according to which both applicants were sentenced by 13 years imprisonment for having committed the criminal offence of “Rubbery with the use of weapons in collaboration, bearing without permission of military weapons” according to articles 140, 25, 278/2 of the Criminal Code and offer redress of the case to the court for retrial de novo.

4. The applicant Vladimir Laska was arrested on date 31.03.2001 and henceforth was sentenced to 13 years imprisonment according to the decision no. 64, date 25.05.2002 of Puke district court. While was imprisoned, he benefited 7 months reduction from his sentence. Also, he asked to be transferred from high security prison of Burrel to another prison of ordinary

1 He is awaited to return in jail in order to serve the rest of his sentence according to appeal court which quashed the decision of district court of Mat that granted to him early release on parole. security. The Mat district court gave consent to his request and decided to transfer him to an ordinary security prison by decision no.116, date 26.12.2006. This decision became final by decision of Tirana appeal court no. 616, date 19.09.2007.

5. The applicant Laska profited early release on parole from the prison of Burrel by decision2 no.2, date 24.02.2010 of Mat district court, according to the criteria set out in article 64 of Criminal Code3, under probation supervision for a period of 3 years.

6. After his release on parole date on 24.02.2010, applicant Laska was remained to serve only 2 years and 9 months + 18 days of his sentence. In the due course, the decision no.2, date 24.02.2010 of Mat district court was quashed by a later decision of Tirana appeal court no.798, date 20.10.2010. Further the applicant lodged recourse before the Supreme Court to suspend such decision. The Supreme Court issued Order no.74, date 31.12.2010 to suspend the appeal court decision until later on came with decision no.119, date 14.01.2011 to leave into force the appeal court decision, by canceling his release on parole. Currently the applicant Laska is in release.

7. The applicant Artur Lika was arrested on date 31.03.2001 and henceforth was sentenced to 13 years imprisonment by decision no.64, date 25.05.2002 of Puka District Court according to articles 140, 25, 278/2 of the Criminal Code4. While was imprisoned, he benefited 6 months sentence reduction. Also, he asked to be transferred from high security prison of Burrel to another prison of ordinary security. The district court of Mat gave consent to his request and decided to transfer him in an ordinary security prison by decision date 7.10.20085.

8. The applicant Lika profited early release on parole from the prison of Burrel date on 25.02.2010 by decision no.12, date 25.02.2010 of Mat district court under probation supervision for the rest of his sentence in jail 2 years, 7 months and 17 days. This decision became final by decision of Tirana appeal court no. 406, date 4.04.2011. Also we inform that the prosecution office has not lodged a request before the Supreme Court against this decision. Currently, the

2 Referring to such decision, applicant Laska has complied with the criteria of early release on parole like as: has served more than ¾ of his sentences in jail; has accomplished his social integration; has accomplished his rehabilitation; he is not a recidivist on committing crimes; his family economic conditions are not sufficient; his parents health conditions are very bad.

3 Article 64 “The prisoner could be released earlier and on bail only for specific reasons, if by his behavior and work tells that by the time of punishment, the purpose of his education is fulfilled, and when he has spent: - not less than ¾ of the punishment for crimes that have the punishment by imprisonment from 5 to 25 years; In the time spent in jail, the timing benefited by amnesty or forgiveness is not counted. It is not allowed to release early and on bail a recidivist convicted for deliberately committed crimes. Early and on bail release is revoked by the court, when the convict of a deliberately committed crime, during on bail period, perpetrates another penal act (on purpose), as much serious or more serious than the first one; in this case, the dispositions of blending the punishments could be applied.

4 Decision became final on date 9.09. 2002 according to decision of Shkoder appeal court no.145, date 9.09.2002

5 Decision which became final on 18.10.2008. applicant Lika is on early release on parole under probation supervision for the rest of his sentence.

9. Also, both applicants Vladimir Laska and Artur Lika has lodged a request on date 15.11.2010 with the Supreme Court through their lawyers based on articles 449, 454 of Criminal Procedural Code, articles 17 and 122 of the Constitution and the judgment of European Court of Human Rights date on 20 April 2010 on application “Laska & Lika v. Albania”, requiring:

x Review of final conviction Decision no.64, Date 24.05.2002 of Puke6district court, according to the European Court findings x Cancelation of the final conviction decision no.64, date 24.05.2002 of Puka district court and fresh consideration of their judgment by the Puka district court by another jury of judges. x Suspension of execution of decision no.64, date 24.05.2002 of Puka district court until the end of proceedings.

10. Artur Lika is currently in release under probation supervision for the rest of the sentence. Vladimir Laska is currently in release, but in condition that should be returned in jail after his request for early release on parole has been quashed by decision of the Supreme Court.

11. Referring to the Constitutional Court ruling no.20, date 1.06.2011, the General State Advocacy by official letter no. 985, date 5.10.2011 has addressed to the Supreme Court the emergency of execution of ECtHR ruling on case “Laska & Lika v. Albania”, to ensure reopening of proceeding de novo, based on the applicant`s request for review of conviction decision no.64, date 24.05.2002 of the district court of Puka.

12. Moreover, from the formal meeting held between General State Advocate with the Head of Supreme Court date 4.10.2011, the latter took note of the fact and confirmed as well that shall proceed as a matter of priority with examination of request lodged with by applicant Laska and Lika, for review of conviction decision, complying with ECtHR ruling for this case. Currently, their request7 is pending before the Supreme Court for examination.

6 The decision was left into force by decision of Shkoder appeal court no.145, date 9. 09. 2002 and decision of Supreme Court no.793, date 26.12.2002.

7 See evidence of request registration in the data system of the Supreme Court. 2) THE GENERAL MEASURES

13. The judgement “Laska & Lika vs Albania” has already been translated into the , has been published in the Official Gazette and has been disseminated to all the domestic courts.

14. Referring to the court`s ruling, domestic authorities, especially the investigation bodies should pay attention to act accordingly regarding the procedures of recognition of persons or material proofs or other objects. A special attention must be paid regarding the qualities of persons or objects for recognition such as colour or clothes which must be as far as possible similar with those of the person/object that must be recognised. This procedural act should be carried out by not leading the recognising person to suggestive elements that might influence him during the recognition of persons/objects. Also, during such procedures the presence of a lawyer in behalf of defendants must be obligatory. If, any of these rules has not been respected by the competent bodies, in contrary to articles 171-175 of Criminal Procedural Code, consequently the proofs provided must be declared as illegal and cannot be used for testimony during the trial.

15. Also, having in mind the rulings of ECtHR, Albanian authorities must ensure the training of judges of domestic courts on criminal judicial proceedings aiming to offer redress to the violations found with regard to the unfairness of judicial proceedings. Further efforts must continue to ensure adequate legal provisions in the domestic legislation by offering effective legal remedies for reopening of criminal proceedings.

16. Bearing in mind the above, the General Prosecution Office8 issued Circular no. 3942/3, dated 27.01.2011, which was distributed to all prosecutors, aimed at introducing guidelines for them in order to prevent similar violations in the future. More specifically, the circular provides for the following instructions: x Guaranteeing of the right of the defendant and of his lawyer to participate in all criminal proceedings whenever deemed necessary. x Guaranteeing of the right to the defendant to be introduced to all facts, evidences, and legal considerations relating to all accuses under his charge. x Strictly applying, according to the law, criminal procedure norms related to taking of evidence, in conformity with the principle of legality. x Guaranteeing of the presence of a defence lawyer for the defendant, whenever required by the procedure law.

8 Find enclosed circular of the General Prosecution Office with Prot no. 3942/3, of 28 January 2011 addressed to Tirana District Prosecution Office 17. The High Council of Justice in his capacity to exercise constitutional and legal supervision over the activity of law domestic courts has carried two thematic inspections9 on the excessive lengths of judicial proceedings. One of the inspections has been finalised with the adoption of a report reflecting the shortcomings identified from the judicial practise. While the report for the other inspection shall be provided soon. The inspection covered the district courts of Tirana, Shkodra, Durrɺs, Vlora, and the District Court of Serious Crimes of Tirana. The report designates also some proposals for legal initiatives concerning the excessive length of criminal proceedings. In addition, the High Council of Justice has established a working group to analyze the immediate problems coming from the implementation into practise of the Law “On advocacy”, by including in the debates even representatives from civil society, General Prosecution Office, the Central Chamber on Advocacy, the Ministry of Justice.

18. General State Advocate has requested to the School of Magistrates to consider the possibility to include in the training curricula specific topics for training judges on issues concerning the ECtHR hitherto judgments related to article 6 of ECHR. Following the foregoing, on 25.02.2011, the General State Advocate participated in a joint meeting with representatives from School of Magistrates, prosecutors, judges, international experts near OSBE and OBDAD, lawyers, representatives of High Council of Justice, and representatives of the Assembly. In the due course, in the session training that will be held on 3 June 2011, the Government Agent shall submit an analytic presentation of the judgments of ECtHR on criminal cases; Xheraj, Berhani, Caka, Laska & Lika.

19. The Albanian authorities have taken initiative to amend the Criminal Procedure Code so as to foresee that ECtHR judgements finding violations constitutes a legal ground for reviewing domestic courts’ final decisions. Albanian Ministry of Justice is the authority in charge for drafting such amendment. Further, Albanian Council of Ministers must adopt this amendment (by the last quarter of 201110). Thereafter, the amendments shall be approved to the National Assembly to become law.

20. Further, the Constitutional Court by judgement No.20, Date 1.06.2011 in consideration of case “Xheraj v. Albania”, has made a very detailed interpretation of article 450 of Criminal Procedural Code, concerning the review of final criminal decisions, maintaining that the Supreme Court has the jurisdiction to provide review of final criminal decisions which based on ECtHR findings have been declared as unfair according to article 6 of European Convention, like as in judgements of EctHR for cases Laska & Lika, Caka, Berhani etc. More concretely the Constitutional Court in its judgement has maintained that:

9 Find enclosed herewith the official letter of Supreme Council of Justice on 783/1, date 20.05.2011.

10 Find enclosed letter of the Ministry of Justice with Prot 422/1, of 10 February 2011adressed to general state advocate.

“.....The interpretation of Supreme Court in its decision no. 1042, date 9.07.2010 is not correct and against the provisions made in articles 122 e 124 of Constitution, and article 46 of ECtHR. The Constitutional Court held that in case there is legislative vacuum, or when the legal provisions do not comply with provisions of the Convention, than the judges of any instances of judiciary, are oblidged to directly implement the judgement of ECtHR11.Therefore, the Supreme Court must avoid any unlawful effect deriving from the quashing of acquital decision of citizen Arben Xheraj.

.... This obligation of Supreme Court is related to its specific competencies for review of final decsions like as its role on the unification of judicial practice. Furthermore, this court complying with article 1 of Criminal Procedural Code, must not be limited to the implementation only of those provisions made in this Code, but also must must act directly implementing the Constitution and European Convention of Human Rights.

...... Apart from that, as far as it concerns the institute for review of final criminal decision, the Constitutional Court maintains that subject to article 450/1/a are considered not only the decisions given by domestic courts of Republic of Albania,but also decisions of foreign international courts, according to article 10 of Criminal Procedural Code which explicitly imposes the court to implement the provisions of international treaties where Republic of Albania is member party.”

3) JUST SATISFACTION

21. The financial execution of the judgment “Laska & Lika vs. Albania”, in the amount of 4800 euro has been paid in favor of applicants respectively. Enclosed herewith please find the decision of Council of Ministers that charges the domestic authorities to carry out the payment of just satisfaction to the applicants. Also you will find all supporting documents provided by the Ministry of Finance on the allocation of the amount and the confirmation of the Bank on the state of the Bank account accorded in this respect.

11në përputhje me nenin 12211 të Kushtetutës dhe nenet 19 dhe 46 të KEDNJ-së