THIRD SECTION
CASE OF ÇUPI v. ALBANIA
(Application no. 27187/08)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
14 November 2023
 
This judgment is final but it may be subject to editorial revision. In the case of Çupi v. Albania,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 27187/08) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2008 by an Albanian national, Fatmir Çupi, born in 1986 in Mirëditë (“the applicant”) who was represented by Mr S. Zeqiri, a lawyer practising in Tirana;
the decision to give notice of the complaints under Article 6 §§ 1 and 3 (c) of the Convention to the Albanian Government (“the Government”), initially represented by their Agent, Ms A. Hiçka, and subsequently by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 17 October 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he was convicted on the grounds of statements made without a lawyer.
circumstances of murder on 9 june 2004
2. On 3 June 2004 the applicant, his cousin E., and a friend B. went into hiding on the outskirts of Kaçinar. 3. On 5 and 6 June 2004 they stayed with a member of E.’s family and shared a room with the seventeen-year-old son of the household, F. They were carrying weapons and on the evening of 5 June 2004 F. heard the applicant and E. talking about killing “the old one” and “the young one”. According to statements made later by F. (see paragraph 9 below), the applicant expressed his support for E. carrying out the plan. 4. On 6 June 2004 F.’s fifteen-year-old friend Gj. visited the premises and heard E. talking about “finishing off” the local police officer. During this discussion the applicant had nodded in approval and had stated that he was with E. in all his actions. 5. On 9 June 2004, B. had gone out to buy groceries and had seen the police officer in question. B. informed E. and the applicant of that, and the applicant reportedly told E.: “Leave it, don’t go”. However, E. went out alone looking for the officer and then shot both him and his son dead. Following E.’s return home, the three of them fled to the mountains.
criminal investigation
6. On 27 June 2004 the applicant gave himself up and was remanded in detention. On the same date he made statements to the police as a person accused of aggravated murder, in the absence of a lawyer. The introductory part of the record of his questioning stated that the applicant had completed the compulsory eight years of schooling and was unemployed. The part of the record concerning the presence of a lawyer read as follows:
“[Officer:] You stand accused of aggravated murder and illegal possession of firearms and [have been informed], pursuant to Article 158 of the CCP [Code of Criminal Procedure] [which excludes family members of the accused from the obligation to testify], of your right to give explanations or not to do so. Do you wish to take advantage of this right and [the right to] a lawyer?
[Applicant]: I do not have a lawyer and I will speak to my father later on to see whether he can get me one. As regards the question put by you, I understand [it] and declare that I agree to give explanations now.”
7. The applicant provided the officers with a detailed account of his activities with E. both before and after the murder. He stated that several days prior to the murder, fearing that the police officer in question was looking for them, the applicant, E. and B., had gone into hiding. On the critical date E. had been informed by B. that the officer was nearby. Subsequently, E. had gone out alone looking for the officer and had shot both him and his son. Lastly, the applicant provided a detailed account of how they had survived in the mountains after the murder. 8. On 28 June 2004 E. stated to the police officers that the applicant had approved the idea of murdering the police officer and had expressed readiness to take part in it. E. also said that on the critical date the applicant had told him “Leave it, don’t go” (see paragraph 5 above). 9. On 14 July 2004, F. and Gj. made statements to police, outlining the events as described in paragraphs 3 and 4 above. The trial
10. On an unspecified date Mr S. Zeqiri, who is representing the applicant before the Court, accepted to represent the applicant in the domestic proceedings. It appears that in view of the applicant’s poor financial situation the representative did not ask for payment in advance (see paragraph 53 below). Neither did the parties sign a written agreement about fees. 11. On 8 November 2004 the prosecutor committed the applicant, E. and B. for trial before the Serious Crimes District Court (“the District Court”). The applicant was charged with illegal possession of firearms and aggravated murder of a minor and a police officer under Article 79 §§ (a) and (c) of the Criminal Code (see paragraph 22 below). 12. The District Court heard a number of witnesses, including F. and Gj., who testified that they had heard the three accused discussing how they would settle an outstanding matter with a police officer. The court granted a request by the prosecutor to have the juvenile witnesses’ statements of 14 July 2004 read out in court and included in the case file for the purposes of complementing their testimony to the court. 13. The applicant asked the court to exclude from the case file his statements of 27 June 2004 made in the absence of a lawyer (see paragraphs 6 and 7 above). The court rejected the request, finding that he had waived his right to a lawyer. The court held, moreover, that the statements made by the applicant during the investigation should be included in the case file in order to rebut the applicant’s testimony given during the trial. 14. In addition, the court admitted a statement made by E. on 28 June 2004 (see paragraph 8 above). 15. The applicant denied the charge of murder and maintained that it should be reclassified as “failure to report a crime” and “supporting a criminal offender”. 16. On 7 October 2005 the District Court found the applicant guilty as charged and sentenced him to twenty-five years’ imprisonment. The court stated that, while the applicant had not participated in the commission of the murder, his assistance, by way of being present, accompanying and offering support and advice, had given E. the courage and confidence to commit the offence. It further considered that the juveniles’ testimony during the trial needed to be analysed in conjunction with the statements they had made on 14 July 2004, during the investigation (see paragraphs 9 and 12 above). In view of that evidence, as well as E.’s statements during the investigation, the court concluded that the applicant’s conversations with E. demonstrated that he had entered into a clear agreement to help murder the police officer and his child. Lastly, the court concluded that certain relevant events had been established through a number of sources, including the applicant’s own statement of 27 June 2004. 17. The applicant appealed, arguing, among others, that on 27 June 2004 he had been questioned without a lawyer being present. 18. On 29 December 2005 the Serious Crimes Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction, but reduced the sentence to twenty-two years’ imprisonment. In reply to the applicant’s arguments, the court stated that the applicant had consented to being questioned in the absence of a lawyer and that his statement had been examined in the light of the other evidence in the case file. In addition, it found that the minors’ statements of 14 July 2004 had been taken in compliance with domestic law. 19. On 15 November 2006 the Supreme Court upheld the Court of Appeal’s decision. It further reduced the applicant’s sentence to twenty years’ imprisonment. 20. On an unspecified date, the applicant lodged a constitutional complaint. In addition to his previous arguments he stated that on 27 June 2004 he had not had sufficient means to afford a lawyer and that the authorities should have appointed a State-funded lawyer to assist him. 21. On 18 December 2007 the full bench of the Constitutional Court dismissed the complaint. The court found that on 27 June 2004 the applicant had not requested legal assistance. Had he made such request the authorities would have been under an obligation to appoint a State-funded lawyer as required by 296 § 1 of the CCP (see paragraph 28 below). The court also noted that the applicant had consented to giving explanations in the absence of a lawyer, thereby waiving his right to legal assistance.
relevant Domestic law
22. Article 79 §§ (a) and (c) of the Criminal Code, as in force at the material time, provided that the intentional murder of a minor or a police officer amounted to aggravated murder and carried a sentence of life imprisonment with a minimum of twenty years. 23. Article 34/a § 2 of CCP, as in force from 1 August 2017, requires the authorities to provide a suspect with a written “letter of rights” containing information about his or her defence rights, including the right to remain silent and the right to a lawyer of the suspect’s own choosing or free legal assistance subject to certain conditions, before the first questioning takes place. 24. Article 49 §§ 1 and 2 of the CCP, as in force until 1 August 2017, read:
“1. A defendant who has not chosen a lawyer or who has been left without one shall be assisted by a lawyer appointed by the authority conducting the proceedings, if he or she so requests. 2. When the defendant is under the age of eighteen or has a physical or mental disability that prevents him or her from exercising the right of defence, the assistance of a lawyer shall be mandatory.”
25. The relevant part of Article 49 § 1 of the CCP, as in force from 1 August 2017, reads:
“1. The authority conducting the proceedings shall immediately assign a State-funded lawyer to a defendant who has not chosen a lawyer or has been left without one[,] when:
... (ç) he or she is accused of a criminal offence carrying a sentence of not less than fifteen years;”
26. Article 151 § 4 of the CCP, as in force at the relevant time, provided that unlawfully obtained evidence could not be used in court and that such an exclusion could be made, including of the court’s own motion, at any point in the proceedings. 27. Article 158 § 1 of the CCP, as in force at the relevant time, read:
“1. The following are not compellable witnesses:
(a) individuals who are in a close relationship of consanguinity with the defendant ...”
28. Article 296 § 1 of the CCP, as in force until 1 August 2017, made it mandatory to have a lawyer present during the questioning by the judicial police of a person under investigation. In accordance with the same provision, when a lawyer could not be found or did not attend a questioning, the prosecutor was required to appoint a State-funded lawyer for the suspect.

Outcome for Article 6: violation