The decision of the Strasbourg Court for the murder of Aleks Nika, who lost his life in the protest of January 21, is overturned. The court has come to the conclusion that there are two violations in this case: the murder and then not investigating the murder.
In the argued decision of the Strasbourg Court, it is also said that there was a violation of the procedural obligation and the essential part of Article 2 of the Convention, a violation of two aspects of the right to life.
PRESS RELEASE OF THE CHANCELLOR OF THE COURT
The Albanian authorities must identify and punish those responsible for the murder of the applicant's relative during the 2011 protest in front of the Prime Minister's Office.
In today's decision1 of the Chamber in the case of Nika k. Albania (request no. 1049/17) The European Court of Human Rights found, unanimously, that there were: two violations of Article 2 (right to life and investigation) of the European Convention on Human Rights.
The case related to the death of the applicants' husband and father after being shot in the head in 2011 during a protest in front of the Prime Minister's Office. During the protest there were violent confrontations between the demonstrators and the authorities. The petitioners alleged in particular that the commander-in-chief of the Republic Guard, in charge of protecting the Prime Minister's Office, had ordered his subordinates to open fire on the protesters.
The Chamber found that the issue of possible chain of command responsibility had not been addressed by the relevant inquiry, which had focused on the individual responsibility of Garda officers rather than the sequence or nature of orders that may have been given by the Garda chain of command. There were also a number of other shortcomings in the investigation, including the deletion of video recordings of the incident and the failure to follow up on some key investigative leads, such as bullet marks found at human height on the iron fence surrounding the Prime Minister's Office. These shortcomings raised suspicions that the authorities had tried to misdirect or interfere with the investigation.
The chamber also found flaws in the legal framework that at the time regulated the use of firearms in the context of mass gatherings, as well as serious flaws in the planning and control of the protest. The domestic authorities did not prove that the use of deadly force by the Garda officers which resulted in the death of the applicants' relative had been absolutely necessary. In fact, the Albanian Government itself admitted that the use of force had been excessive.
Further, the judicial body decided that according to Article 46 (binding force and execution of decisions) the authorities should continue efforts to clarify the death of the relatives of the applicants and identify and punish those responsible.
MAIN FACTS
The applicants, Rajmonda, Amelia and Mentila Nika, are Albanian citizens who were born in 1984, 2009 and 2010 respectively and live in Lezhë (Albania). They are the wife and daughters of AN, who was shot in the head on January 21, 2011 during a protest in front of the Prime Minister's Office. He died in hospital on February 4, 2011.
1. According to articles 43 and 44 of the Convention, this decision of the Chamber is not final. During the three-month period following its announcement, either party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges assesses whether the case merits further consideration. If the request is accepted, the Grand Chamber examines the case and gives a final decision. If the referral request is rejected, on the same date the Chamber's decision becomes final.
Once the decision has become final, it is forwarded to the Committee of Ministers of the Council of Europe for the supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
The protest was organized by the Socialist Party of Albania, the main opposition party at the time. She had informed the authorities a few days before about the gathering points of the demonstrators and their route. The Republic Guard was on alert and the police had prepared a plan to guarantee order.
On the day of the protest, the situation deteriorated rapidly when some of the protesters started throwing stones at one of the police cordons. Despite the police using tear gas and a water cannon to disperse the protesters, a group of protesters managed to attack an iron door to the north of the building and entered the courtyard of the building. A group of officers, equipped with diving suits and rubber batons, managed to push the protesters out of the yard.
However, very soon after that moment, some Guard officers began using their firearms, firing both maneuver and combat rounds. Three protesters died on the spot and a relative of the petitioners was hit in the head by a bullet. None of the four victims were in the courtyard of the Prime Minister's Office; they were on a sidewalk nearby. None of them were taking part in the violence against the Garda officers.
The collision injured 45 other citizens, as well as 82 Guard officers and 27 police officers.
The prosecution launched an investigation that same day, issuing arrest warrants for six suspects, officers of the Republic Guard. When questioned, the officers categorically denied firing directly into the crowd, claiming that they had only fired into the air to repel the protesters. They also claimed that no order was given, at any time, to shoot in the air or in any other direction, and that each officer made this decision for himself.
At the end of the process, in 2013, two of the officers were found guilty of manslaughter of two of the victims. They were sentenced to one and three years in prison respectively. The Court of Appeal of Tirana concluded that the use of force by the Guard officers had been excessive and that they should have foreseen the consequences of their decision to fire live ammunition into the air. The Court of Appeal, however, did not find it proven that the officers had fired directly at the two victims, who were most likely killed by the ricocheting bullet. However, according to the court, shooting in the air should be considered a legal means of repelling the protesters who had tried to enter the Prime Minister's building.
The investigation into AN's death was separated from the main file and is still ongoing. A number of ballistics tests were performed on the bullet taken from AN's head, but due to its damage, it was impossible to match the bullet with the weapon from which it was fired.
The claimants also started legal proceedings for damages and in 2017 they were each awarded over 100,000 euros in damages. In this procedure, the Administrative Court of First Instance in Tirana found that the Guard officers had used their weapons on January 21, 2011 in violation of the Law on the Use of Firearms. She concluded that state authorities were responsible for AN's death
DECISION OF THE COURT
inquiry
Although the response of the authorities to the incident had been swift, the Court considered that there had been a number of shortcomings that raised suspicions that the authorities had tried to divert the investigation or intervene unjustly.
First, senior officials had made several hasty public statements immediately after the incident, saying that the victims had been shot at close range and with different types of weapons to those used by the Garda and police. The General Prosecutor was subjected to harsh criticism from the Prime Minister at the time and from a parliamentary investigative commission which had started work in parallel with the criminal investigation. Such an approach had a negative impact on the effectiveness of the investigation, in particular because of the potential to discourage witnesses from cooperating with the investigation.
Furthermore, even though restraining orders had been issued in relation to the suspected officers of the Republic Guard, they had not been implemented, claiming inaccuracies in their content. It was the officers themselves who surrendered 18 days later, which resulted in a loss of time at a critical stage, as well as the opportunity to minimize cooperation or distortion of the truth.
Also significant was the fact that video recordings of the incident, stored in the Prime Minister's server room, had been deleted. Suspicion that the erasure may have been deliberate was not answered in the criminal trial against an IT employee, which failed to establish by whom and how the records were deleted.
Other deficiencies in the investigation included the failure to investigate the possibility that demonstrators, including the applicants' relative, had been directly targeted and to what extent commanding officers had been responsible for the course of events. Nor was a precise chronology of events established, including the sequence and nature of the orders given by those in the Garda chain of command and the exact moment when the victims were shot. In fact, some key investigative leads, such as the bullet marks found at human height on the iron fence surrounding the Prime Minister's Office, had not been exhausted.
Furthermore, regarding the deficiencies in the specific investigation into the death of the applicants' relative, the Court found that the authorities had not performed the expert examination on the victim's body in time, and the applicants complained that they were denied access during the investigation, a claim that the Government could not disprove with evidence.
Therefore, taking into account the totality of the circumstances, the Court found that the investigation of the case had not been effective as it had failed to determine the truth or lead to the identification and punishment of the persons responsible, which constitutes a violation of Article 2.
The use of force and the death of the applicant's relative
Although the national courts had found the State responsible for the death of the applicants' relatives and the latter had received compensation, the circumstances of the opening of the fire have not yet been clearly established. In particular, it has not been established nationally that their relative had died as a result of the use of a firearm by a particular Garda officer. The identity of that officer or any other person involved has not been determined. Therefore, the Court rejected the Government's argument that the applicants had lost their victim status. The court went on to find that there were three main sets of deficiencies in the use of force that resulted in the death of the applicants' relative.
First, at that time there were deficiencies in the legal framework governing the use of firearms in the context of mass gatherings. The court found problematic the fact that local legislation authorized the use of firearms for the protection of property, without clearly defining which circumstances would justify such an action. The law has since changed to include the requirement that the lives of those responsible for protecting an object must be at risk.
The Court then went on to identify serious flaws in the planning and control of the protest, despite the fact that the authorities had had time to prepare after being notified several days in advance. The court noted in particular that there had been no clear instructions on the use of lethal force or on crowd control, and that there had been a lack of proper coordination between the Guard of the Republic and the police, as well as a clear chain of command. The amount of tear gas available and only one water-dispensing vehicle had not been sufficient to disperse the crowd and the police had not been equipped with gas masks; therefore, they had to retreat and leave the Republican Guard to face the crowd of protesters alone.
In conclusion, the Court considered that the authorities did not prove that the use of lethal force that resulted in the death of the applicants' relative was absolutely necessary under the circumstances of the case. The national proceedings did not examine whether the security forces could have used other (non-lethal) means of crowd control, which on the day of the events were used very little and this for reasons not explained by the authorities. The applicant's relative did not pose any threat to the Guard of the Republic and the Court cannot accept the argument that the defense of a building in itself constituted a legitimate basis for the use of lethal force. Even if one were to accept the argument that the officers had fired into the air as a form of warning, it is difficult to imagine that firing at a careful angle would have hit the petitioners' relative in the head, even as a result of a ricocheting bullet, while he was standing near the sidewalk in front of the Prime Minister's Office. In fact, the Albanian Government itself had admitted that the force used had been "disproportionate".
Consequently, there has been a violation of Article 2 regarding the death of the applicant's relative.
Article 41 (fair remuneration)
The petitioners did not file a claim for just compensation.
Article 46 (binding force and execution of decisions)
Laws governing the use of firearms have been changed following the incident in question, and shooting into the air as a means of dispersing crowds is now prohibited by law. The court decided that it is up to the Committee of Ministers, the executive body of the Council of Europe, to follow the execution of the decision and evaluate whether these general measures and other measures suggested by the Albanian Government are effective.
She also considered that the authorities should continue efforts to clarify the circumstances of the death of the applicant's relative and to identify and punish the persons responsible.
We recall that Alex Nika was killed in the protest of January 21, 2011 on the boulevard "Dëşmorët e Kombit", together with 3 other protesters. After the long judicial ordeal, Nika's family sent a lawsuit to the European Court of Human Rights. (A2 Televizion)
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