Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË lssc.albania@gmail.com [email protected]
ROLLING TRACK RECORD REPORT
May 2021
Prepared and published by: Legal and Social Studies Center, 05 June 2021.
Project: “Monitoring SPAK and the Special Court: Building a track record of prosecutions and convictions?”
Table of Contents
Case 1 - SPAK v. Alban Toro 2 Case 2 - SPAK and electoral crime 4 Case 3 - SPAK and Sali Berisha 6 Case 4 - SPAK and the reopening of the ‘Gërdec’ case 8 Case 5- Update: SPAK v. Adriatik Llalla 10
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
Case 1 - SPAK v. Alban Toro
Keywords: HJC member, documents’ falsification, Special Court, SPAK.
1. Facts:
Alban Toro was elected as a member of the HJC (High Judicial Council), by the decision No. 18/2018, of the Parliament of Albania. Mr. Toro was part of the members of the HJC coming from advocacy. Since his election, he has performed his duty as a full member of the H.C.J. as provided by the Constitutional amendments regarding the new organs of the judiciary, according to the justice reform.
In December 2020, the news network News 24, aired an investigation on Toro, discovering that he did not fulfil the criteria to be elected, despite his appointment as a member of the H.J.C. He had not exercised his activity as a lawyer for a minimum of an uninterrupted period of 10 years, as prescribed by the law. The journalist of the TV network found out that Toro had suspended no less than three times his commercial license to exercise his activity as a lawyer at the N.B.C (National Business Center).
On the 11th of February 2021, the lawyer Ndue Pjetra, filed a criminal complaint in SPAK against Mr. Alban Toro, accusing the latter of lying about whether he fulfilled the criteria for his actual position. Mr. Ndue Pjetra, stated that Mr. Toro had not exercised his activity as a lawyer long enough to comply with the minimal criteria needed to become a member of the H.J.C. The law prescribes that in order to be eligible to apply as a member of the H.J.C. from the advocacy ranks, a candidate must exercise such profession for an uninterrupted time of 10 years and have 15 years of overall experience. According to the lawyer Ndue Pjetra, Mr.Toro had interrupted his professional activity in 2012, thus presenting to the Parliament, falsified documents.
2. Procedural history:
In February 2021, the lawyer Ndue Pjetra filed the complaint in SPAK againt Alban Toro.
SPAK initially decided not to conduct an investigation on this case, reasoning that there were not enough grounds to do so. On appeal by the petitioner the case was sent to the Special Court.
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
3. Issue/s: The main issue which the Special Court dealt with, was:
a- If SPAK had to carry on with the investigation on the crime of falsification of documents?
4. Holding:
On the 26th of May 2021, the Special Court ordered SPAK to register the criminal proceeding and to start an investigation on the defendant.
5. Rationale
The Special Court stated, that the complaint made by Mr. Pjetra, fulfilled all the criteria, to lead to a formal opening of an investigation by SPAK.
6. Comment:
Despite the fact that this case attracted attention only after the complaint filed in February 2021 by the lawyer Ndue Pjetra, the case had already been under media focus. Some important media, publically denounced the case regarding the falsification of documents, right at the moment of Mr.Toro’s election as a member of the H.J.C, meaning from 2018 onwards.
This case is similar to the one involving the member of the Special Appeals Chamber (AC), Luan Daci,1 sentenced for the crime of falsification of documents. The initial unwillingness of SPAK to act, has been interpreted by the media as yet another suspicious case on the seriousness of the members of the new justice organs. This is further burdened by other circumstances, such as the fact that the wife of Mr. Toro is at the moment a judge. Having regard to the fact that Mr. Toro, due to his function also controls the careers of judges, this puts him in a very uncomfortable position and in a potential conflict of interest.
It remains to be seen, how SPAK and the Special Court will act, despite the fact that the case of Mr. Daci, offers by now a consolidated precedent for similar cases. On the other hand it is of interest to understand the criteria that SPAK has used in initially dismissing this case.
1 See Case 1, https://lssc-al.com/wp-content/uploads/2021/04/ROLLING-TRACK-RECORD-REPORT-MARCH- 2021-LSSC.pdf
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
Case 2 - SPAK and electoral crime Keywords: election’s manipulation, active corruption, passive corruption
1. Facts:
In December of 2020, the Law Commission of the Parliament approved an amendment to the competences of SPAK related to electoral crimes, more specifically those crimes involving vote buying, or influencing the vote in exchange of different favors. In the same fashion, the Law Commission vested District Prosecution Offices and SPAK with the duty of informing the Central Electoral Commission (CEC) on investigations involving the above crimes.
On the 11th of April 2021, SPAK initiated a proceeding against the news portal lapsi.al2 regarding the publication of a list of voters, containing sensitive information and thought to be authored by the Socialist Party (SP). Such investigation was put to a halt by the ECHR, due to concerns over media freedom infringements.
On the 25th of April, 2021, Albania held the General Parliamentary Elections. Despite the fact that these elections were relatively quiet and the results were available within 48 hours, some electoral subjects and independent candidates expressed their doubts on the fairness of the process, claiming irregularities and manipulation of votes. Such irregularities fall mostly under the following different categories:
a- Multiple voting b- Voluntary writings on ballots, making them invalid c- Vote buying
For such reasons the General Prosecutor’s Office and SPAK have received a number of complaints on the above mentioned irregularities.
2. Procedural history:
SPAK has received around 91 complaints from different subjects. 55 of them were deposited by the Democratic Party (DP). Till the 27th of April, 33 criminal investigations have been registered by SPAK for electoral crimes. The crimes to be investigated are active and passive corruption during the electoral process, as well as abuse of public functions for electoral gains.
2 See Case 1 https://lssc-al.com/wp-content/uploads/2021/05/ROLLING-TRACK-RECORD-REPORT-APRIL- 2021-LSSC.pdf
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
3. Issue /s:
The main issue/s SPAK has to face are:
a- If there has been multiple voting and if yes, who have been involved in such processes? b- If there have been episodes of vote buying? c- If there has been any abuse of power in order to influence voting?
4. Comment:
There are solid expectations that the new competencies on electoral crimes, with which SPAK has been endowed, will produce some results. Despite that, SPAK’s history offers some negative precedents in this field. In July 2020,3 SPAK declared that it did not have the necessary competencies to investigate the now famous file 339, divided in fractions. Part of such file were also some wiretappings who implicated high public officials in a process of vote rigging in the general elections of 2017 in the Dibra Region. Despite the fact that the investigation was initiated by SPAK, it was later turned to the District Prosecution Office. None of the state functionaries or politicians involved were investigated on the occasion. A few local electoral commissioners were arrested and condemned.
Regarding the accusation for the recent electoral crimes of 2021, SPAK faces a difficult task. Firstly, SPAK competencies in matters of electoral crimes have increased. Secondly, SPAK operates in parallel fashion to the Electoral College, where electoral subjects have deposited their complaints for the irregularities of the process. Till now, organs like the Commission of Complaints and Sanctions (CCS) have turned down most of the complaints from the political parties or independent candidates for the annulling of the results due to claimed irregularities. If those requests do not find a solution in the Electoral College, it will be relatively more difficult for SPAK to investigate electoral crimes. If the Electoral College, will not accept the arguments and the evidence of the political parties, SPAK will be less inclined to investigate electoral crimes.
3See Case 6 https://lssc-al.com/wp-content/uploads/2020/07/ROLLING-TRACK-RECORD-REPORT- DOWNLOAD-IN-ENGLISH-JULY-2020-LSSC-1.pdf
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
Case 3 - SPAK and Sali Berisha.
Keywords: corruption, SPAK, USA, non grata
1. Facts:
On the 19th of May 2021, the U.S. Secretary of State, Antony Blinken, published a message in his Twitter account, stating that Mr. Sali Berisha and his family were designated as persona non grata in his country. The barring of Mr. Berisha to enter the U.S. was a measure taken due to suspicions of him being involved in corruptive affairs, as well as the use of political power for personal and family gains. Such declaration was followed by a strong public and media reaction, as it came after similar measures taken against the former MP Tom Doshi, the former GP Adriatik Lalla, or the former Mayor of Durrës, Vangjush Dako. All the above officials are barred through decision of the U.S. Department of State from entering the U.S. or from seeking an entry visa at the US Embassy in Tirana.
2. Procedural History:
Although there is no formal investigation on the above suspicions, SPAK has opened an investigation concerning a case of real estate acquisition, in which the son of Mr. Berisha, Mr. Shkelzen Berisha is involved.
Moreover, SPAK has asked the reopening of the ‘Gërdec’ file, which indirectly involves also Mr. Berisha. At the same time, the declaration of Mr. Blinken, who declared Mr. Berisha persona non grata, may serve as a basis for starting a formal assets investigation on him.
3. Issue/s:
The main issue/s SPAK will face are:
a- If there are grounds to open an investigation for corruption against Berisha? b- If his family members are involved in such scheme? c- If there are grounds to request the imposition of asset seizure measures?
4. Comment:
There are some elements that are worth commenting in this case. Officially Berisha is not under investigation by SPAK. At the same time SPAK has begun an investigation over a transaction of real estate, involving the son of Mr. Berisha, Shkëlzen Berisha, while at the same time not implicating either of them directly.
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
On the other hand, the request of SPAK to reopen the ‘Gërdec’ file, implicates Mr. Berisha only indirectly. If we take into account Blinken`s declaration and the U.S. entry ban imposed on Berisha and his family, the latter can serve as premises, or indications, that SPAK might initiate an assets investigation proceeding against him.
Given that Albania’s international partners, the EU and the U.S., have been key promoters of the Justice Reform, this reaction can be perceived, if not as ‘an authorization’ to act, at least as a form of support and urge for SPAK to begin investigations on such an important political figure for Albania’s post dictatorship history.
The news have been widely commented in the press and it might have had an impact on the DP’s post-electoral stance, as well as its effort to invalidate the election results. Taking into account the wide impact of such measures, it remains to be seen whether similar bans will be imposed on other former or current officials.
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
Case 4 - SPAK and the reopening of the ‘Gërdec’ case
Keywords: corruption, abuse of power, SPAK, Special Court.
1. Facts:
On the 6th of May 2021 SPAK addressed the Supreme Court, with a request for the reopening of the case of the Gërdec blast, which happened in March 2008 and where 26 persons lost their life. The blast occurred in a facility for the demilitarization of surplus ammunitions and the recycling of the metal obtained from it.
For reasons not entirely clear, an explosion occurred, and 26 persons lost their lives. The ammunition was transported from the Army deposits and then taken to the facility in Gërdec, owned by a private company. The metal obtained from the shells was recycled, while the powder was destroyed in site. The facility did not have the proper technical conditions for the process. Apart from small caliber ammunitions, big caliber ones were also dismantled in Gërdec. This was a decision made by the then Minister of Defense,, Mr. Fatmir Mediu, while it should have fallen under the competencies of the Council of Ministers.
Several persons, amongst which also the former Minister of Defense Fatmir Mediu, were investigated for various charges. Mr. Mediu was investigated on suspicions of abuse of power. The Parliament of Albania, deprived Mr. Mediu of his immunity, paving the way to the Prosecutors to continue with their investigation. In 2009, while the process was still in course, Mr. Mediu was reelected as an M.P., prompting his legal advisors to ask the court to dismiss charges against him because Mr. Mediu had regained his status as a parliamentarian and was protected by the parliamentarian immunity. In this way the process against Mediu was dismissed via a procedural clause. The decision of the Supreme Court was contested by the press and the public opinion at the time.
The decision of SPAK to ask for the reopening of the case came after the request filed by the Durdaj family, who lost their son in this tragedy. The request of the family targeted precisely former Minister Mediu.
2. Procedural history:
In May 2021, SPAK asked the Supreme Court to re-open the case for further investigations on Mr. Mediu, one of the principal persons, accused as responsible for the Gërdec tragedy, but not convicted for it. The argument of SPAK was that in 2012 and
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
2017, the legislation on parliamentarian immunity had been deeply changed, thus opening the way to the re-investigating this case.
On the 2nd of June 2021, the Supreme Court passed the case to the Special Court, as the competent court to decide whether the investigation on this case can be reopened.
3. Issue/s:
The main issues that the Special Court will face at this stage, are: a- If there are sufficient reasons to proceed with the reopening of the investigation on Mr. Mediu? b- If the case is reopened, is there sufficient evidence to support an indictment?
4. Comment
The Gërdec case is naturally one of the most important and most serious cases happening in Albania in the years 2000`. Several defendants were convicted in this case, be they private citizens or medium level functionaries. The vast majority of the convictions were rendered on the charge of violation of labor safety rules, labeling the case as a technological accident. No high level official, such as Mr. Mediu for instance, was convicted. Meanwhile, the media at the time alleged that the son of (the then Prime Minister) Sali Berisha, Shkëlzen Berisha, was involved and played an important role in this affair. Through its reaction, SPAK is asking to reopen a case which, at its core, deals with the corruption of high officials and their liability regarding the explosion and the death of 26 people.
It has to be emphasized that there have been several convictions on this case, all of which have been completed by now, except for that of the prior General Army Chief, Mr. Luan Hoxha, which was convicted in absentia. The Supreme Court case suspending the process on Mr. Mediu was highly contested by the media and the public opinion. The case was also one of those cases that were used to justify the need for a Justice Reform. Meanwhile, all three members of the Supreme Court panel that rendered the suspension verdict, are not judges anymore, either due to their resignation, or as a result of being dismissed by the vetting process.
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
Case 5 – Update: SPAK v. Adriatik Llalla
Keywords: former General Prosecutor, SPAK, assets investigation.
1. Facts:
This case is an update of the Case No. 4 of the Rolling Report of July 2020,4 the Case No. 2 of the Rolling Report of November 20205 and the Case No. 3 of the Rolling Report of March 2021.6 The investigation on the assets of Adriatik Llalla (former GP) refers to the measures imposed on his property, as prescribed by the anti-mafia law. As pointed out in our previous analyses to this case, in July 2018, the then Court for Serious Crimes seized the assets of the former GP, respectively an apartment of 67 square meters in Durrës and 4 land plots of 22.050 square meters, located in the suburbs of Tirana.
In March 2020, SPAK announced that it had completed the investigation, on the criminal charge of “Refusal to declare, non-declaration, concealment or fraudulent declaration of property, private interests of elected persons and public servants, or any other person that bears the legal duty to declare”. According to SPAK, this offence was committed three times by the former GP Llalla.
2. Procedural history:
After an initial return of the case for further investigation by the prosecution, the case was sent for merits adjudication.
3. Issue/s:
The main issue/s that the Special Court faces, was: a) If there was evidence beyond any reasonable doubts, that Llalla has committed the criminal offence for which he was being indicted?
4. Holding:
4 See Case 4 https://lssc-al.com/wp-content/uploads/2020/07/ROLLING-TRACK-RECORD-REPORT- DOWNLOAD-IN-ENGLISH-JULY-2020-LSSC-1.pdf 5 See Case 2 https://lssc-al.com/wp-content/uploads/2020/11/ROLLING-TRACK-RECORD-REPORT- NOVEMBER-2020-LSSC.pdf 6 See Case 3 https://lssc-al.com/wp-content/uploads/2021/04/ROLLING-TRACK-RECORD-REPORT-MARCH- 2021-LSSC.pdf
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Rr. “Alqi Boshnjaku” (ish Reshit Collaku) Pallati Bora, Ap.11 TIRANË [email protected] [email protected]
On the 20th of May 2021, the Special Court declared Adriatic Llalla guilty and convicted him of 2 years imprisonment for the crime “Refusal to declare, non-declaration, concealment or fraudulent declaration of property according to the article 257/a of the Penal Code”. At the same time, he was also forbidden to serve in any public function for 5 years.
Moreover, the Special Court decided to seize all immovable properties that were the focus of this case.
5. Rationale:
The court held that Adriatic Llalla had committed the crime of failing to declare and hiding his assets, during his office, as well as after leaving his post.
6. Comment:
Despite the fact that this process was lengthy and charges were mitigated with the passing of time, the verdict of the Special Court constitutes the first conviction of a high level public official. Moreover, the fact that there was no suspension of the prison term and application of parole, is proof that there is a strengthening of the conviction policy followed by the Special Court.
Certainly, Llalla will effectively go to prison only after the case is adjudicated at the appeals level and the verdict becomes final and binding.
This being said, this case and the decision of the Special Court, definitely constitute an indicator as to the start of building a track record of convictions of high public officials, which is also one of the main priorities of the Justice Reform.
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