Published on 13 February 2023

THIRD SECTION

Application no. 28873/22 Kastriot ISMAILAJ and Others against Albania lodged on 1 June 2022 communicated on 25 January 2023

SUBJECT MATTER OF THE CASE

Mr Kastriot Ismailaj (the first applicant) is the son Ms Lutfije Ismailaj (the second applicant). He is also the sole shareholder and director of “Adriatic Development Corporation Ltd” sh.p.k (the third applicant) a company established under Albanian law. The case concerns the confiscation of the applicants’ properties pursuant to a non-conviction based confiscation regime provided under the so called Anti-Mafia Act (Law no. 10192 of 3 December 2009 as amended).

In 2008 and 2012, the Tirana Prosecutor’s office launched two criminal investigations against the first applicant on suspicion that he had laundered the proceeds of criminal activities contrary to Article 287 of the Criminal Code. The investigations were discontinued in 2010 and 2012 for lack of evidence and elements disclosing a criminal offence, respectively. It appears that a third investigation was launched in 2014 on the same grounds.

On 16 June 2015 the Special Prosecution Office for serious crimes lodged a claim with the first instance Court for Serious Crimes, requesting under the Anti-Mafia Act the confiscation of several bank accounts and a car belonging to the applicants. Following the delivery of an expert’s report on the applicants’ assets and income, on 17 March 2016 the Serious Crimes’ First Instance Court accepted the claim. By reference to the criminal investigations that had been launched between 2008 and 2014 against the first applicant, the court found that there was a reasonable suspicion that he had been involved in criminal activities as of 2006. It also found that the second and third applicants were connected persons with the first applicant within the meaning of the Act and could, therefore, be subject of the confiscation measure. Lastly, the court found that under the Act the burden of proof rested with the applicants and they had not proved that the funds in the bank accounts, which totalled approximately one million US dollars, had been earned lawfully.

On 25 May 2016 the first instance court’s decision was upheld by the Serious Crimes’ Court of Appeal.

On 4 May 2021 the Supreme Court, sitting as a criminal bench of three judges, which included judge K.K., dismissed the applicants’ cassation appeal as inadmissible. It noted that it was not for the Supreme Court to re-examine evidence or point of facts and its jurisdiction was confined to legal arguments alone. It also added that it was satisfied that the conditions under Anti-Mafia Act for the confiscation of the applicants’ properties were fulfilled.

On 2 December 2021 the Constitutional Court dismissed the applicants constitutional complaints, including the complaint regarding the alleged lack of impartiality of the Supreme Court on account of the participation in the proceedings of judge K.K. who in 2016 had sat as first instance court judge in a case against the first and third applicants and had ordered the confiscation of some bank accounts belonging to them under the Anti-Mafia Act. In this connection the Constitutional Court found that bank accounts confiscated under the two proceedings in which K.K. had participated were different and concluded that there could be no objective doubts about K.K.’s impartiality.

QUESTIONS TO THE PARTIES

In view of K.K.’s participation in the Supreme Court’s bench that dismissed the applicants’ cassation appeal on 4 May 2021, was the applicants’ case examined by an impartial tribunal as required by Article 6 § 1 of the Convention?

In particular, did the Supreme Court examine the merits of the applicants’ cassation appeal?

If so, was the similarity between the two proceedings in which participated judge K.K. such as to cast doubt on his impartiality?

Appendix

Application no. 28873/22

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Kastriot ISMAILAJ

1963Albanian

Tirana

2.ADRIATIC DEVELOPMENT CORPORATION LTD

2006Albanian

Tirana

3.Lutfije ISMAILAJ

1941Albanian

Tirana