Published on 27 November 2023

THIRD SECTION

Application no. 57271/14 Ndue MARKU against Albania lodged on 8 August 2014 communicated on 7 November 2023

SUBJECT MATTER OF THE CASE

1. The applicant complains under Article 7 of the Convention of the alleged unforeseeable nature of his conviction for abuse of office in the context of the 2008 explosion at Gërdec facility (see Durdaj and Others v. Albania , no. 63543/09 and 3 others, §§ 5-13, 7 November 2023 (not final)).

2. On 14 March 2007 the Council of Ministers adopted decision no. 138 (“CMD 138”) setting out the procedure for dismantling decommissioned and obsolete “small-calibre” weapons, machinery and equipment of the armed forces.

3. At the relevant time the applicant was employed by the Ministry of Defence and held the position of head of the Department of Legal Harmonization and Relations with Parliament.

4. On an unspecified time around December 2007, the applicant and three officers of the armed forces collaborated to prepare a draft order for signature by the Minister of Defence. The draft order would regulate several aspects of the weapons’ decommissioning process. In so far as relevant, the draft provided that ammunition with a diameter of between 20 and 152 millimetres (mm) would be included in the decommissioning process. It also provided that the ammunition was to be delivered for decommissioning to a private contractor, a US-incorporated company named “Southern Ammunition Company” (“SAC”).

5. On 7 December 2007 the Minister of Defence signed the draft which accordingly became order no. 2044 (“Order 2044”).

6. On 15 March 2008 at around midday a massive explosion occurred at the weapons-decommissioning facility in Gërdec. The incident continued for several hours; twenty-six people died and around 300 were wounded. It destroyed the property of 5,829 people, causing material damage in the amount of 2,141,343,616 Albanian leks (ALL) according to the Ministry of Defence’s data at the time of the event.

7. Criminal proceedings were instituted against thirty persons, including the applicant, who were involved in setting up and operating the demilitarization process at the Gërdec facility (see Durdaj , cited above, §§ 60-62).

8. On 10 December 2008 a group of prosecutors from the Prosecutor General’s Office commissioned an expert report. They asked the experts to determine, among other issues: (i) whether the ammunition that had been sent for decommissioning were of a “small-calibre” as required under the CMD 138 and (ii) whether there had been any violation of the licensing requirements during the decommissioning process in Gërdec.

9. On 10 February 2009 five experts in military munitions delivered a detailed report. The experts stated that the “small-calibre” provision under CMD 138 did not correspond to any category under Albanian rules and practices which did not categorize the ammunitions by calibre but rather by other criteria. To answer the question before them the experts therefore reviewed a number of domestic and international military training manuals and literature. Among the different definitions that they found, they suggested the one put forward by a 1985 Albanian military training manual which provided that “small-calibre” weapons had a diameter of up to 70 mm. The experts concluded that should this reasoning be accepted, the processing of ammunition with a diameter larger than 70 mm was not covered by CMD 138.

10. On 12 March 2012 and 13 February 2013, respectively, the Tirana District Court and the Court of Appeal found the applicant guilty of abuse of office under Article 248 of the Criminal Code which, at the time, read

“Deliberate performance or non-performance of actions or inactions against the law by the person who exercises public functions, which constitute a failure to duly fulfil his duties, [and] which have resulted in unfair pecuniary or non-pecuniary advantage for him or another [third] party or which have damaged the legitimate interests of the State, its nationals or other legal entities - if it does not constitute another criminal offence - shall be liable to punishment of up to seven years of imprisonment and a fine of three hundred thousand to one million [ALL].”

11. The District Court attributed to the applicant a number of acts contrary to Article 248 of the Criminal Code, however the Court of Appeal considered that the crux of the charge against him related to his involvement in wording the draft that later became Order 2044. The Court of Appeal found that the CMD 138 provided for the decommissioning of “small-calibre” weapons whereas the draft which later became Order 2044 and which had been prepared among others by the applicant, had included in the process ammunition of 20-152 mm which were not of a small calibre, thereby violating CMD 138. Moreover, the said order had provided for the decommissioning of weapons by a private contractor who was not equipped nor licenced for that purpose. The court found that it was the applicant’s duty to uphold CMD 138 in the process of preparing the draft Order 2044, and having failed to do that, he had abused his office and was therefore sentenced to one year’ imprisonment.

12. On 19 July 2013 the Supreme Court rejected the applicant’s appeal on points of law.

13. On 15 November 2013 the applicant filed a constitutional appeal complaining, among other issues and as he had already done before ordinary courts, of a violation of Article 7 of the Convention. He submitted that the wording of the offense of abuse of office under Article 248 of the Criminal Code was excessively vague and did not allow him to foresee which actions would engage his criminal responsibility. In respect of his involvement in reviewing the draft Order 2044 he submitted that the calibre of the weapons to be decommissioned was a technical issue which was not within the expertise of a lawyer but rather the military officers who were involved in drafting Order 2044. He pointed out in particular that the prosecutors and domestic courts themselves had relied on a military expert report to determine which weapons amounted to “small-calibre” weapons and, in addition, the experts had not given an absolute answer to the question.

14. In respect to the private contractor, he submitted that its selection was a question of policy or opportunity not a legal question within the purview of the lawyer of the Ministry. He further stressed that the draft order could not bring any legal effect such as selecting a private contractor for the decommissioning process and it had been rather the Minister’s decision to sign the draft which had had that effect.

15. On 23 January 2014 the Constitutional Court found that it could not re-assess evidence or apply domestic law in a different way from that of ordinary courts. Accordingly, the court dismissed the applicant’s constitutional appeal as disclosing no violation of the “ nulla poena sine lege ” principle.

QUESTIONS TO THE PARTIES

Was the applicant’s conviction foreseeable as required under Article 7 of the Convention (see, mutatis mutandis, Liivik v. Estonia , no. 12157/05, §§ 92-104, 25 June 2009)? In particular,

(a) could the applicant foresee that his individual criminal responsibility would be engaged in connection to the wording of the draft Order 2044 which was co-prepared by him and other officers?

(b) furthermore, could the applicant foresee that he could be criminally liable for failing to:

(i) ascertain which calibre of ammunition qualified as “small-calibre” ammunition provided for under CMD 138?

(ii) carry out a due diligence as to whether the private contractor had the necessary equipment and licenses to carry out the decommissioning of ammunition of calibre between 20 and 152 millimetres? Was it the applicant’s task to carry out these verifications and/or advise the Minister accordingly?

The Government are requested to provide copies of relevant documents such as the applicant’s job description and duties; the due diligence carried out by the Ministry regarding the licensing of the relevant contractor company; and any relevant jurisprudence regarding the application of Article 248 of the Criminal Code in similar circumstances.