Communicated on 6 January 2015
FOURTH SECTION
Applications nos 12720/14 and 63543/09
Zamira DURDAJ and Feruzan DURDAJ against Albania
and Zamira DURDAJ against Albania
lodged on 29 January 2014 and 9 November 2009 respectively
STATEMENT OF FACTS
The applicants Ms Zamira Durdaj and Mr Feruzan Durdaj, are Albanian nationals, who were born in 1971 and 1968 respectively and live in Gërdec, Albania. Application no. 63543/09 was lodged by Ms Zamira Durdaj and application no. 12720/14 was lodged by both applicants.
They are represented before the Court by Mr D. Matlija, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
By the end of 1992, the Albanian Armed Forces possessed a stockpile of 185,000 tons of ammunition stored in 1,300 depots across the country. Faced with the risk that this ammunition posed to the life and health of the population, the authorities embarked on a process of demilitarisation and destruction of the surplus ammunition stockpile.
The demilitarisation of ammunition initially took place in three State-owned and -controlled military facilities with the assistance of the North Atlantic Treaty Organisation’s Maintenance and Supply Agency. In 2007 the Government decided to contract a commercial company to meet the demands of industrial demilitarisation.
On 7 June 2007 the Ministry of Defence Military Export Import Company (“MEICO”) concluded a commercial contract with the Southern Ammunition Company (“SAC”), a company incorporated in the United States of America, for the sale of ammunition stockpile for demilitarisation purposes. The SAC sub-contracted Albdemil ltd., a limited liability company incorporated in Albania. The former tanks workshop (ish reparti i tankeve) in Gërdec was to be used as the demilitarisation facility. The contract expired on 30 October 2007. It was reported that the demilitarisation was carried out without significant problems.
On 28 December 2007 a second contract was concluded between the MEICO and the SAC. The latter sub-contracted Albdemil ltd. to carry out the demilitarisation of the ammunition stockpile.
On 15 March 2008 a massive explosion occurred at the demilitarisation facility (“the Gërdec incident”). The explosion claimed 26 lives, including the applicant’s seven-year-old son. 265 persons were either grievously or lightly wounded and a number of nearby buildings was heavily damaged.
1. The criminal investigation into the explosion of 15 March 2008
On 15 March 2008 the prosecutor opened a criminal investigation into the Gërdec incident.
On 29 March 2008 the investigation was extended to include the then Minister of Defence, F.M., who was also a Member of Parliament (“MP”). In order to proceed with the investigation against the MP, Parliament’s authorisation was required in accordance with Article 73 of the Constitution.
On 16 June 2008 Parliament authorised the prosecutor’s investigation against the MP.
A forensic report of 19 August 2008 confirmed that the applicant’s son had died as a result of second-and third-degree burns caused by the flames of the explosion.
The experts’ report of 10 February 2009
On 10 December 2008 the prosecutor ordered that an expert’s report be carried out.
On 10 February 2009 the experts delivered a lengthy report. According to the report, the transportation from the arms depot to the Gërdec munition facility was provided by vehicles of the Armed Forces. There appeared to exist no transportation schedule (grafiku i transportit) which was in breach of an order issued by the Minister of Defence.
The report could not determine whether the Gërdec demilitarisation facility was a military site. Having examined by-laws, the report concluded that the Gërdec area, which was administered by the Ministry of Defence, had not been licensed to be used as a munition depot. The demilitarisation process carried a degree of risk in and of itself, since it consisted of the storage of ordnances, their disassembly and the separation and storage of by-products. As such the designation of the Gërdec military facility for demilitarisation purposes should have been attended by the licensing of warehouses and facilities where disassembly operations were supposed to take place. This would have determined an analysis of the storage and processing capacities against the facility’s conditions.
The report could not conclude whether safety measures were complied with during off-loading and receipt of ordnances. However, it found that ordnances had not been off-loaded and stored in special warehouses, away from the area used for disassembly operations. There were no licensed warehouses which stored ordnances delivered by the Armed Forces. Prior to the conclusion of the second contract with the commercial contractor, a number of measures should have been taken before authorising the supply with raw material (ordnances) and the commencement of work. Some of the measures could have included a prior inspection of the disassembly machines, compliance with fire safety measures, qualifications and training of personnel as regards technical safety measures and the storage capability of the contractor. No such inspection had been carried out by the responsible State authority.
As regards technical safety measures, relying on employees’ statements, the report found that personnel had not read or seen any regulations concerning technical safety measures, nor received any training before the start of their work. No such information existed for the period after the conclusion of the second contract on 28 December 2007.
The disassembly of ordnances did not correspond to their demilitarisation, as envisaged in the contract. The facility’s infrastructure did not meet the safety measures for carrying out disassembly operations, which occurred in two open-air locations and were unprotected from exposure to the direct rays of the sun. There were no containers, which were safe from explosion, to carry out dangerous and hazardous operations. The technology used for disassembly operations was not safe. No machinery was used and the equipment was deficient in complying with the safety requirements. As concerns internal transportation, vehicles did not satisfy the safety measures required for working with ordnances. The facility was not equipped with fire extinguishers or automatic sprinkler systems, nor was any lightning protection system installed.
According to the report, the Armed Forces were supposed to bear responsibility for securing and protecting the facility, while MEICO was expected to have the general oversight over the demilitarisation activities. It could not be determined with certainty which authority was meant to have the oversight for compliance with the safety measures during the demilitarisation process.
2. Disjoinder of the proceedings
On 6 March 2009 the applicant and other injured parties lodged a civil action with the General Prosecutor’s office against three of the co-accused (F.M, Y.P and M.D), two companies (A. and M.), the Ministry of Defence and the Prime Minister’s office.
In accordance with Article 141 § 1 of the Constitution, according to which the Supreme Court has primary jurisdiction to hear cases against MPs, on 13 March 2009 the General Prosecutor’s office committed the MP and the other co-accused for trial before the Supreme Court.
On an unspecified date a number of the co-accused made a preliminary request to the effect that the Supreme Court was not competent to hear their case.
On 22 May 2009 the Supreme Court decided to sever the criminal proceedings against the MP from those against the remaining co-accused, having regard to the different nature of charges against all co-accused and the nature of collusion amongst them. It held that it was competent to hear only the charges against the MP and remitted the charges against the remaining co-accused to the Tirana District Court for examination.
On the same date the Supreme Court decided to sever the applicant’s civil action from the criminal proceedings against all co-accused, including the MP, having regard to the complexity of the criminal proceedings, the large number of co-accused, the fact that a number of the alleged criminal offences were committed in collusion, the loss of twenty-six lives and the resultant economic damage of large proportions. The court further stated that, taking account of the large number of injured parties, the determination of pecuniary and non-pecuniary damage required specialised experts’ reports, which would be obtained during the civil proceedings. It remitted the civil action to a civil bench of the Tirana District Court.
Having been served with a copy of the Supreme Court’s decision, on 25 May 2009 the applicants’ lawyer requested that judge B.I be withdrawn from the examination of the case, because his daughter had acted as a representative for two co-accused in a commercial transaction. On the same date the applicant’s lawyer requested that judges E.S and I.B. be withdrawn from the examination of the case on account of their participation in the bench that had examined some of the prosecutor’s requests during the course of the criminal investigation.
On 17 June 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision.
On 15 July 2009 the Constitutional Court dismissed the complaint. It found that the Supreme Court had acted in accordance with, inter alia, Article 62 § 3. Its decision was provisional and did not examine the merits of the civil action. The complaints did not concern any breach of constitutional safeguards. The decision was served on the applicant’s lawyer on 17 July 2009.
3. Discontinuation of the proceedings against F.M
On 1 August 2009, as a result of the parliamentary elections, F.M was re-elected as an MP.
On 14 September 2009 the Supreme Court, by a majority of three votes to two, discontinued the proceedings against F.M on account of the parliamentary immunity as a result of his re-election as an MP. No fresh authorisation had been requested by Parliament following F.M’s re-election.
On 14 January 2010 the Association of families of victims of the Gërdec incident (“the Association”), of which the applicants are members, requested the prosecutor to institute criminal proceedings against F.M. Having not received a response, the Association lodged an action with the Tirana District Court.
On 2 May 2011 the Tirana District Court held that it was not competent to examine the Association’s action. An appeal was directly lodged with the Supreme Court.
On 13 June 2011 the Supreme Court dismissed the Association’s appeal. The decision stated that the Association had not lodged a criminal complaint with the prosecutor’s office in accordance with Article 284 of the CCP, so that the prosecutor’s office could take a decision to discontinue the criminal proceedings in accordance with Article 290 of the CCP. Furthermore, the Association could not be considered an “injured party” within the meaning of Article 58 of the CCP and it, therefore, had no locus standi. According to the decision, only an individual was to be considered injured party.
On 26 October 2012 an amendment to the Constitution of Albania entered into force to the effect that Parliament’s authorisation was no longer required for the institution of criminal proceedings against an MP. As a result, the applicants made a request to the General Prosecutor’s office to institute criminal proceedings against F.M. To date, this request has remained unanswered.
On 25 April 2013, in a televised interview to the Voice of America, the General Prosecutor stated that no criminal proceedings would be instituted against F.M unless there were new facts. In his view, the applicant and other victims had not submitted new facts other than those already investigated (Nëse do të ketë rrethana të reja, prokuroria pa diskutim që do të fillojë hetimet. Familjarët e viktimave nuk kanë paraqitur të dhëna të reja të ndryshme nga ato që janë paraqitur në momentin e parë dhe që janë hetuar nga prokuroria (...)).
4. Judicial proceedings
(a) The Tirana District Court decision
On 11 June 2009 the Tirana District Court (“the District Court”) started the judicial proceedings against twenty-nine accused.
On an unspecified date in 2009 it would appear that the District Court rejected the requests of four of the co-accused’s requests for the application of the summary procedure.
Over 200 hearings were conducted. At least sixty-two witnesses gave testimony. On 12 March 2012, in a decision running over 573 pages, the Tirana District Court stated that during the period of the first contract, the demilitarisation process, which was assisted by American experts, targeted small-calibre ammunition (7.62 mm, 8 mm, 12.7, and 14.5 mm in calibres). In the period of the second contract, no American experts were present, and the demilitarisation also included heavy ammunition of between 20 mm and 152 mm in calibres. The ammunition was transported by military vehicles, offloaded in open-air spaces, unprotected from the sun exposure and rain falls. The ammunition boxes were not stored in specially licensed warehouses, away from the demilitarisation area.
During the period of the second contract, employees were hired without taking account of age, sex, health status, qualifications and knowledge in the demilitarisation process and ammunition. According to witnesses’ testimonies, children as young as eight or nine years of age helped their parents out in their daily tasks. At least ten minors, between the age of fourteen and seventeen, testified that they had been hired to work at the demilitarisation facility. The applicants’ testimony stated that their fourteen-year-old son also worked at the facility, while, on the day of the incident, their seven-year-old son was taking a meal to one of his relatives who also was employed at the facility.
Throughout the whole process, employees did not receive any training about the work they were supposed to carry out, nor was any other training related to evacuation in case of fire conducted. Employees were not informed of any technical safety regulations in their work with explosive, flammable and detonated material, nor was there any technical safety regulation available during the demilitarisation process. In fact, no proper machines existed for the demilitarisation of ammunition during the period of the second contract.
Although there were some stored-pressure fire extinguishers, no training was conducted about their use, nor was there an automatic sprinkler system. During the period of the first contract, fire had broken out in some areas, but it had been extinguished thanks to the intervention of employees’ and that of some American specialists. No serious damage had resulted from the fire.
According to the decision, as from 26 December 2007 the Armed Forces could not ensure the protection of the facility, since, by an order of the Ministry of Defence, ownership had been transferred to MEICO, which was responsible for securing the protection of the facility.
The District Court found nine accused not guilty. It convicted nineteen accused and sentenced them to a fine, probation and terms of imprisonment ranging from three to eighteen years. The case-file in respect of one accused was transferred to the prosecutor’s office for further investigation.
(b) The Court of Appeal decision
On 13 February 2013, following the parties’ appeal, the Tirana Court of Appeal gave its 546-page decision.
The Court of Appeal, relying on a Constitutional Court’s decision of 26 March 2012, applied the summary procedure in respect of four accused, who had appealed against the provisional decision of the District Court rejecting their request for the application of the summary procedure.
The Court of Appeal upheld the District Court’s decision as regards the findings made in respect of 13 accused (five accused were confirmed to be not guilty; one accused’s file was transferred to the prosecutor’s office; a sentence of ten years’ imprisonment in respect of one accused and sentences of three years’ imprisonment in respect of six accused were also confirmed). It reduced sentences in respect of 12 accused (sentences of 18 years’, 18 years’ and 10 years’ imprisonment imposed by the District Court in respect of three accused were reduced to 10 years’, 12 years’ and 6 years and six months’ imprisonment, respectively, as a result of the application of the summary procedure; a probation term of three years was imposed in respect of an accused compared to three years’ imprisonment and a fine imposed by the District Court; one accused was sentenced to six years’ imprisonment compared to five years’ imprisonment imposed by the District Court; fines were revoked in respect of four accused, while their prison terms were upheld; one accused was found not guilty compared to a probation term of three years imposed by the District Court; the fine in respect of one accused was reduced by one third as a result of the application of the summary procedure). It increased sentences in respect of four accused, who were sentenced to a three-year probation term compared to the finding of not guilty made by the District Court.
It has been reported that M.D., one of the four co-accused who was sentenced to six years and six months’ imprisonment by the Court of Appeal upon the application of the summary procedure, was released from prison on 21 March 2013 following a remission of his sentence on account of exemplary behaviour in prison.
(c) The Supreme Court decision
Following the parties’ appeal, on 19 July 2013 the Supreme Court upheld the Court of Appeal’s decision. The Supreme Court held, inter alia, that four accused had submitted their request for the application of the summary procedure before the start of the judicial examination and that such request should have been accepted by the District Court. In so far as the four co-accused complained about the invalidity of documents contained in the investigation file, the Supreme Court stated that this complaint would not be examined because they had benefitted from the application of the summary procedure. The Supreme Court further dismissed the prosecutor’s argument that the lower courts had not convicted five of the accused of the criminal offence of murder committed in aggravated circumstances and in collusion for the absence of mens rea and actus reus.
The applicants submitted newspaper articles of 29 July 2013 reporting about the outcome of the Supreme Court’s decision. The articles stated that the full text of the decision would be deposited with the Supreme Court’s registry at a later date.
There is no information whether a constitutional complaint has been lodged with the Constitutional Court.
B. Relevant domestic law and practice
1. The Constitution
Until 17 September 2012, under Article 73 § 2 of the Constitution, Parliament’s authorisation was required before the institution of a criminal investigation against an MP.
On 18 September 2012 Article 73 § 2 of the Constitution was amended to allow the criminal investigation against an MP without Parliament’s prior authorisation. This amendment entered into force on 26 October 2012.
2. Code of Criminal Procedure (“CCP”)
(a) Injured party
Under Article 58 of the CCP the injured party resulting from the criminal offence or his heirs has the right to request the prosecution of the offender and compensation for damage. The injured party has the right to make request to the prosecutor and seek the collection of evidence.
Under Article 61 a person who has suffered pecuniary damage from the commission of a criminal offence may lodge a civil claim during the criminal proceedings seeking compensation for damage. Under Article 62 the request should be submitted prior to the commencement of the judicial examination. In accordance with Article 62 § 3, a court may decide to sever the civil claim from the criminal proceedings if its examination delays or complicated the criminal proceedings.
(b) Summary procedure
The relevant domestic law and case-law as regards the summary procedure have been described in Cani v. Albania, no. 11006/06, §§ 34-35, 6 March 2012.
The Supreme Court’s unifying decision no. 2 of 29 January 2003 stated, inter alia, that a court should revoke its decision for the use of the summary procedure if the parties complained about the invalidity of acts or documents. Consequently, the continuation of the normal judicial examination should be ordered. The Supreme Court further held that that the application of the summary procedure could not be granted in respect of a defendant who was being tried in a set of proceedings which was also directed against other co-defendants who had not sought the use of the summary procedure. Only when the disjoinder of cases was allowed in accordance with the law, namely Article 93 of the CCP, could the summary procedure be adopted in respect of the accused that requested its application.
On 26 March 2012 the Constitutional Court ruled that a provisional decision given by a District Court rejecting an accused’s request for the application of the summary procedure was amenable to appeal before the Court of Appeal. The accused would challenge the provisional decision at the same time he would appeal against his conviction, that is the judgment on the merits.
3. Implementing by-laws for carrying out demilitarisation activities
Council of Ministers’ decision (“CMD”)no. 138 of 14 March 2007
This CMD provided for the sale of ammunition for demilitarisation purposes. It entrusted MEICO to conduct the procedure for the sale of ammunition for demilitarisation purposes and to conclude respective contracts.
A number of orders, as mentioned in the domestic decisions, were issued by the Minister of Defence providing the framework for carrying out demilitarisation activities (for example, orders nos. 550 of 25 April 2007, 1208 of 19 July 2007, 1300 of 7 August 2007 and 2044 of 7 December 2007).
COMPLAINTS
As regards application no. 63543/09, the applicant complains under Article 2 of the Convention that, as a result of the disjoinder of the civil claim from the criminal proceedings, she was deprived of her right to participate in the criminal proceedings.
As regards application no. 12720/14, the applicants complain about a breach of Article 2 of the Convention on account of the authorities’ failure to enforce safety measures to protect their lives and that of their deceased child. They further complain of the authorities’ failure to inform them of the risks they were likely to be exposed by working at the demilitarisation facility.
As regards application no. 12720/14, the applicants complain about a breach of Article 2 of the Convention in that: they had not been allowed to participate in the criminal proceedings; the criminal proceedings had been discontinued against the former Minister of Defence, F.M.; the reduction of the sentences imposed on appeal as well as the application of summary procedure was not proportionate to the loss of lives that had occurred as a result of the explosion.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies in respect of their complaints under Article 2, as required by Article 35 § 1 of the Convention?
2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention for lodging application no. 12720/14? In general, how and when does a Supreme Court deliver its decisions under the domestic law? In particular, how and when did the Supreme Court deliver its decision of 19 July 2013? When did the applicants learn of the pronouncement of the Supreme Court’s decision of 19 July 2013?
3. Having regard to the State’s positive obligations under Article 2 of the Convention, did the authorities take all the necessary measures to protect the applicants’ lives and the life of their deceased seven-year-old child (see, amongst others, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII; L.C.B. v. the United Kingdom, 9 June 1998, Reports of Judgments and Decisions 1998‑III; Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions 1998‑I)? In particular:
(i) What were the access arrangements to the demilitarisation facility? Can these access arrangements be considered to have been observed, having regard to the death of the applicants’ seven-year-old son?
(ii) What technical safety regulations related to demilitarisation operations were put in place? Can these regulations be considered to have been observed?
(iii) What inspections were carried out about compliance of demilitarisation operations with the domestic laws and by-laws? What were the findings of such inspections? Can these findings be considered to have been observed?
(iv) Were the applicants provided with information enabling them to assess the risk they might run as a result of employment at the demilitarisation facility?
The Government are requested to provide copies of access arrangements, technical safety regulations, inspection reports and information notice. The Government are also requested to submit copies of orders of the Minister of Defence as regards the conduct of demilitarisation operations at the Gërdec demilitarisation facility (including, but not limited to, the Minister’s orders nos. 550 of 25 April 2007, 1208 of 19 July 2007, 1300 of 7 August 2007 and 2044 of 7 December 2007).
4. Having regard to the procedural obligations under Article 2 of the Convention, did the authorities conduct an effective investigation? In particular:
(i) What actions did the authorities take to investigate the former Minister of Defence’s role and responsibility in the events that resulted in the Gërdec incident? Did the authorities make any findings, whatsoever, concerning the former Minister’s role and responsibility into the events that gave rise to the Gërdec incident?
(ii) Was the reduction of sentences imposed on some accused on appeal in compliance with the respondent State’s procedural obligations?
(iii) In applying the summary procedure, what weight did the domestic courts give to the Supreme Court’s unifying decision no. 2/2003? In particular, did the accused in respect of whom the summary procedure was adopted challenge the validity of acts or documents on appeal? Was the Court of Appeal allowed to adopt the summary procedure in respect of four accused, while they were being tried in the same set of proceedings involving other co-accused who had not sought the use of the summary procedure?
(iv) Was the applicants’ effective participation in the criminal investigation complied with? Was the applicants’ right to effective participation in the proceedings secured after the Supreme Court’s decision of 22 May 2009 severed their civil action from the criminal proceedings?
The Government are requested to provide copies of all appeals of those accused in respect of whom the summary procedure was adopted.
Full & Egal Universal Law Academy