Published on 28 August 2023
THIRD SECTION
Application no. 15468/23
Thoma GËLLÇI
against Albania
lodged on 5 April 2023
communicated on 12 July 2023
SUBJECT MATTER OF THE CASE
1. The application concerns the reasons justifying the pre-trial detention of the applicant, who at the relevant time was the director of the Albanian Public Television Broadcaster (Televizioni Shqiptar – the “Public Broadcaster” or “TVSh”).
2. On 9 November 2018 the Public Broadcaster organized a public tender to purchase technical equipment. A commission of three officers was established to evaluate the offers (“Commission”) and subsequently a contract was signed between the winner of the tender and the Public Broadcaster represented by the applicant. Following its disqualification from the tender, on 23 January 2019 one of the tender participants lodged a criminal complaint alleging “breach of equality between participants in a public tender” as provided by Article 258 of the Criminal Code. In February 2021 an investigation was launched into the tender, including the signing and subsequent implementation of the relevant contract.
3. On 4 March 2021, by way of letter signed by the applicant in the capacity of the director the Public Broadcaster, the latter forwarded to the prosecutors the documents in connection with the investigation.
4. On 20 May 2021 the Steering Council of the Public Broadcaster dismissed the applicant from his position.
First instance proceedings5. Following a hearing without the presence of the applicant, on 7 October 2021 the Anti-Corruption and Organised Crime Court of First Instance accepted a request by the Prosecutor’s Office and ordered that the applicant and three members of the Commission be placed in pre-trial detention. Having reviewed the tender documents and the applicant’s role in the signing and implementation of the contract, the court found that the applicant was suspected of having abused his official position, contrary to Article 248 of the Criminal Code. The court further noted that the applicant travelled frequently abroad therefore he was at danger of absconding. Lastly, it found that there was a danger that the applicant and other defendants would tamper with evidence or put pressure on witnesses.
6. On 8 October 2021 the applicant was allegedly called by the police and informed of the detention order. He allegedly travelled from Kolonjë to Tirana and surrendered to the authorities. Two other defendants were also detained.
7. On 11 October 2021 the applicant submitted to the said court that he had been dismissed from office five months ago and therefore had no possibility to tamper with the tender records. He added that the suspicion against him was based exclusively on the documents which were already seized by the Prosecutor’s Office, therefore there was no risk of him tampering with any witness or evidence. As regards the danger of absconding, he pointed out that he had surrendered to the authorities and that seizure of his passport and/or another security measure would be sufficient to prevent it. He concluded that his detention in prison was disproportional, in view of his health condition and the fact that he was 60 years old. He accordingly asked the court to order a more lenient measure of restraint.
8. On the same date, the court rejected the release motion, reiterating that the suspicion against the applicant continued to be valid and that there was a possibility that he would abscond. The applicant appealed on the same day.
Proceedings on appeal9. By way of two memorandums of 28 and 29 October 2021 the applicant reiterated his previous arguments (see paragraph 7 above) before the Anti-Corruption and Organised Crime Court of Appeal. He added that since his placement in detention on 11 October 2021 the prosecutors had not carried out any investigative measure, including his own questioning. He also pointed out that the prosecutors had not specified which evidence was in danger of being tampered with and had failed to explain why such evidence had not been collected in the past 20 months.
10. As regards the danger of absconding, the applicant stated that he had been in the USA during the summer months and had come back to Albania despite being aware of the investigation. He reiterated that a less stringent measure against him was sufficient to secure the risks relied on by the prosecutors.
11. On 30 October 2021 the court of appeal rejected the appeal and upheld the reasoning and conclusions of the first instance court. It noted that the applicant knew the victims of the alleged offense, the party that had been unduly favoured in the tender and the other suspects therefore there was a risk that they would collude and tamper with evidence. In the court’s view, the mere “ban on leaving the country” or any other less stringent measure was insufficient to address the said risks.
12. On 27 January and 9 November 2022, the Supreme Court and the Constitutional Court, respectively, rejected the applicant’s appeals. The latter decision was served to the applicant on 5 December 2022.
QUESTIONS TO THE PARTIES
Did the applicant’s remand in custody comply with the requirements of Article 5 § 1 (c) and 3 of the Convention? In particular:
(a) Did the domestic courts’ decisions given on 11 and 30 October 2021 give relevant and sufficient grounds justifying the applicant’s remand in custody (see, amongst other authorities, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-91, 5 July 2016, Merabishvili v. Georgia [GC], no. 72508/13, §§ 222-25, 28 November 2017 and Hysa v. Albania, no. 52048/16, §§ 61-85, 21 February 2023)?
(b) Was the risk that the applicant would abscond linked to specific facts? What weight was awarded to the applicant’s pleas that (i) he had been abroad and returned to Albania in the recent months and (ii) had voluntarily surrendered to the authorities once informed of the detention order against him (see, Merabishvili, cited above, § 223)? Did the domestic courts consider alternative less stringent measures of restraint to address this risk (Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000)?
(c) Was the risk that the applicant would obstruct criminal proceedings supported by factual evidence (Becciev v. Moldova, no. 9190/03, § 59, 4 October 2005)? What weight was awarded to the applicant’s pleas that (i) the case against him relied exclusively on documentary evidence which had already been collected and (ii) that the prosecutors had failed to specify and collect in a timely fashion the additional evidence that was supposedly at risk of being tampered with?
The Government are invited to submit a copy of the case file regarding the applicant’s remand in custody, including records of the hearings, copies of the prosecutor’s requests in support of the applicant’s remand in custody as well as the prosecutor’s subsequent submissions made before all appellate courts.