Published on 23 October 2023
THIRD SECTION
Application no. 55662/22
Valentino KAÇORRI
against Albania
lodged on 25 November 2022
communicated on 6 October 2023
SUBJECT MATTER OF THE CASE
1. The application concerns the seizure of the applicant’s properties pursuant to a request of the Special Prosecution Office Against Corruption and Organized Crime (“Special Prosecution Office” or “SPO”).
2. The seizure was carried out pursuant to a non-conviction based confiscation regime enacted by a so called governmental “normative act” of 31 January 2020 (“Normative Act”) which was later endorsed by Parliament on 5 March 2020.
3. The Normative Act provides that persons convicted of certain offenses and their close family, who own property that cannot be justified by their income, may be required to prove that their property has not been gained unlawfully. Should they fail to meet that burden, the SPO may request the Special Court Against Corruption and Organized Crime (“Special Court”) to seize their property. The seized property may be subsequently confiscated under similar conditions upon a fresh request by the SPO to the Special Court.
Seizure proceedings under the Normative Act4. On 1 February 2021 the Special Court admitted the SPO’s request to seize a number of apartments, land plots, cars and other properties belonging to the applicant and his family members.
5. It found that the applicant’s brother, A.K., who was also a defendant in the seizure proceedings, had been convicted of murder and unlawful possession of fire arms. A number intelligence reports from Italian and Dutch authorities alleged that A.K. could also be involved in drug trafficking. The applicant was considered a person close to his brother and was thus required to prove that he had lawfully acquired his own properties (see paragraph 3 above), namely one twelfth ownership share in a three storey building in Rrëshen, a car and a plot of land in Dhërmi.
6. The court concluded that despite having submitted a number of documents totalling around 500 sheets, the applicant and the other defendants had not met that burden.
7. On 11 June 2021 the Court of Appeal Against Corruption and Organized Crime upheld the first instance court’s decision relying in essence on the same reasons. It did not expressly address the relevance of the decision of 11 February 2021 by the District Court of Lezha to the proceedings.
Money laundering investigation8. On appeal the applicant argued that he had not been involved in any criminal activity and that his properties were acquired lawfully. He pointed out in particular to a decision of 11 February 2021 by the District Court of Lezha which had accepted a request by the prosecutor’s office to discontinue the criminal proceedings for money laundering against the applicant and his two brothers, including A.K. In its decision the court had allegedly found that the murder of which A.K. had been convicted was not an offense that generated financial gains which could be later laundered. It had also found that pursuant to different responses from domestic and international law enforcement agencies there appeared to be no records of any criminal activity by the applicant or A.K. Furthermore, it held that although the name of the applicant and A.K. appeared in some police records, there had been no evidence of a criminal offense committed by them. Lastly, relying on an accounting expert report, it concluded that the applicant’s and his brothers’ income through the years justified their properties. That decision became final as no appeals were lodged against it.
Supreme and Constitutional Court findings on the property seizure9. On 22 October 2021 the Supreme Court rejected the applicant’s cassation appeal against the property seizure and upheld the reasoning of the lower courts.
10. On 26 July 2022 the Constitutional Court rejected the applicant’s constitutional appeal on the grounds that under the Normative Act the impugned proceedings were either to be discontinued or lead to confiscation of the seized properties. It considered the seizure to be a preliminary measure which did not ultimately determine the applicant’s ownership rights. The court accordingly concluded that legal remedies had not been exhausted. Its decision was served on 28 July 2022.
11. Relying on Article 6 § 1 of the Convention the applicant complained that there had been a violation of his right to a reasoned judgment, legal certainty and the right of access to the Constitutional Court. He also complained of a violation of Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right of access to the Constitutional Court under Article 6 § 1 of the Convention on account of that court’s refusal to examine the merits of his constitutional appeal (see Zubac v. Croatia [GC], no. 40160/12, § 97, 5 April 2018)? In particular:
(a) are the seizure and confiscation proceedings under the Normative Act part of a single judicial process or two separate sets of proceedings?
(b) what additional legal remedies was the applicant required to exhaust before complaining about the seizure of his property to the Constitutional Court?
2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:
(a) did the domestic courts provide sufficient reasons as required by Article 6 § 1of the Convention for rejecting the applicant’s defence based on the findings of the final judgment (dated 11 February 2021) of the District Court of Lezha?
(b) has the principle of legal certainty under Article 6 § 1 of the Convention been complied with, regard being had to the allegedly conflicting rulings of domestic courts in respect of the lawfulness of the applicant’s assets (see, for example, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 123, 29 November 2016)?
3. Has there been an interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention on account of the seizure of his properties, namely his share of a building in Rrëshen? What is the burden of proof of each party in the seizure proceedings under the Normative Act? Has there been a violation of Article 1 of Protocol No. 1 to the Convention?
The Government is invited to submit a copy of the case file, including the applicant’s submissions before the Constitutional Court.