Communicated on 12 March 2015
FOURTH SECTION
Applications nos 46707/13 and 46714/13
Aishe SELAMI and others against Albania
and Roxhens DURDAJ and Alketa HAZIZAJ against Albania
lodged on 28 May 2013 and 28 May 2013 respectively
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They are all represented by Mr D. Matlija and T. Alexandridis, lawyers 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 the Directorate of Logistics issued an opinion indicating that the Gërdec facility was “inappropriate for the purposes of off-loading, storing and disassembling munitions. It was located close to the national road and inhabited areas.”
On the same date 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”). As a result of the explosion all applicants were grievously wounded.
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.
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 22 May 2009 the Supreme Court decided, inter alia, 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 15 July 2009 the Constitutional Court, following an appeal, 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 a 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”) 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 against twenty-nine accused
(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.
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.
There is no information whether a constitutional complaint has been lodged with the Constitutional Court.
5. Judicial proceedings instituted by the applicants as injured parties
(a) First set of proceedings
On an unspecified date in 2009 the applicants Alketa Hazizaj and Roxhers Durdaj, acting as injured parties, instituted criminal proceedings against F.M for having committed the criminal offence of grievous injury by negligence under Article 91 of the Criminal Code (“CC”).
On 1 March 2010 the Supreme Court decided to discontinue the criminal proceedings against F.M finding that the constituent elements of the offence (mens rea and actus reus) had not been made out. It further held that the applicants had failed to substantiate that they had become grievously injured as a result of the Gërdec incident.
On 9 May 2012, following the applicants’ constitutional appeal, the Constitutional Court quashed the decision finding, inter alia, that the Supreme Court, by deciding to discontinue the criminal proceedings, had taken the attributes of the prosecutor’s office and overstepped its competence. It remitted the case for re-examination to the Supreme Court.
No information has been provided as to the subsequent progress of the case before the Supreme Court.
(b) Second set of proceedings
On an unspecified date in 2011 all remaining applicants, acting as injured parties, instituted criminal proceedings against F.M and six other accused for having committed the criminal offence of grievous injury by negligence under Article 91 of the CC. They also sought payment of damages.
Having regard to the fact that F.M was an MP, on 25 April 2011 the Tirana District Court decided that it was not competent to continue the proceedings and transferred the case file to the Supreme Court.
On 23 January 2012 the Supreme Court decided to continue the proceedings only in respect of applicants Aishe Celami, Rabije Gerdeci, Dulbere Prini and Beg Aliu, the remaining applicants having failed to sign the action or appear before that court.
On 24 January 2012 the Supreme Court decided to discontinue the criminal proceedings against F.M finding that the constituent elements of the offence (mens rea and actus reus) had not been made out. It severed the proceedings against the remaining co-accused and remitted the case for examination to the District Court.
On 3 December 2012 the District Court, accepting all applicants as injured parties, decided to discontinue the proceedings, since the alleged offence had been amnestied in application of the Amnesty Act 2012.
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).
4. Criminal Code (“CC”)
Article 91 of the CC provides that the criminal offence of grievous injury by negligence is punishable by a fine or up to one year imprisonment.
5. Amnesty Act 2012 (law no. 107/2012 of 8 November 2012)
Under section 5 of the Amnesty Act 2012 the criminal prosecution could not commence and, if so, should be discontinued in respect of those criminal offences which were committed before 30 September 2012 and in respect of which the Criminal Code prescribes a sentence of up to two years’ imprisonment or another lighter punishment.
COMPLAINTS
The applicants complain that the authorities’ decision to allow the operation of the Gërdec munition facility, instead of carrying out demilitarisation activities in specialised facilities operating in the country, put their lives at serious risk contrary to Article 2 of the Convention.
They allege that the indiscriminate application of the general amnesty was contrary to the State’s obligation to conduct an effective investigation and trial against the accused under Article 2. They further contend that their action for damages could not be examined as a result of the discontinuation of the criminal proceedings and trial against the accused.
Under Article 13 they complain that there was no effective remedy in relation to their Article 2 complaints.
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 and Article 13 of the Convention?
2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?
3. Has there been a breach of the substantive limb of Article 2 of the Convention by way of the operation of the Gërdec demilitarisation facility? Did the authorities take necessary measures to protect the applicants’ lives?
4. Having regard to the procedural obligations under Article 2 of the Convention, did the authorities conduct an effective investigation and trial against the co-accused?
Appendix
Application no 46707/13
Aishe SELAMI, who was born on 07/10/2002, is an Albanian national living in Tirana. Her father, M. CELAMI, is acting as her legal guardian. Pashk KAÇI, who was born on 06/04/1951, is an Albanian national living in Tirana. Mirela HAZIZAJ, who was born on 09/02/1985, is an Albanian national living in Tirana. Miselda ZGURI, who was born on 16/10/2002, is an Albanian national living in Tirana. Her father, M. ZGURI, is acting as her legal guardian. Medi CELAMI, who was born on 12/03/1979, is an Albanian national living in Tirana. Rabie GERDECI, who was born on 08/06/1978, is an Albanian national living in Tirana. Shaban BRAHUSHI, who was born on 15/04/1960, is an Albanian national living in Tirana. Sabrie PICARI, who was born on 31/01/1967, is an Albanian national living in Tirana. Dylbere PRINI, who was born on 06/07/1962, is an Albanian national living in Tirana.Adelina CANI, who was born on 13/04/1990, is an Albanian national living in Tirana.Meltina HAKA, who was born on 26/07/1992, is an Albanian national living in Tirana.Bege ALIU, who was born on 03/07/1933, is an Albanian national living in Tirana.Esmeralda SEFAJ, who was born on 12/04/1979, is an Albanian national living in Tirana.
Application no 46714/13
Roxhens DURDAJ, was born on 30/09/1997, is an Albanian national living in Tirana. His father, R. DURDAJ, is acting as his legal guardian. Alketa HAZIZAJ, who was born on 03/07/1933, is an Albanian national living in Tirana.
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