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The Constitutional Court dismissed today the request of former Minister Fatmir Mediu on the Gërdeci file.
The College of the Constitutional Court (College), after listening to the relator of the Sandër Beci case, examined the request, the accompanying documents and discussed the case as a whole, decided not to pass the case for consideration in the plenary session.
In October of a year ago, the Special Prosecutor’s Office registered the criminal proceedings against the former Minister of Defense Fatmir Mediu, to investigate his responsibility in the tragic event of 2008 in Gërdec, where 26 people lost their lives.
Petitioner’s Claims
- APPELLANT in his request, he submitted, in summary, that the challenged court decision violated:
- The principle of legal certainty and res judicata, after the decision of the Criminal College of the Supreme Court no. 6, dated 14.09.2019, has not been annulled, nor has the re-examination of the case been decided, and the criminal prosecution has been prescribed. The accusation’s claim that the quality of the defendant has been preserved for 12 years is unfounded and contrary to the law, since this quality is preserved until the decision to dismiss the case takes final form. The legislator has removed the possibility of resuming the criminal prosecution when it was dismissed on the grounds of lack of authorization, and this fact has been ascertained by a final court decision. The decision of the Criminal Panel of the Supreme Court is not in accordance with the new circumstances. Not only does it have no legal support, but it contradicts the principle of legal certainty.
- The standard of reasoning of the decisionas the decision lacks the rebuttal reasoning of the alleged facts from the point of view of logic, content and form, as well as it is contradictory.
III
College Assessment
- For the legitimization of the applicant
- The issue of legitimation (locus standi) is one of the main aspects related to the initiation of a constitutional process. According to articles 131, point 1, letter “f” and 134, points 1, letter “i” and 2, of the Constitution, as well as article 71 of law no. 8577/2000, any individual, natural or legal person, subject to private and public law, can move the Constitutional Court for the final adjudication of appeals against any act of public authority or judicial decision that infringes the fundamental rights and freedoms guaranteed in the Constitution.
- The individual constitutional appeal, in any case, must meet the criteria of Article 71/a of Law no. 8577/2000, related to the exhaustion of legal remedies, the deadline for submitting the request, the negative consequences suffered in a direct and real way, the possibility of restoring the violated right, as well as the special legal regulations for the preliminary examination of the request. These preliminary criteria for the admissibility of the request are of a cumulative nature, so the non-fulfillment of one of them is enough for the requester not to be legitimized for initiating the constitutional trial.
- In view of verifying the fulfillment of these criteria, the College assesses that the applicant is legitimate ratione personaein the sense of articles 131, point 1, letter “f” and 134, point 1, letter “i”, of the Constitution, because he was a party to the judicial process for which the contested decision was taken, as well as being the bearer of fundamental rights and freedoms recognized by the Constitution.
- Another preliminary criterion, which must be fulfilled by the individual before turning to this Court, is related to exhaustion of effective legal remedies. According to Article 131, point 1, letter “f”, of the Constitution, the Court decides on the final judgment of the complaints of individuals, after all effective legal remedies for the protection of the constitutional rights, which the individual claims have been violated by the act, have been exhausted. of public power. The purpose of this article of the Constitution is, among other things, to enable, within the ordinary judicial system, the prevention or redress of alleged violations, before such claims are presented to this Court (see decisions no. 5, dated 17.03.2022; no. 23, dated 29.04.2021; no. 54, dated 24.07.2017 of the Constitutional Court).
- Given that constitutional protection has a function subsidiary, it can only be requested for a final decision, of any form, that concludes the judicial process. Violation of the right to a due process of law, guaranteed by Article 42 of the Constitution, can be claimed in this Court only after all the possibilities offered by the appeals system have been exhausted, and this also applies in cases where preliminary judicial procedures lead to a further aggravation or prolongation of the violation of this right (see decisions no. 14, dated 11.03.2021; no. 29, dated 30.03.2017 of the Constitutional Court).
- However, in its jurisprudence in the criminal field, the Court has also included in its constitutional jurisdiction intermediate judicial decisions, such as those for the appointment or replacement of personal security measures, or even those for the confiscation of property during criminal proceedings, due to the nature of these decisions and the consequences they bring to the fundamental rights of the individual.
- In the case of claims against judicial decisions on security measures (their appointment or replacement), which are decisions that are given in special procedures in function of the criminal proceedings of the foundation, the Court has assessed that they are part ratione materiae in its jurisdiction. In cases where the applicant has exhausted the means of appeal for the measure of criminal insurance “arrest in prison” and appeals against the decision of the Supreme Court for this measure, it has been estimated that this type of court decision is considered final for the purposes of Article 131, point 1, letter “f”, of the Constitution (see decision no. 14, dated 11.03.2021 of the Constitutional Court).
- Even in relation to the decisions on the confiscation of property, it has been assessed that they are final in nature, as they decide on the individual’s right to ownership. They are the result of an autonomous process from the criminal one for the determination of guilt and the violation of the right to property is a direct consequence of these types of decisions, which means that the petitioners are included in the status of the victim of the constitutional right. These decisions are final, in contrast to the decisions given for seizing assets, which are intermediate decisions (see decision no. 48, dated 06.07.2015 of the Constitutional Court and decision no. 135, dated 02.12.2021 of the Meeting of Judges).
- The panel notes that the petitioner objected in the object of the request under review to the decision of the Criminal Panel of the Supreme Court for not accepting the appeal against the decision of the GJKKO of Appeal, which revoked the decision to dismiss the criminal case against him. In other words, the applicant opposes in this Court the court decision, which opened the way for the initiation of criminal proceedings against him.
- For the above, decision no. 1106, dated 21.12.2021 of the Criminal College of the Supreme Court, opposed by the petitioner, is not a final decision, in the sense of Article 131, point 1, letter “f”, of the Constitution, since not only does it not decide final on the essence of his right, which has to do with guilt or innocence for committing the criminal offense for which he is accused, but it has not been proven that it has any such infringing effect on the fundamental rights of the applicant, which are not can be defended during the ordinary trial.
- The College assesses that the applicant has all the necessary legal means to protect his interests during the review of the merits of his case, where he can raise claims regarding the legal definition of the facts or the violation of his constitutional rights by the decision in question of this judgment, as well as to present all the evidence he considers necessary in support of his claims, including then the constitutional defense in this Court.
- In conclusion, the College considers that the applicant has not exhausted the available effective legal means, therefore the request cannot be considered in the plenary session.
FOR THESE REASONS,
The College of the Constitutional Court of the Republic of Albania, based on article 31/a, points 1 and 2, letter “d”, of law no. 8577, dated 10.02.2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania”, amended,
DECIDE:
Refusal of the case for consideration in the plenary session.
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