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From Eduard Halimi/ 5 reasons to Berisha

2024-04-08 12:25:00, Opinione Eduart Halimi
From Eduard Halimi/ 5 reasons to Berisha
Former Minister of Justice, Eduard Halimi

5 reasons why the decision to ban communication for Sali Berisha is a flagrant violation of the ECHR, the decisions of GJENDJ, the Constitution, the CPC and therefore an illegal measure!

On December 30, 2023, GJKKO publicly announced the decision against Sali Berisha, placing her under "house arrest" and prohibiting her from COMMUNICATION with any other person, except those who live with her. According to her, the basis for this is Article 237/2 of the Criminal Procedure Code.

The decision of GJKKO has and may have many other problems that I am convinced that the lawyers of Mr. Berisha have followed them and are following them closely in the judgment steps, but I want to focus in this short analysis only on one of them, analyzed in 5 points related to my knowledge of public and private law, points of which are related to the standards of the European Convention (ECHR) and the Strasbourg Court (ECHR)

This unprecedented decision (prohibition of communication) also applies to persons placed in "prison detention" or those accused of war crimes even by the Hague Court (who can communicate and meet with people other than those they live with) there are several serious violations of the European Convention on Human Rights, the ECHR, the Constitution and the CPC making this an illegal measure.

1. The ban on Sali Berisha's communication was made by GJKKO in 2023 is an illegal measure as it is based on a provision that was ABOLISHED in 2017 (so 6 years ago) and as such this ban was made "without law" by seriously violated the Code of Criminal Procedure (CPC). (See screenshots from both KPP).

From Eduard Halimi/ 5 reasons to Berisha

The decision of GJKKO to ban communication is based on article 237/item 2 of the Criminal Code (year 1994) which provided for "banning communication for those arrested at home" as a measure. This article, this provision, 237/2 was repealed in the Criminal Procedure Code in 2017 by Law 35/2017 dated 30.03.2017.

"Restriction of the defendant to communicate with other persons with the exception of those who live with him", no longer exists in any Albanian law since March 30, 2017 when the law 35/2017 was approved. The only law that provided for it was the old Code of Criminal Procedure (CPC) and since 2017 it DOES NOT EXIST IN ANY LAW.

Consequently, the security measure was given in the absence of a law and is a punishment/sanction without a law, and in flagrant contradiction with the new Code of Criminal Procedure which was in force (and still is) on December 30, 2023 when the decision was given . For illustration, the analogy would be the same as if the Court sentenced someone to death in 2024, while this punishment no longer exists in Albania since the Ratification of protocol 6 and 13 of the ECHR, respectively in 2000 and 2007. So just as the death penalty no longer exists as above, there is no longer even a "Communication Ban" of the person under investigation or personal security measures!

2. The decision seriously violates Articles 17 and 22 of the Constitution.

The decision to ban a person's communication constitutes a restriction of freedom of expression according to Article 22 of the Constitution and therefore, like any other restriction, it must be, firstly, by law, and secondly, meet the criteria of Article 17 of the Constitution . When the ban becomes "lawless" after the Criminal Procedure Code repealed provision 237/2 in 2017 and no longer prohibits the communication of the subject, then automatically as a "lawless" decision it conflicts with the Constitution of Albania [Articles 17 and 22 of the Constitution].

From Eduard Halimi/ 5 reasons to Berisha

3. The decision seriously violates Article 10 of the European Convention (ECHR)

Prohibition of communication of the person, to whom the measure of house arrest has been assigned, when it is done without law, violates Article 10 of the European Convention on Human Rights.

This position was held by the Strasbourg Court in the case of N. v. Russia (No. 2). Albanian law does not provide for the prohibition of communication, so such a measure given by the Albanian courts remains a measure given "without law", therefore the ECHR automatically qualifies it as a violation of its Article 10.  

4. The decision contradicts the decisions of the Strasbourg Court regarding the restriction of communications

In the case of N. v. Russia (no. 2), the Strasbourg Court held that: "the risk of flight and the limitation of freedom of expression are not related to each other, and therefore the prohibition of communication lacks a legitimate aim by came thus in violation of Article 10 of the Convention".

To return to the present case, the risk of leaving the country and the restriction of communications are completely unrelated. It is enough to remember here that even those sentenced to prison for serious crimes in Albania, or even the defendants for war crimes in the Hague Court, communicate not only with those who live together but with many other visitors, including the Albanian prime minister, or politicians others in the region.

5. The decision contradicts Article 18 of the ECHR and the decisions of the Strasbourg Court regarding pluralism and functional political democracy

Sali Berisha was the most active opposition deputy of the Assembly until December 31, 2023, and from this illegal security measure he is prohibited from contributing to the parliamentary debate, or press conferences at the headquarters of the Assembly, or of the political entity that is opposed to the government. According to Strasbourg (ECtHR) "When the determination of the measure of security is illegal, and the prohibition of communication does not pursue a legitimate goal, but serves to suppress the pluralism of political opinion, there is a violation of Article 18 of the Convention on Human Rights [N . against Russia (No. 2)]

In conclusion: a security measure which is granted "without the law" is in flagrant contradiction with the Constitution, the ECHR, the Decisions of the ECtHR, the Code of Criminal Procedure in force, and is automatically an illegal security measure!

11:04 Opinione Grigels Muçollari

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