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The Constitutional Court has rejected the request to revoke the security measure, clarifying the decision for Jamarbër Malltez

2025-01-15 20:10:37Aktualitet SHKRUAR NGA REDAKSIA VOX
The Constitutional Court has rejected the request to revoke the security
Jamarber Malltezi

The Constitutional Court has released the decision for Jamarbër Malltez, the son-in-law of former Prime Minister Berisha.

In a lengthy decision, the Constitutional Court argues the reasons why Malltez's request, which sought the annulment of the prison and house arrest decisions imposed on him in the Partizani affair file, was rejected.

Excerpt from the Constitutional Court decision

93. As regards the criterion of proportionality, the Court will next analyse the aspects of necessity, appropriateness and severity of the measure in relation to the provisions of Articles 228 et seq. of the CPC. In the constitutional judgment regarding the necessity of interference with the applicant’s constitutional rights, the Court first analyses whether the specific security measures imposed on the applicant are necessary to achieve the legitimate aim of the progress of the criminal proceedings in the context of which they were imposed. The Court then assesses whether the measures imposed are appropriate to achieve this aim. Finally, the Court assesses whether the legitimate aim of the progress of the criminal proceedings could have been achieved by imposing less severe measures. In this context, the Court has emphasized that, based on the principle of subsidiarity, it is up to the courts of ordinary jurisdiction, in addition to applying substantive and procedural criminal law, to also take into account the jurisprudence of the Court and the ECHR (see decision no. 81, dated 21.11.2024 of the Constitutional Court).

94. In the present case, the Court finds that the Appeals Court has correctly assessed the conclusion of the First Instance Court regarding the existence of the condition set out in Article 228, point 3, letter “b”, of the CPC, specifically the risk that the applicant would abscond, while, contrary to that court, it assessed that the condition set out in letter “c” of this Article was not met, because there was no evidence supporting the suspicion that he could commit serious crimes or the same as those for which he was being prosecuted, since he had not been previously convicted, and that the liquidation of the company “Homeplan” sh.pk could not be considered as a condition for the restriction of personal freedom, within the meaning of Article 228, point 3, letter “c”, of the CPC. While regarding the applicant's request for the imposition of the measure "Property Guarantee", the Appeals Court of Appeals has assessed that the imposition of the security measure or its replacement could not be assessed separately from the criteria of suitability, proportionality and necessity, therefore, taking into account the social danger of the criminal offenses for which he was suspected, this request could not be accepted. Under these conditions, the Appeals Court of Appeals has decided to change the measure "Prison Arrest" imposed on the applicant to "House Arrest", as well as his obligation not to leave the apartment and not to communicate with other persons, with the exception of those who live with him (see pages 180-183 of the Appeals Court of Appeals decision).


95. The decision of the Appeals Chamber was subsequently assessed as correct by the Supreme Court in terms of the principle of proportionality. According to the Supreme Court, the Appeals Chamber had exhaustively reasoned the existence of a risk that the applicant would abscond, as well as the imposition of the security measure “house arrest” on him, due to the absence of a risk that he would commit serious crimes or crimes of the same type as those for which proceedings were being conducted. Similarly, the Supreme Court assessed as unfounded the applicant’s claims regarding the modalities of the implementation of the security measure “prison arrest”, with the argument that the second paragraph of Article 237 of the CPC left the determination of the modalities of the execution and supervision of the monitoring of the measure imposed to the discretion of the court (see pages 76-78, paragraphs 31-38 of the Supreme Court’s decision).

96. In the analysis of the above judicial decisions for the purposes of assessing the principle of proportionality, the Court, at the end of the discussions, in application of Article 72, paragraph 1, of Law No. 8577/2000, did not reach the required number of votes for decision-making, according to the provisions of Article 133, paragraph 2, of the Constitution, also detailed in Article 72, paragraph 2, of Law No. 8577/2000, and its positions were divided in two directions.

97. According to one position 1, the personal security measure “House arrest” imposed on the applicant is in direct proportion to the legitimate aim of the progress of the criminal proceedings and in accordance with the security needs and the importance of the criminal fact for which he is suspected and the sanction provided for by law for those criminal offences, while also taking into account the personal indicators of the applicant. This conclusion is based on the reasoning of the decisions of the Court of Appeal and the Supreme Court, which have provided an exhaustive answer to the applicant regarding the need, necessity and severity of the personal security measure of house arrest in the context of the circumstances of the specific case and according to the specific rules of the CPC. Specifically, the Court of Appeal has reasoned for “the principle of proportionality, emphasizing the importance of balancing procedural interests with personal ones, with the aim of imposing an appropriate, objective, unbiased and tolerable coercive measure on the applicant”. It stated in its decision that it was “guided by the principle of legality and gradualness to select the personal security measure that meets the needs of the criminal proceedings and that is most appropriate in relation to the specific case and the evidence presented”. According to the Court of Appeal, the measure of house arrest guarantees the presence of the applicant in the proceedings; it respects the principle of proportionality, appropriateness and gradualness, because it is recognized by the legislator as an alternative to detention due to the maximum coercive power it offers, which is also in direct proportion to the importance of the criminal facts and the sanctions provided for the specific criminal offenses for which he is suspected. The reasoning of the Court of Appeal was not violated by the Supreme Court, which assessed that the reasons in the appeal related to the proportionality of the security measure clearly have a genuine factual evaluative character, which is an exclusive attribute of the courts of fact. For these reasons, the applicant's claim that the measure imposed on him is not proportionate is unfounded.

According to another position,2 the ordinary courts have failed to reason to the extent and level required by the interference with constitutional rights and freedoms, in order for it to be considered proportional and in this regard, to reason even if it was appropriate. They have also failed to analyze whether another measure of a personal nature or even a different attitude regarding the prosecution's request would not be able to ensure the smooth conduct of the criminal proceedings or would put them at risk. The reasoning of the Appeals Court of Criminal Appeals for the imposition of the personal security measure "House arrest", based on suspicions of committing a criminal offense and the risk of the applicant's flight, is insufficient in constitutional terms to justify the need for this interference. The mere fact that the security measure is an interim measure, granted during an ongoing criminal proceeding, does not mean that it justifies the lack of analysis by the court regarding the fulfillment of the conditions and criteria that justify the measure restricting freedom. In this regard, the court decisions have not reasoned on those causes and elements of the criminal proceeding that have led to the existence of the suspicion of the applicant's escape/removal, with the aim of avoiding the criminal process, also related to his personality, profession and other aspects of his figure and private and professional life. On the other hand, the courts have not justified the need for intervention either in terms of the risk of hindering the progress of the criminal proceeding, taking into account the stage in which this proceeding is, i.e. to guarantee that the obtaining or authenticity of the evidence of this proceeding is not jeopardized (or the poisoning of the evidence). For this reason, this constitutes sufficient reason to find a violation of the principle of proportionality in terms of the element of necessity related to the appropriateness of this measure based on the obligations established by Article 17 of the Constitution. 99. As regards the above, as regards the claim for a violation of the principle of proportionality, as part of the substantial aspect of personal freedom, the Court notes that, in the circumstances where a majority of five judges was not formed, within the meaning of Article 73, point 4, of Law No. 8577/2000, this claim is considered dismissed.

In the above, as regards the claim for violation of the principle of proportionality, as part of the substantial aspect of personal freedom, the Court notes that, in the circumstances where a majority of five judges was not formed, within the meaning of Article 73, point 4, of Law No. 8577/2000, this claim is considered dismissed.


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