DEDJA proti Albánii

THIRD SECTION

DECISION

Application no. 32489/19
Bashkim DEDJA
against Albania

The European Court of Human Rights (Third Section), sitting on 15 October 2024 as a Committee composed of:

Ioannis Ktistakis, President,
Darian Pavli,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 32489/19) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 June 2019 by an Albanian national, Mr Bashkim Dedja (“the applicant”), who was born in 1970, lives in Tirana and was represented by Mr L. Bianku, a lawyer admitted to practice in Albania;

the decision to give notice of the complaints under Articles 6 and 8 of the Convention to the Albanian Government (“the Government”), represented by Mr O. Moçka, State Advocate General, and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by Res Publica, which had been granted leave to intervene by the President of the Section;

the decision by a Chamber of the Court to reject the request from the applicant for the recusal of Darian Pavli, the judge elected in respect of Albania (Rule 28 § 4 of the Rules of Court);

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns vetting proceedings resulting in the applicant’s dismissal from the judiciary.

2. The applicant started his judicial career in 1993, served in the Durres Court of Appeal from 1998 to 2010, and most recently served as a judge of the Constitutional Court of Albania (with a single nine-year tenure to end in 2019) and as its President.

3. One of the applicant’s brothers, L.D., owned a flat in Golem in the municipality of Kavajë. In 2004 the applicant signed an electricity-supply contract for that flat and used it at times over the following years; he did not declare that use in annual declarations of assets.

4. Within the vetting process before the Independent Qualification Commission (IQC) and the Special Appeal Chamber (SAC) (see Xhoxhaj v. Albania, no. 15227/19, 9 February 2021), in 2017 the applicant submitted a vetting declaration of assets. He did not declare his use of the flat in Golem. Replying to a questionnaire from the IQC, he stated that he had used that flat occasionally, and he had signed the above-mentioned contract because he worked nearby in Durres at the time and L.D. resided elsewhere.

5. The IQC examined various matters relating to the flats of 98 sq. m and 146 sq. m in Tirana and to the use of the flat in Golem. By a majority decision on 13 June 2018, the IQC confirmed the appointment of the applicant as a judge of the Constitutional Court.

6. The Public Commissioner (PC) appealed to the SAC, seeking the applicant’s dismissal from office arguing, inter alia, as follows.

(a) Under applicable regulations, an electricity-supply contract was concluded with the owners. The contract for the flat in Golem brought the applicant within the scope of users or persons enjoying a “real right” under Article D of the Annex to the Constitution; the owner of the flat was “another related person”, for whom the lawfulness of the source for acquiring the flat had to be proven. L.D.’s lawful income had been insufficient to justify his assets.

(b) As to the flat of 98 sq. m, the applicant and M.D. (his other brother) shared joint ownership of it. In the declaration for 2003 the applicant indicated as a source for acquiring that asset his salary and the income received by M.D. while abroad since 1993. However, in the vetting declaration in 2017 the applicant declared his full ownership and indicated his savings and income as the sources. He explained that in 1997 the brothers had acquired the flat, intending to pay for it together, even though the initial contract had only been in the applicant’s name; having obtained a residence permit in Greece and having created a family there, M.D. had lost interest in the flat. The PC argued that Article D § 2 of the Annex to the Constitution and section 32 of the Vetting Act (VA) required the applicant to submit evidence from M.D. and to provide details and chronology concerning the brother’s contribution and the re-assignment of his share in favour of the applicant.

(c) The applicant had declared such sources as a bank loan, his family savings and loans of 10,000 euros (EUR) and EUR 15,000 from E.C. and M.D. respectively. However, according to the PC’s analysis they had not had sufficient and lawful income to lend the money. In 2014 M.D. obtained a bank loan of EUR 25,000, while he had given the applicant the interest-free loan of EUR 15,000 in 2013.

(d) Based on the data from the file before the IQC, there had been disparity between the applicant’s income and expenditure (living, travel and other expenses) with a negative balance ranging between 21,318 and 3,516,645 Albanian leks (ALL) per year from 2010 to 2015 for a total of over ALL 4,560,000.

7. The applicant received the PC’s appeal in July 2018 and was given access to the case file in October 2018. In December 2018 he made written submissions to the SAC. He argued, in particular, that he had not declared his use of the flat in Golem because he did not consider that there had been any specific civil-law relationship to declare for occasional holiday use of the flat; that his payment for the electricity did not prove that he had been its real owner. He submitted documents relating to his lenders and their funds.

8. The applicant also submitted (i) a letter dated 11 December 2018 and documents from the Constitutional Court, to confirm that it had incurred expenses of ALL 1,441,927 in 2011 and 2013 to 2014 for his official trips, and to exclude that amount from his personal expenditure; (ii) a statement from M.D. confirming his income; and (iii) information from the Internet, to recuse the PC.

9. On 12 December 2018 the applicant participated in the public hearing before the SAC. On 17 December 2018 the SAC set aside the IQC’s decision, providing the following reasoning.

(a) The documents mentioned in paragraph 8 above were unnecessary (panevojshme) within the meaning of section 49 (6) (a) of the VA (see Xhoxhaj, cited above, § 146), and thus were returned to the applicant. In particular, M.D.’s recent statement was substantially the same as the evidence already in the file.

(b) Under Article D § 1 of the Annex to the Constitution, persons to be vetted were subject to the declaration and control of assets, in order to identify those who owned or used more assets than could be legally justified, and those who had not accurately and completely declared assets. Under Article D § 5, a presumption in favour of the dismissal from office applied, which the vetting subjects had the burden of disproving, where they endeavoured to conceal or make an inaccurate disclosure of assets (përpiqet të fshehë ose të paraqesë në mënyrë të pasaktë pasuritë) in their ownership, possession or use. The applicant had been using the flat in Golem for years but had not declared it, neither in the vetting declaration nor in annual declarations. The SAC concluded that the applicant “had inaccuracies in the declaration [pasaktësi në deklarim] regarding the use of this property, that fact contradicting Article D §§ 1 and 5” (see Xhoxhaj, cited above, § 108).

(c) The applicant had had insufficient legally justified resources for the flat of 98 sq. m commissioned in 1997, including for the first instalment of ALL 68,117, having an overall negative balance of ALL 1,035,652 at the relevant time. It was not proven that M.D. had contributed to the financing of the flat. He had been declared as the joint owner in the declaration for 2003 whereas the applicant had been declared as the sole owner in the vetting declaration. In any event, M.D.’s contribution would have to be declared in the vetting declaration, even if subsequently repaid as alleged. The applicant had not demonstrated the lawful source of M.D.’s income.

(d) In 2013 the applicant had received private loans of EUR 10,000 and EUR 15,000 from E.C. and M.D. to finance, in part, the flat of 146 sq. m in Tirana. During the vetting process the applicant had to justify the lawfulness of the loaned funds and to support that with evidence, as required by Article D § 3 of the Annex to the Constitution, section 32 (4) of the VA and HIDAACI’s Instruction no. 4095 of 10 October 2016. He failed to prove that M.D. and E.C. had paid taxes on their income earned abroad which he claimed to have been the source of the loans. Assessing the evidence submitted by the applicant under section 49 (5) of the VA, the SAC concluded that (i) it did not prove that taxes had been paid on M.D.’s income in Greece, and (ii) while EUR 17,741 could be considered E.C.’s income from a lawful source in Italy and for which taxes had been paid, the same had not been proved for the alleged income of EUR 41,994 in 2010 to 2013. Under the vetting legislation, only income on which relevant taxes had been paid could be considered “lawful income” capable of justifying personal spending or assets acquisition.

(e) “Considering all the documents”, the SAC concluded that the applicant had had a positive financial balance (of liquid assets) for 2013 and a combined negative balance for 2011, 2012, 2014 and 2015 for the sum of ALL 1,068,000 (approximately EUR 7,700).

The SAC concluded that the applicant owned more assets than he could legally justify and had not fully declared the assets in his use; that the above findings disclosed that he did not reach a reliable level in the assessment of assets in accordance with sections 59 (1) (a) and 61 (3) of the VA (see Xhoxhaj, cited above, § 151).

10. In separate proceedings in 2021, courts approved the seizure of certain properties allegedly belonging to the applicant. On 26 June 2023 he was convicted under Article 257/a of the Criminal Code (failure to declare, non‑disclosure, concealment or false declaration of property by elected persons and public servants or any other person having a legal obligation to declare). It was considered that he was the beneficial owner of the flat in Golem and had concealed this. The applicant’s appeal against that conviction is pending before the Court of Appeal.

THE COURT’S ASSESSMENT

1. Scope of the case

11. In the application form in 2019 the applicant complained under Article 6 that he had not had a fair hearing before the Special Appeal Chamber (SAC) and that his dismissal from office violated Article 8 of the Convention. In 2023 these complaints were communicated to the respondent Government. The remainder was declared inadmissible by the Vice-President of the Section, and the applicant was informed that that decision was final.

12. In 2024 in his observations in reply to the Government’s observations on the communicated complaints, the applicant (i) elaborated on the complaints that were substantially the same as the ones which had been declared inadmissible; and (ii) referred, for the first time, to other matters, which were not an elaboration of the communicated complaints. Should he be understood as intending to refer to the Court new claims relating to the SAC’s decision in 2019, they were not lodged in compliance with Rule 47 §§ 1, 2 and 5.1 of the Rules of Court. Thus, those submissions fall outside the scope of the present case as it stands now, and the Court will not examine them (see Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, §§ 137 and 144-48, 1 June 2023, and Gashi and Gina v. Albania, no. 29943/18, §§ 75 and 79, 4 April 2023).

2. Article 8 of the Convention
   1. The parties’ submissions

13. The Government stated that since 2003 Albanian legislation provided for the legal requirement for the declaration of assets and the justification of their legal origin, and for liability for non-declaration or false declaration. As followed from the administrative investigation, the applicant had used the flat in Golem and L.D. had not resided there. He had concealed the use of that flat for years, which was a serious ethical and legal violation.

14. The applicant argued that his dismissal from office had not been “in accordance with the law”, in particular, because section 61 (3) of the VA required proving that the vetting subject had wilfully concealed assets. His dismissal pursued no legitimate aim and was disproportionate, as it was based on minor inaccuracies in his declarations. M.D. and E.C. had been immigrants in Greece and Italy for many years and had paid taxes on their income there, as proven by the documents in the file. The SAC’s findings on the flat in Golem were arbitrary and, in any event, only disclosed a minor inaccuracy. It had been bought by L.D., and the applicant had had no obligation to declare it, or to justify the legal origin of L.D.’s funds for acquiring it.

15. The third-party intervener argued that Article D §§ 3 and 4 of the Annex to the Constitution and section 3 (19) of the VA had to be interpreted to the effect that any income-generating activity, which was not illegal, had to be considered as a lawful source of income; the strict interpretation of that lawfulness as always requiring payment of taxes was excessive and overlooked the informality of transactions in Albania, especially between family members such as those gaining income abroad. The SAC had no specific standards to assess compliance with the obligation to prove the legality – including the lawful origin – of another person’s (for instance, a lender’s) foreign income; the automatic declaration of such income as unlawful with reference to the tax obligations was excessive and unreasonable as entailing the dismissal from office under section 61 (3) of the VA; a lighter standard of proof under section 32 (1) needed to be applied.

2. The Court’s assessment

16. The applicant’s dismissal from office interfered with his right to respect for his private life (see Thanza v. Albania, no. 41047/19, §§ 131 and 135, 4 July 2023) and would violate Article 8 of the Convention unless it can be justified as being in accordance with the law and necessary in a democratic society to achieve a legitimate aim.

17. The applicant was dismissed from office for failing to declare in the vetting declaration the use of an asset owned by his brother. He was not dismissed for failing to justify the lawful origin of that person’s funds for acquiring that asset. It is uncontested that since 2003 Albanian law required serving judges to declare such use (see also Xhoxhaj, cited above, §§ 108 and 201-02). The applicant’s other arguments contesting the lawfulness of the interference under Article 8 are similar to those already rejected (see Thanza, cited above, §§ 141-45, with further references), or are unrelated to the findings made under section 61 (3) of the VA on the assessment of assets. The questions as to whether the SAC established that the applicant had concealed that use and his intent to conceal it concern the application of the law, as interpreted by the SAC, to the circumstances of his case, and the allegedly disproportionate effects of that interpretation. Those matters are related to the assessment below of whether the interference was necessary in a democratic society (see Thanza, cited above, § 144). It follows that the interference was “in accordance with the law” in that regard.

18. The Court also rejects at this juncture the applicant’s arguments challenging the legitimate aims pursued by the interference in the present case (as in Thanza, cited above, §§ 146-47). It remains to be ascertained whether it was necessary in a democratic society and proportionate to achieve those aims, in the context of restoring public trust in the justice system through the vetting process.

19. The SAC relied on Article D § 5 of the Annex to the Constitution to conclude that a separate ground for dismissal was related to the flat in Golem (compare Thanza, cited above, §§ 136-37), where a presumption in favour of the dismissal from office applied (see paragraph 9 above). For the purposes of the vetting process, the SAC attached weight to three unrebutted facts: that the applicant had used that flat for many years; that he had not declared that use; and that the electricity-supply contract had been concluded in his name. The applicant’s explanation for the omission to declare the use of the flat in the vetting declaration was related to his incorrect interpretation of the legislation. He provided no other convincing explanation to the SAC for that omission, or for the above-mentioned contract.

20. Judges, who, by the nature of their work are considered to be guarantors of the rule of law, must be required to meet particularly high standards of integrity in the conduct of their private matters out of court (see Xhoxhaj, § 407 in fine). The national authorities are best placed to assess the specific difficulties in safeguarding the democratic order in their State and must therefore be accorded some discretion as regards this country‑specific and complex assessment which is of central relevance to the legislative choices (see Bala v. Albania (dec.), no. 21141/20, § 72, 9 April 2024). Liability for breaching the obligation to declare in that context, in principle, could be justified as “necessary in a democratic society” in pursuance of the legitimate aims.

21. In the Court’s view, that was a significant failure on the part of the applicant to have not declared – despite the requirements of Albanian law and without any convincing explanation within the vetting process – the repeated, continued, and gratis use of a significant asset (the flat) over a decade. He had been a senior judge during that time and held the highest judicial position in the country during the vetting process.

22. The applicant has not alleged, and the Court has not identified, any serious shortcomings in the decision-making process by which the factual findings relating to the flat in Golem were reached by the SAC (see also paragraph 30 below). Those findings, the interpretation of national law and conclusions by the SAC do not appear arbitrary or manifestly unreasonable. The Court has been given no reason to depart from them and considers that the reasons adduced by the SAC were both relevant and sufficient. Lastly, it is noted that in his application to the Court the applicant raised no specific arguments contesting the justification of his dismissal from office on that account (see also Xhoxhaj, cited above, §§ 412-13, and Nikëhasani v. Albania, no. 58997/18, §§ 126 and 128-29, 13 December 2022, as to the remaining, more general, arguments).

23. In view of the foregoing, the dismissal from office was proportionate to the legitimate aims under Article 8 § 2 of the Convention on that ground in the specific circumstances of the case.

24. Given that conclusion, it is not necessary to delve into whether it was foreseeable to the applicant that he might subsequently be required to prove that his lenders had paid taxes on their foreign income, whether it was proportionate to require him to prove that in the vetting process or whether the interference was also justified by the SAC’s findings and conclusions on other grounds (compare Thanza, cited above, § 160).

25. Accordingly, the complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. The complaint under Article 6
   1. The parties’ submissions

26. The applicant argued that the criminal limb of Article 6 was applicable, inter alia, because of the serious professional consequences and because he was criminally prosecuted (see paragraph 10 above). He had not been given any adequate opportunity to study the entirety of the documents collected by the SAC and the PC, nor sufficient time to prepare his case because the appeal proceeding had lasted less than five months, and he was surprised by the SAC’s reasoning. His dismissal was considered for the first time on 12 December 2018. The dismissal decision was taken without any knowledge in advance nor argument or debate on the disciplinary offence he had allegedly committed. The PC relied on “seemingly undisclosed facts and circumstances” as to M.D.’s “loan agreement” (which he denied) and the claim about the applicant’s income-expenditure disparity for 2010 to 2015. The SAC did not adduce adequate reasons for rejecting some evidence as “unnecessary” and did not assess the evidence admitted to the file.

27. The Government argued that the criminal limb of Article 6 was inapplicable, and that the applicant had been afforded an effective opportunity to plead his case before the vetting bodies.

2. The Court’s assessment

28. Even assuming the actus reus of the separate criminal prosecution since 2021 (see paragraph 10 above) overlapped with the subject-matter of the vetting case finally decided in 2019, that did not make the criminal limb of Article 6 applicable to the latter (compare, albeit in a different context, A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 122-34, 15 November 2016). The applicant’s remaining arguments are similar to those dismissed in Xhoxhaj (cited above, §§ 235 and 240-46). The Court finds no reason to hold otherwise in the present case.

29. The civil limb of Article 6 § 1 concerning the applicant’s “civil rights and obligations” was applicable (see Xhoxhaj, cited above, §§ 236-38). He was a party in proceedings which were disciplinary in nature and based on preliminary findings of fact and law initially made by way of an administrative investigation and – in the present case – on the IQC’s conclusions on the merits of the case and on the points of appeal raised by the PC before the SAC (compare Thanza, cited above, § 97). Thus, the applicant had to be afforded an adequate opportunity to oppose those points of appeal and to plead his case in an effective manner (ibid., and Sevdari v. Albania, no. 40662/19, § 122, 13 December 2022).

30. There were no serious shortcomings as to the applicant’s right to a fair hearing with regard to the flat in Golem. He has raised no admissible issue to contest that it had been examined in a fair manner before the IQC and then the SAC. He was afforded an adequate opportunity to oppose the PC’s points of appeal and to plead his case on that matter in an effective manner.

31. As to the other aspects of the vetting case and the applicant’s procedural allegations linked to them (see paragraph 26 above), the PC’s arguments concerning the applicant’s income-expenditure disparity were stated in the PC’s statement of appeal. It also presented the calculations for each relevant year, as specified, based on the data taken from the file before the IQC, to which the applicant had had access. As to M.D.’s “loan agreement”, it appears that this concerned a bank loan allegedly received by him in 2014. That was mentioned in the PC’s appeal and the applicant was afforded an opportunity to comment on it. That circumstance then played no particular role in the SAC’s findings. There is no evidence that the applicant was “taken by surprise” (see Vegotex International S.A. v. Belgium [GC], no. 49812/09, §§ 134-36, 3 November 2022) by any important element of the SAC’s decision and which would substantially differ from what had been examined by the IQC, or raised by the PC before the SAC, which had full jurisdiction over the questions of fact and law (see Xhoxhaj, cited above, §§ 286, 334 and 416).

32. As to the documents rejected by the SAC as “unnecessary” (see paragraphs 8, 9 and 29 above), it was within that body’s competence to decide on the relevance of the evidence submitted. Even assuming the SAC did not consider the documents from the Constitutional Court for a secondary aspect of the vetting case, that did not affect the overall fairness in the present case. As to M.D.’s statement, the applicant confirmed to the SAC that it was substantially the same as the evidence already in the file. The documents relating to the PC had no direct bearing on the (re-)assessment of the vetting case. The SAC’s handling of that proposed evidence was not arbitrary or manifestly unreasonable under the civil limb of Article 6 § 1 (see Thanza, § 102, and Sevdari, §§ 125 and 130-31, both cited above; and Grosam v. the Czech Republic [GC], no. 19750/13, §§ 130-33, 1 June 2023).

33. Some of the SAC’s additional findings related to events which took place a significant period of time ago and concerned other peoples’ tax obligations (for general principles relevant to Article 6 § 1, see Xhoxhaj, §§ 348-49; Sevdari, § 130; and Thanza, §§ 103‑07, all cited above). It does not appear that the applicant formally asserted that any evidence related to those findings was no longer available (see Xhoxhaj, §§ 136 and 351). Those concerned were cooperative with the vetting subject (the applicant) and the vetting bodies and showed no obstruction or hostility, assisting him in gaining access to documents. Another aspect of the applicant’s allegation in that regard is that he submitted documents to prove others’ past fiscal compliance, but the SAC did not assess them. In the Court’s view, the SAC did assess the applicant’s evidence but found it insufficient or unconvincing (see, specifically, paragraphs 7 and 9 above). The Court does not have any reasons to reach a different conclusion under Article 6 § 1 (compare Sevdari, § 131). In the circumstances of the present case (see also paragraphs 23 and 30 above) the overall fairness of the vetting proceedings was not affected on that account either.

34. The applicant’s remaining allegations do not disclose an appearance of a violation of his right to a fair hearing under Article 6 § 1 either (see Nikëhasani, cited above, § 78).

35. The complaint under Article 6 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 November 2024.

Olga Chernishova Ioannis Ktistakis
Deputy Registrar President