This article is about the story of several young men caught in illegal possession of military weapons in Tirana, who have been sentenced differently by the same judge for the same type of criminal charge. Lawyers say that the practice of applying double standards when it comes to the decisions is very perceptible in Albanian courts. Minister of Justice, Nasip Naço recognizes the existence of such anomalies in the justice system; however, the situation seems hopeless due to the legal obstacles.
By: Sonila Mesareja
A judge in Tirana District Court has given six different decisions for the same offense, in a short period of time. This is what you can conclude, if you analyze some of the decisions given by this judge of the Tirana District Court, Mr. Ibrahim Hoxha. Judge Hoxha became part of this investigation, not due to a random selection, but because of the decision given on a case against the defendant, Arkimed Lushaj, a singer known in the art world by his nickname “Stress“, and well known by the police as a very problematic person. Arkimed Lushajhas been previously investigated and convicted by the Serious Crimes Court on racketeering charges. He was found in possession of a pistol and as if this were not enough, he was even reacting violently with the police forces during his arrest. Lushaj was accused of committing the offense “Illegal possession of military weapons”, as provided in Article 278/2 of the Criminal Procedure Code. The prosecutor asked the court to rule for a two-year conviction in prison against the 26-year-old. The singer’s defense lawyer asked that his client be sentenced only to the time of pre-trial detention, but at the end, the court decided just to impose a fine on him.
Arkimed Lushaj was charged because on November 01, 2012, at about 2:30, he was caught in the act by the state police, at “Abdi Toptani” street in possession of a pistol with ten bullets, and he had no permission by the competent authorities to hold that gun. The technical expertise act, dated November 06, 2012 on the pistol no.10399, concluded that “The weapon, subject of this expertise is a firearm of the type LIMITETD, caliber 9 mm. The weapon is technically in working conditions and fires the bullets properly, as it results from the expertise. The judge concluded that the defendant, Arkimed Lushaj, is a mentally sane adult and as such, he is maintained responsible for the criminal conduct, as provided in Article 278/2 of the Criminal Code but the sentence would be just a fine in the value of ALL 600 thousand. However, given that his request for abbreviated trial was accepted by the court, the fine he had to pay at the end was only ALL 400 thousand.
An arrested man,being escorted to the court
This was the decision given for the singer known as Stresi, but we could not find any other “lucky” defendant sentenced by the same judge for the same type of offense with just “a fine to pay”. Someone has been sentenced to jail time, others have had the chance to have their jail time suspended by taking advantage of the conditional sentence as heads of family for a 2-year period monitored by the Probation Service. Gjuri Koka, a 35-year old from Kamza is another defendant sentenced by Judge Hoxha in April of the same year. He was charged for the same offense, “Illegal possession of military weapons and ammunition”, but was sentenced only to two months in prison, right after the case of singer “Stresi”. He was given 15 months in prison, but since his request for abbreviated trial was accepted, he had to serve only 10 months in a low security prison. The young man was found in possession of a gun with four bullets, but he made no resistance to the police. He was not previously convicted, is married and has children.
There is another case: Fatjon Liço, another young man sentenced by the same judge in the same month of the singer’s case. The prosecutor demanded a 3-year sentence in prison for the crime of “Illegal weapons’ possession”, for Fatjon Liço, only 25 years old, single and never been convicted. Judge Hoxha sentenced the defendant to one year and four months in prison, with no possibility to suspend it. The situation of the young man from Tirana is the same as that of the 35-year old from Kamza, who was caught by the police in possession of a gun, while staying in a bar with friends. When he saw the police officers, he tried to run away. However, he didn’t show resistance and neither tried to shoot the police officers at the moment of arrest, unlike the singer. At the end, he was neither sentenced to the pre-trial detention time as his attorney asked, nor to payment of a fine, as the singer, but to 1 year and 4 months to be served in a low security prison. According to the court ruling, the defendant Fatjon Liço was caught in the act by the Tirana police patrol in October 132012, at 17:30, , in possession of a pistol, type “BERETA”, no: L.98657Z, and two cartridges containing 7 bullets. “He was arrested at “Hill Kolli” street, where he lives, inside the “Red Rose” bar. The gun and bullets were found in the defendant’s jacket pocket, by the police during a routine search. The defendant was having coffee with friends, when the police showed up for a routine inspection”, this is part of the court’s decision regarding the circumstances of the arrest.
Bruno Gjata seems to have been luckier than Liço. He was arrested by the police after a grenade was found in his apartment. He was sentenced to only eight months in prison by Judge Hoxha, a sentence that was suspended and left to 2 years monitored by the Probation Office. The grenade was found in his apartment, while the police was searching Bruno Gjata’s apartment, because he was suspected for another offense. Almost the same as singer Stressi, a 63-year old from Tirana was caught in possession of a gun, during a routine police search in Elbasani Street. The defendant, Kaplan Haraçiu was sentenced to 10 months in prison by Judge Hoxha, whereas the prosecutor had asked for 2 years in prison. Did the same happen also to a 19-year old from Kosovo? During an inspection, the police found the latter in possession of a gun and a bullet cartridge. The young man said he had no conflicts, but kept the weapon only to remind him about the Kosovo war. The young man from Kosovo was sentenced to two years in prison, from the three initially asked by the prosecutor, and for the same offense as all the above-mentioned defendants. During the court session, the defense lawyer of Gani Sadiku from Gjakova, resident in Kosovo, has insisted that his client be sentenced to a fine and not to jail time, but his request was not considered by Judge Hoxha.
Justice Minister, Nasip Naco
Minister of Justice, Nasip Naço seems to be in total agreement with investigim.al. In the annual analysis of the Appellate Courts, he has pointed out the same concern about this problem, which does not involve a single criminal case, but all of them, and neither a single judge, but all of them. “It is unacceptable that the same Court of First Instance, and/or the same judge, gives different decisions for the same type of offence. In this regard, the appellate courts must be very careful to avoid such phenomenon, which in itself is perceived as a corruptive action, by both citizens, and our international partners. This requires added attention in the reasoning of court decisions, and specific and achievable tasks must be assigned to the district courts, in the cases when decisions are cancelled and cases are referred for re-adjudication”, Minister Naço said. According to the head of the Albanian justice system, the increase of accountability in the judiciary will undoubtedly require monitoring and appropriate measures to be taken in order to implement the law. With regard to the double standards applied in court decisions, we have taken the opinion of several well-known lawyers in the criminal justice field, who have often served as defense lawyers of defendants charged with this type of offense.
The criminal lawyer, Mr. Marash Ibraj, said, “I don’t want to refer to the decisions of the judge in question, but I can give you my personal opinion about this issue. If we have such different rulings for the same offense and under the same circumstances, then there is definitely something going on here, because decisions cannot differ so much from one another. I do not intend to analyze the decisions of judges, but I just want to give an example to better illustrate my answer to your question. Is there a double standard in two decisions of the Supreme Court, where a person caught in possession of a gun in his “Hammer” vehicle was given “house arrest” and a poor man from a village, who was found in possession of an old rifle that probably did not fire in years, was rejected the request for house arrest and was sentenced to prison time? This is my question, which I believe answers your question”, this was Mr. Ibraj’s comment. On the same matter, we asked another lawyer, Mr. Ibrahim Lahi, who said, “Of course, when decisions are so different, there is something behind. The situation is more serious when a higher-level court upholds these decisions, without even studying them. Therefore, all the levels of the judiciary should be monitored. The judge argues a decision based on his/her inner conviction, and this is something they often abuse with, because as a criminal offense, the law provides for the sentence to be from a simple fine to 7 years in prison, whereas, with the new law, the term has increased to15 years. I think that the judge should give a decision also based on the defendant’s family situation and social status, and not abuse with that.
Another lawyer we asked for an opinion was Mr. Arian Salati, who said, “When under the same circumstances, for the same type of offense, and when the defendants have never been convicted, different decisions are given, which differ in terms of years, not months, certainly there is something wrong. This is all I have to say. ” At the end, we spoke with the head of the Criminal Lawyers Association, Mr. Sajmir Visha, who said that judges create their own convictions regarding the decisions they make, but they cannot abuse and go from one extreme to the other for the same type of offense. We do not want to have equal decisions, but we do not want to have such drastic differences either. There have been a lot of such cases with persons in prison that were sentenced for “Illegal possession of weapons”, when the weapon in question was just a baseball bat. How can you say a baseball bat or a pair of gloves bought in the market is a weapon? These are some of the anomalies in the Albanian justice system and people risk serving years in prison only for being caught in possession of goods sold in the market”.
Investigim.al contacted the Deputy Head of the High Council of Justice, Mr. Elvis Çefa, and asked him about the double standards observed in Judge Hoxha’s decisions. Mr. Çefa was aware of the matter, but said the institution he leads is powerless when it comes to control the judges’ decisions. He stated, “It is true that some individuals have accused some judges for the double standards they use in adjudicating the same type of offense. However, as the High Council of Justice (HCJ), we cannot control the judges’ decisions. We only inspect the procedural aspect of adjudication, thus, whether the judge has violated the procedure or not. I will illustrate this using the case of Judge Neritan Tabaku in Durrësi. He was charged only for the delay in announcing the decision for the court case against Ilir Xhakja, not for his decision to release him. Furthermore, having the decision upheldby another level of the judiciary, makes it even harder to inspect the decision of a judge”.
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