INTER-PARLIAMENTARY UNION PLACE DU PETIT-SACONNEX 1211 GENEVA 19, SWITZERLAND |
Case N° AL/01 - FATOS NANO - ALBANIA
Resolution adopted without a vote by the Inter-Parliamentary Council at its 158th session
Referring to the outline of the case, as contained in the report of the Committee on the Human Rights Parliamentarians (CL/158/13(a)-R.1), and to the resolution adopted at its 157th session (October 1995), concerning the case of Mr. Fatos Nano, of Albania, Taking into consideration the communications from the Speaker of the People's Assembly of Albania, dated 17 January and 16 March 1996, Also taking into consideration the observations and information supplied by the leader of the Albanian delegation to the 95th Inter-Parliamentary Conference (Istanbul, April 1996), Further taking into consideration the information provided by the source on 19 January and 12 April 1996, and at the hearing held on the occasion of the 95th Inter-Parliamentary Conference, Recalling that, in connection with emergency aid delivered by Italy to Albania in 1991, Mr. Nano was sentenced on 3 April 1994 to 10 years' imprisonment for embezzlement of State funds in favour of a third person, Mr. Giuseppe Perniola, and to 3 years' imprisonment for falsification of documents, resulting in a final prison term of 12 years pursuant to concurrent custody rules; recalling that Mr. Perniola was later found innocent by an Italian court, leading the Committee and the Council to consider that Mr. Nano's conviction for embezzlement of State funds could no longer reasonably be maintained and that his trial should be reviewed, Recalling that on 1 June 1995, a new penal law entered into force in Albania which provides for a re-evaluation of sentences if a person is (a) convicted of two or more criminal offences; (b) convicted of an offence no longer punishable under the new Code; or (c) given a lower sentence, Recalling that Mr. Nano by virtue of this provision submitted a request for a re-evaluation of his sentence; recalling further that while the request was rejected by Tepelena District Court it was subsequently accepted by the Appeal Court, which reduced his sentence by one year, Considering that on 27 November 1995 the Cassation Court overruled the Court of Appeal's decision to reduce Mr. Nano's sentence by one year, Considering the affirmation of the source that the decision of the Cassation Court is unlawful for the following reasons: (i) One of the members of the jury hearing the case was Mr. Agim Gjoleka, who had also been a member of the jury which decided on 28 July 1994 in last instance on Mr. Nano's case; this is contrary to Article 15 of the Code of Criminal Procedure, which stipulates that a judge who, alone or as a member of a jury, delivers a judgment shall be excluded from hearing the case at a higher instance or from review of the case in the event of a judgment being quashed; (ii) The Court argues that the new Criminal Code does not provide for lighter sentences for the crimes of which Mr. Nano was found guilty. According to the source, this is quite untrue since under the new Code, the crime of embezzlement of public funds (Article 135) carries a maximum sentence of 10 years' imprisonment instead of 7 to 25 years' imprisonment under the former Code (Article 62) and the crime of falsification of official documents carries a maximum sentence of 7 years' imprisonment (Article 186) instead of 8 years under the former provisions (Article 110), Considering that it transpires from the note prepared by the Cassation Court and conveyed by the Speaker of the People's Assembly on 16 March 1996 that the Court, in re-evaluating the sentence, did not compare the maximum prison terms specified in the relevant provisions but compared the prison terms handed down on Mr. Nano with the maximum term stipulated for the relevant offences in the new penal code and thus arrived at the conclusion that his prison term could not be reduced, Considering that, in the note the Ministry of Justice prepared in response to the allegation of the source regarding the participation of Mr. Gjoleka in the Cassation Court jury, it is affirmed that Mr. Gjoleka - having served since 1992 at the Cassation Court exclusively - has never taken part in a jury hearing Fatos Nano's case at the Appeal Court; noting, however, that the source referred not to Mr. Gjoleka's participation in the Appeal Court but to his participation in the Cassation Court jury which, on 28 July 1995, adopted the final verdict in the case of Mr. Nano, Considering that, according to the source, Mr. Nano's lawyer, despite the many demands from himself and Mr. Nano to the General Directorate of Prisons and the Minister of Justice, has been unable to see Mr. Nano since October 1995, the pretext being "that they are on alert or that the prison is being restructured", Considering that in the note prepared on that point by the Ministry of Justice and conveyed by the Speaker, the following explanation was offered: "the prison was being restructured, therefore with the exception of appointments with family members, other appointments were suspended according to Rules. As of 2 March 1996, after reconstruction work, lawyers can meet the client as many times as they wish after having applied in writing to the General Directorate of Prisons, according to the Rules.", Recalling in that connection that full assurances had been given to the Committee's on-site mission in December 1994 that Mr. Nano would fully enjoy his right under national law to receive visits from his lawyers, Recalling that Mr. Nano has to date not submitted a request for a review of his trial under Article 450 of the new Code of Penal Procedure; that, according to his lawyer, he will only submit it when assured of a fair trial and the possibility of re-trial as a free man, Considering that Article 454 of the Code of Criminal Procedure stipulates that the competent district courts decide on requests for suspension of the execution of prison terms, Considering that on 30 December 1995 the President of the Republic, at the request of the Socialist Party, granted a pardon to Mr. Nano, reducing his sentence by 8 months, Considering that Mr. Nano's lawyer personally wrote to President Berisha on 7 October 1995 setting out the many irregularities and manipulations in Mr. Nano's case; that to date, however, the President has not replied, 1. Thanks the Speaker of the People's Assembly for the information he provided and for his co-operation; 2. Is outraged that Mr. Nano, contrary to the law and the affirmations given to the IPU delegation on the occasion of its mission to Albania, is still not permitted regular contacts with his lawyer, and urges the authorities to comply with their commitments in this respect under national law; 3. Notes that Articles 135 (embezzlement of public funds) and 186 (falsification of official documents) do indeed provide for lighter sentences than the relevant articles in the old penal provisions; and fails to follow the reasoning of the Court; 4. Hardly understands how the Ministry of Justice could be unaware of Mr. Gjoleka's participation in the Cassation Court jury which, on 28 July 1994, delivered the final verdict in the case of Mr. Nano (Decision N 121); 5. Cannot but consider that, under national norms, the Cassation Court decision on the re-evaluation of Mr. Nano's prison term is legally flawed; 6. Remains deeply alarmed at the sequence of measures that have the effect of keeping Mr. Nano in prison, and fears that Mr. Nano's prosecution may be based solely on political considerations, overlooking national and international norms of fair trial; 7. Notes that Mr. Nano has not yet submitted a request for a review of his trial as is his right under Articles 449 and 450 of the new Code of Penal Procedure, and urges him to make use of that right; 8. Believes that the presence of international observers at such a retrial would be of assistance in guaranteeing a fair trial; 9. Hopes that, in the course of a review, Mr. Nano will be released pending trial; 10. Requests the Secretary General to convey these considerations to the Albanian authorities; 11. Hopes that the authorities will take heed in the most positive spirit of the above considerations; 12. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and to report to it at its next session (September 1996).
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