CASES SUBMITTED TO THE INTER-PARLIAMENTARY COUNCIL

Case No AL/01- FATOS NANO - ALBANIA1

A. SOURCE

Mr. Luan Hajdaraga and Mr. Leontiev Cuçi, members of the Albanian Parliament and of the Committee on Human Right of the Albanian Parliament (initial communication: 13 October 1993)

B. LATEST COMMUNICATION OF THE AUTHORITIES OF THE COUNTRY CONCERNED

1. Communication from the Speaker of the Albanian Parliament, dated 9 August 1994, annexes transmitted on 9 September 1994.

2. Hearing of the Albanian delegation on the occasion of the 92nd Inter-Parliamentary Conference (September 1994).

C. OUTLINE OF THE CASE

The current evidence on file is as follows:

Mr. Fatos Nano, former Prime Minister of the Republic of Albania and President of the Socialist Party, currently the main opposition party, was arrested on 30 July 1993 on the charges of abuse of power and falsification of official documents in connection with emergency aid delivered by Italy to Albania in 1991. The indictment was allegedly notified to him on 9 October 1993. Following the closure of the investigations on 14 February 1994, the trial started on 5 March 1994. On 3 April 1994, Mr. Nano was sentenced to 12 years imprisonment for having embezzled State funds in favour of third persons and for falsification of documents. On 26 May 1994 the Court of Appeal confirmed this judgment and on 28 July 1994 the Court of Cassation, the third and last instance of the Albanian judiciary system, upheld the decisions of the two previous judicial instances.

1. Political context as described by the source:

Mr. Fatos Nano was Prime Minister of Albania from 25 February 1991 to 4 June 1991. After his government resigned, a provisional government was set up which handled State affairs for ten months, until a new government was elected in April 1992. As this latter did not reinstate the annulled Constitution and did not adopt a new one, the Socialist Party urged Parliament to adopt a draft Constitution. In the light of that body's failure to react, and in view of the difficult transitional period the party was experiencing in the wake of the Communist era, the three opposition parties, namely the Socialist Party, the Social Democrat Party and the Human Rights Party, decided to bring pressure to bear by

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1. The Parliament of Albania is affiliated to the InterParliamentary Union.temporarily leaving Parliament, which they then did as of 16 june 1993. However, once the new parliamentary session began in September 1993, the Socialist Party resumed its activities in Parliament. A new Constitution has since been adopted.

Following the worsening of the political and economic situation in Albania, the Socialist Party, which had embarked on a fight against corruption and had stated that it was against the class struggle, became quite popular with the people, who were dissatisfied with the government in power. The policy conducted by the Socialist Party enjoyed the support of public opinion. The party in power was forced to acknowledge the strength of the Socialist Party. It was in this context of transition that the charges were levelled against Mr. Nano.

2. Implication of Mr. Nano:

In January 1993, a Parliamentary Ad Hoc Committee was set up to investigate matters concerning aid and credit received from abroad. At the same time, the State Control Service (SCS) - a specialized audit body elected by Parliament - was asked to prepare a report on the question. The Chairman of this body, Mr. Cela, reportedly did not consult the Parliamentary Ad Hoc Committee even though some of its members asked him to do so, and submitted his report to Parliament in May 1993. Although the SCS had no brief to concentrate its investigations into the aid on a limited period, its report covers exclusively the period during which Mr. Nano held the post of Prime Minister and puts forward several charges against Mr. Nano dating back to the time when he was Prime Minister. Mr. Cela's report allegedly replaced the work of the Parliamentary Ad Hoc Committee, which met only three times in four months and was apparently not provided with the relevant documents pertaining to the aid in question. Therefore, according to

the source, the official report of the People's Assembly on the matter merely reproduced the unsubstantiated charges contained in the SCS's report.

Question of access to the SCS's report and documents:

The Socialist parliamentary group is said to have officially required that the SCC's report and the relevant documents be filed with the office of the President of the People's Assembly, to enable the MPs and other authorized persons to familiarize themselves with the practice of Italian aid and with the legal conformity of the allegation against Mr. Nano. This legal requirement has reportedly not been fulfilled.

According to a document sent to the Prime Minister (Nr. 2208, dated 3.5.1993) by the President of the People's Assembly, Deputies Bashkim Caka and Leontiev Cuçi of the Socialist Party, members of the Parliamentary Ad Hoc Committee, were authorized to examine the minutes of the meetings of the Government and the Presidency of the Parliament.

3. Lifting of parliamentary immunity:

As a result of the SCS's report, which was submitted to the General Prosecutor, penal investigations were instituted against Mr. Nano on 6 may 1993; and on 26 July 1993 the General Prosecutor submitted to the People's Assembly a request for the lifting of his immunity. On 27 July 1993 the Committee on Parliamentary Status and Mandates met to examine this question. According to the source, the Committee acted unlawfully because it met contrary to the decision of its Chairman, upon the order of the President of the people's Assembly, within 24 hours of receipt of the request of the General Prosecutor. It reportedly recommended that parliament vote in favour of lifting Mr. Nano's immunity. That very day, all of the 102 MPs in attendance in Parliament - representatives of the Democratic Party, the Social Democrat Party, the Human Rights Party and the republican Party, together with six independent MPs - reportedly voted to that effect while the MPs from the Socialist Party were absent from Parliament. The decisi

on is said to have been adopted without debate. According to the source, Mr. Nano was heard by neither the Committee nor the people's Assembly.

In his communication of 29 October 1993, the President of the People's Assembly and of the Albanian Group stressed that parliamentary immunity had been lifted in conformity with the normal procedures followed in similar cases. It had been decided by a unanimous vote of all parties, with the exception of the MPs of the Socialist Party, who had been invited to attend but who had been boycotting Parliament for the past month and a half. The President stressed that the Committee on Parliamentary Status and Mandates had not been under pressure from him, and that he had convened the Committee's meeting on the basis of the Standing Orders and at the request of the overwhelming majority of members.

Mr. Nano's right to speak in Parliament

According to the source, Parliament first refused to let Mr. Nano speak. When, after two weeks, he was finally authorized to take the floor, the President allegedly only allowed him two minutes to provide explanations, which the source felt was obviously insufficient time, given the numerous allegations raised against him by the SCS.

The President of Parliament and of he Group stated that Mr. Nano had been given the floor several times but had refused to speak from his seat. Exceptionally Mr. Nano had then been allowed to speak from the rostrum of Parliament without any time limit. On 29 June 1994, the Speaker of Parliament transmitted an English transcript of the statement Mr. Nano made regarding the accusations held against him by the SCS, during the first session of Parliament, on 4 May 1993, at 5.30 p.m.. On the occasion of the 91st Inter-Parliamentary Conference (March 1994) the representatives of the parliamentary authorities also affirmed that a radio debate between Mr. Nano and the head of the SCS had been broadcast and that weeks, even months, before the case had been discussed in Parliament, it had been extensively aired in the media.

4. Mr. Nano's arrest and conditions of detention:a) Justification of Mr. Nano's arrest:

Three days after Parliament had authorized the lifting of Mr. Nano's parliamentary immunity, i.e. 30 July 1993, a Prosecutor appointed the previous day issued an arrest warrant against Mr. Nano which was immediately executed. The Source noted that other Prosecutors in office for some time had refused do sign that warrant and that one of them had resigned. Mr. Nano was arrested the day the Socialist Party was to meet to discuss his case and when Mr. Nano was to make a speech. Parliament was not asked to authorize the arrest.

The source stressed that, according to Article 75 of the Code Penal Procedure, a person can be detained if there is ample proof that he or she has indeed committed the offence of which he or she is accused. The source argued that the decision to arrest Mr. Nano was not grounded because there was not sufficient time for the investigating magistrate and the prosecutor - appointed the evening before - to examine all the material before them and determine whether there was enough evidence against Mr. Nano. Besides, none of the conditions mentioned in Article 49 of the Code of Penal Procedure applied to Mr. Nano and therefore the arrest was illegal. Not only did the charges in this case (falsification of documents and abuse of power involving foreign aid) not qualify as offences of "pronounced social danger" but the accused himself, a parliamentarian, leader of the main opposition party, never convicted or warned, could hardly be regarded as someone representing a "pronounced social threat".

Finally, the source mentioned that the investigators directly involved in the penal case initiated on 6 May 1993 on the basis of the denunciation of the SCS had taken a position against the allegations and had not signed the request for the detention of Mr. Nano as a suspect.

According to the President of Parliament, Mr. Nano's arrest has been made in complete conformity with Article 49 of the Code of Penal Procedure, item 4 of which states: "When the investigators deem that an offence of which a defendant it accused is socially dangerous, they can decide to arrest the suspect". In this case, both the investigator and the prosecutor deemed that the appropriated nine million dollars made the penal offence of which Mr. Nano is accused of, as well as Mr. Nano, himself, so much of a social danger that the measure of arrest was justified.

b) Decision of the court confirming detention as a security measure:

The Socialist party petitioned the Constitutional Court to rule that the arrest violated Article 22 of the Constitution, which stipulates that "a deputy cannot be controlled, detained, arrested or penally prosecuted without the consent of the People's Assembly". However, the Court rejected this petition on the grounds that the "act of arrest (by the competent body) is in conformity with the content of the decision of the People's Assembly to lift Deputy Fatos Nano's parliamentary immunity and to bring a criminal action againsthim".

c) Mr. Nano's conditions of detention:

In a letter day 24 August 1994, Mr. Nano's wife states that her husband had been living for one year in complete isolation, in cell N. 47 of Tirana Prison. The cell measured 4x2 m, was equipped only with a mattress laid on the floor and two blankets. He was not allowed any newspapers and had no access to other media. Once, when the prison guards found e newspapers in his cell, Mr. Nano was prohibited from getting food and seeing his family for two weeks. She also pointed to the fact that Mr. Nano's hair had been cut immediately after his arrest. In spite of these circumstances and thanks to efforts to maintain contact with the outside world unlawfully, Mr. Nano was able to run the party and to communicate even with his electorate. He has now been transferred to a high security prison located close to Tepelena, in the south far from Tirana.

At the hearing held on the occasion of the Copenhagen InterParliamentary Meetings, the source indicated that Tepelena prison is the only existing high security prison in Albania; it said that it currently houses 12 prisoners of whom five are former political leaders and six dangerous criminals. It stated further that Mr. Nano is kept in a cell which is slightly larger than the one in Tirana, that he can meet family members once a week: However, he may not receive visits from colleagues and his lawyers.

According to a document transmitted by the Chairman of the People's Assembly on 9 September 1994, the conditions in Tepelena prison where Fatos Nano is currently serving his sentence are good. He lives in a 5x3x2,8 m room with a window, electric light, a TV set, running water, a bed with iron springs, a mattress, four blankets, two sheets and a pillow. He is taken out in the year for two hours (?) times per 24 hours. He is said to receive the main newspapers he asks for and is allowed to meet his family, four times a month and spend one night with them. There is a doctor in charge of the prison, an ambulance is permanently available and Mr. Nano's health is good.

5. Judicial proceedings:

(a)Preliminary investigation:

(i) Objection to the investigator:

The Minister of Public Order, Mr. Musaraj, appointed as investigator Mr. Fatos Dervishi, allegedly a blood relation of Mr. Musaraj and said by Mr. Nano's lawyer, Mr. Sanxhaku, to be a personal and political opponent of his client. Moreover Mr. Dervishi did not fulfil his duty as investigator. He reportedly did not question Mr. Nano for the first time until 40 days after his arrest and his questions dealt only with Mr. Nano's educational and employment background. Bearing also in mind that Mr. Dervishi took the decision to arrest Mr. Nano after having been in office only for 24 hours, Mr. Nano's lawyer requested his removal from the investigation team. This request was rejected on 14 September bythe Tirana District Prosecutor. The source claims that this decision violates the Code of Penal Procedure.

(ii)Time frame:

The investigations were carried out in two stages, the first lasting from 30 June to 9 October 1993, and the second from 9 October 1993 to 14 February 1994.

During the two months following his arrest, neither Mr. Nano nor his lawyer was reportedly informed that any judical investigation concerning him was under way. Rather, it would seem that this investigation was conducted two months later, over a period of eight days. In the course of 10 days, the Prosecutor reportedly changed the charges three times: (1) misappropriation of nearly 8 million dollars; (2) corruption; (3) falsification of documents and abuse of power.

According to the source's allegations, the time frame for the conducting of investigations, namely two months under Article 61 of the Code of Penal Procedure (CPP), was not respected, and without any reasonable excuse.

The President of Parliament admitted that the first phase of the investigation had exceeded two months but stated that on the basis of Article 61, it. 3 and 4 CPP investigations can be extended if the investigator cannot complete his work within the usual deadlines.

Upon conclusion of the investigations on 9 October 1993 the case was brought before the Court for a pre-hearing which, on 26 October 1993, decided to refer the case back to the investigation

office, setting some requirements for the conducting of thorough and impartial investigations, namely reinterrogation of several witnesses, even witnesses in Italy. According to the source this meant that the conclusions of the investigations were not supported by sufficient evidence.

The President of the Group confirmed this information in his communication of 11 January 1994. He stated in particular that the Court had felt that the extent of the harm caused by Mr. Nano and the others had not been clearly determined.

This second phase of investigations was concluded on 14 February 1994.

(iii) Access to the file:

It is alleged that neither Mr. Nano nor his lawyer was given access to the material in the investigation file, which contravenes Article 76 of the CPP. Mr. Nano's lawyer states that on 6 August he requested the necessary information on the charges and the procedural acts in order to prepare the defence. He repeated this request on 27 September. On 1 October he was told by the General Prosecutor that "Mr. Nano and his lawyer would be introduced to the investigation file upon conclusion of the investigations."

On 9 October the Prosecutor decided to close the file without making Mr. Nano or his lawyer acquainted with the investigation material and without enabling him to present his own requestsconcerning additional investigations, thus violating Articles 76 and 102 of the CPP.

The same allegedly happened when the second phase of investigations was concluded on 14 February 1994. Mr. Nano and his lawyer reportedly had the investigation file, consisting of some 3000 pages, at their disposal for only three hours. Their request to be granted two weeks to study it was rejected. On 24 February 1994, the defence lawyers requested the Court to refer the case back to the Prosecutor's office for completion of the investigation; this request was rejected.

At the hearing held on the occasion of the 91st InterParliamentary Conference (March 1994), the head of the Albanian delegation submitted a document prepared by the Tirana District Court. According to that document, the case was brought before the Tirana District Law Court on 17 February 1994; the Court appointed a judge to examine the case; by virtue of Article 131 of the CPP, the Court has to give its judgment on the case no later than month from the day the case is presented to the Court by the judge. The Court had formally notified the lawyers of the accused that they should report to it on 21 February in order to familiarize themselves with the file. The lawyers did not appear, however, declaring that they would not report to the Court in view of the unlawful nature of the whole investigation procedure. On 23 February the judge decided to refer the case to the Court, setting 5 March as the date of the trial. On 24 February the defence lawyers handed over a submission to the Court requesting that the cas

e be referred again to the Prosecutor's Office of Tirana District for completion of the investigation. According to Article 141 of the CPP, however, any submission presented by any party after the case has been referred to the Court can only be submitted at the trial. Mr. Nano therefore had been kept informed of the charges brought against him and had given the opportunity to acquaint himself with the investigation files. Mr. Nano had not availed himself of that right.

In its communication received on 22 June 1994, the source reaffirms that Mr. Nano was not given the opportunity to study the file properly and states that the day the investigation was closed (15 February 1994). Mr. Nano and his lawyers were able to examine only 50 pages of the whole file. The source admits that the defence lawyers were notified on 21 February 1994 that they should report to the Court in order to familiarize themselves with the investigation material. Since the Court had a legal obligation to notify the defendant himself that the file was available for study, but failed to do so, the defence lawyers chose not to report to the Court. Furthermore, it states that it was the legal duty of the Prosecution and not the Court to apprise the defendant of the file because only at that level could the defendant request further investigation action in accordance with his right. Regarding the demand o the defence lawyers to refer the case back to the Prosecution, the source points out that this request w

as in conformity with Articles 61 and 106 of the CPP, dealing with the right of the defence to address the Court after the case has been filed with it, whereas Article 131 of the CPP sets the deadlines of trials. In this connection, the source also points to the fact thatthe trial started only 15 days after this case had been filed with the Court, which is an extremely tight schedule.

Regarding the fact that the defence lawyers of Mr. Nano's codefendants (Sokrat Plaka and Robert Gjini) availed themselves of their right to examine the relevant files when notified by the Court, the source indicates that did not exceed 50 pages each and that in both complaints about manipulation of the material were submitted.

At the hearing held on 11 July 1994, the source stated that the defence lawyer could visit Mr. Nano for half an hour per day, that is to say 10 hours in a month; that he was not allowed to take investigation material to the prison and that he could examine this material only at Court.

(iv) Appointment of experts:

On several occasion Mr. Nano's lawyer reportedly requested the Prosecutor to appoint experts in order to clarify the case from the financial angle. On 12 January 1994 the Prosecutor announced the performance of an audit. Mr. Nano's lawyer claims that, contrary to the provisions of Article 82 of the CPP, none of the experts proposed by Mr. Nano and his lawyer were admitted.

(v) Notification of the accusation:

Mr. Nano was served with the writ of indictment on 9 October 1993. He was reportedly not informed in detail of the accusation but merely notified that he was charged under Articles 106 and 110 of the Penal Code, without any clarification as to the alleged abuse or falsification.

On 14 February 1994 Mr. Nano received notification of the change of the accusation. The members of the investigation team allegedly did not explain the new change, which the source considered to be most unclear and contradictory: on the one hand, Mr. Nano was accused of the crime of "appropriation of State assets alone"; on the other, of "assisting the President of Levante & CO., Mr. Perniola" in the same crime. However, the Albanian authorities had not taken any legal steps against Mr. Perniola. Furthermore the accusation did not make clear what was to be understood by "appropriation ": appropriation of money or appropriation of the goods delivered to Albania?

(vi) Investigations pending in Italy:

The source indicates that according to several public statements made by the Italian Assistant Prosecutor, Evelina Carnale, "the Italian justice has no evidence of the involvement of Mr. Nano in the aid affair".

Mr. Andreotti, President of the Italian Inter-Parliamentary Group, reports in his letter of 2 February 1994 that investigations into Mr. Nano's role concerning the handling of the Italian aid is under way in Italy. He has asked the competent authorities to forward the respective information to the IPU Committee on the Human Rights of Parliamentarians.

b) Trial of first instance:

The trial against Mr. Nano took place from 5 March to 3 April 1994. On 3 April 1994 the Court declared Mr. Nano guilty for having "wittingly performed actions contrary to the regular performance of his duties, or wittingly not performed action he was obliged to while being in the post of the Chairmen of the Albanian Government during the period from 22 February until 4 June 1991 and, as a result of the abuse of office on his part, having embezzled in the favour of third persons - in the concrete case in the favour of the President of the Italian company which delivered aid in Albania, Giuseppe Perniola - a sum amounting to 72,5 million Albanian Leks (7,2 million U$) without profit, however, to himself".

Mr. Nano was sentence to 12 years' imprisonment and repayment of the embezzled sum amounting to 72.573.000 Leks (7,2 million U$).

The Court stated the following:

(i) Failure to inform the Prime Minister of the choice of "Levante & Co."

While Deputy Prime Minister, Mr. Nano failed to inform the Prime Minister of the time, Mr. Adil Carcani, about the content of a radiogram sent on 14 February 1991 by the then President of Republic, Mr. Ramiz Alia, to the Albanian Ambassador in Rome ordering him to obtain from the Italian authorities the confirmation of the granting of the Italian emergency aid and their approval for the Italian - Yugoslav firm "Levante & Co." to deliver the aid (page 4 of the English translation of the judgment).

Although warned by his assistants about the firm "Levante & Co.", Mr. Nano insisted on this company, under the directorship of Giuseppe Perniola, to deliver the aid. He did so because of his personal relationship with the latter.

(ii) Failure to "Institutionalize" the aid

Mr. Nano, even when appointed Prime Minister failed to inform the Council of Ministers of the questions pertaining to the aid. He made no effort institutionalize the aid in accordance with his statutory obligation. In particular, he failed to reach a bilateral agreement with the Italian side on the aid (page 4ff) and "prevented the Italian government from the possibility to organize e tender" (page 6ff and page 11). He. wilfully eliminated the specialized organs of the Ministry of Foreign Trade". He thus enabled "Levante & Co." and its director Giuseppe Perniola "to make easy profit from the sum of 23 billion liras paid to it by the Italian State for the emergency aid to Albania" (page 8).

It is true that the Council of Ministers, on 12 March 1991, adopted a decision "On the management and distribution of aid" whereby the Ministry of Home Trade and a Civic Commission were appointed to manage and distribute the aid. However, no legal rules pertaining to the reception and distribution of the aid were laid down (page 9).

(iii) Failure to act regarding shortcomings of the aid

Mr. Nano was informed of the high prices of the goods delivered and several other shortcomings but took no action (page 8). Acting upon the wish of Mr. Perniola, he changed the composition of the aid replacing emergency goods with less urgent items such as jam, canned fish and homogenized baby food.

(iv) Falsification of documents

Mr. Nano, in his capacity as Prime Minister, "signed several decisions on behalf of the Council of Ministers without this organ having given its authorization". This applies to decisions N. 121 on the establishment of the joint enterprise "Iliria Turistika" and N. 120 regarding rents, taxes and tariffs applied to the company "Iliria Holding" although this decision was discussed within the "Chairmanship of the Council of Ministers"(page 14).

(v) legal considerations regarding the crime of appropriation of State assets

The court considers that the Italian emergency aid, totalling 23 billion liras, became the property of the Albanian Stated with the official Italian decree granting the first part of aid on 13 March 1991 (N. 8/STR). It concludes that Mr. Nano appropriated State assets through his unlawful acting or failure to act which allowed over-pricing of the aid goods and transportation costs, quality control and non-delivery of medicaments.

(vi) Continuous nature of the crime of embezzlement

Mr. Nano is held responsible for the deficiencies and flaws in the delivery of the aid even after his resignation as Prime Minister. In this respect the Court states the following: "... the penal offence in question, seen from its objective aspect, has the nature of a continuing crime committed by the defendant Fatos Nano through misuse of official powers".

The defence contended as follows:

Ad (i) Levante & Co. had been chosen in accordance with negotiations and an agreement concluded between the government of Mr. Carcani (predecessor of Mr. Nano) and the Italians, that is to say prior to Mr. Nano's involvement in the handing of the aid. In addition, there is proof that Mr. Carcani was informed about the emergency aid and the choice of "Levante & Co". Furthermore, "Levante & Co." continued to deliver the Italian emergency aid even under the succeeding governments of Mr. Ylli Bufi, Mr. Vilson Ahmeti and Mr. Aleksander Meksi, although these governments were informed of the alleged shortcomings in the delivery of the aid.

The defence felt that no normal logic would admit that somebody, without himself benefiting at all, would "give to an unknown foreigner the chance to benefit to the extent of 9,4billion liras".

Ad (ii) The Italian government entrusted the Italian Ministry of Foreign Affairs with questions pertaining to the grand, which was of a political nature, and therefore the competent Albanian counterpart was the Ministry of Foreign Affairs. Furthermore, the Government of Mr. Nano issued an ad hoc decision on 12 March 1991 concerning "the organization and distribution of aid granted by Italy to Albania". It prescribed the procedure for the distribution of the aid and entrusted the Ministry of Domestic Trade, the Ministry of Public Health and the State Control Service with execution of the decisin. In addition, a Civic Commission composed of representatives of the main political parties at that time was set up to monitor distribution of the aid.

Italian law does prescribe competitive bidding in cases of emergency aid.

Finally, as Italian witnesses testified, the aid was given as a grant (and not a credit), so that no contract was concluded between the parties concerned. The Italian Foreign Ministry concluded contracts only with the company delivering the aid.

Ad (iii) Mr. Nano informed the Italian side about the Albanian concerns with respect to the prices. According to Italian law 49/87 governing the emergency aid, the procedure for calculating and approving prices as well as other costs falls entirely within Italian responsibility. This was confirm by several Italian witnesses. Documentation proving the correct pricing of the goods and mentioned by one of the witnesses was not taken into consideration by the Court. Furthermore, the list enumerating the goods needed was submitted to the Italian side on 19 February 1991 (before Mr. Nano became Prime Minister) and it contained the incriminated items.

Ad (iv) There is sufficient evidence that the incriminated decision were discussed within the Chairmanship of the Council of Ministers, in the presence of some Ministers. The question of the competence of this body to take the relevant decisions had been discussed, and it had been found competent under Article 88 of the Constitution in force at the time.

Ad (v) The Italian aid which amounted to 20 billion liras and not 23 billion as claimed in the judgment, was a grant and therefore, according to Article 304 of the Albanian Civil Code, became the property of the Albanian State only upon actual delivery of the goods to the Albanian authorities. Even if the prices, tariffs and other expenditures had been higher than the usual market prices or prices indicated in "manuals", this would not constitute the crime of "appropriation of State assets", particularly when dealing with a State based on a market economy. Furthermore, documents, inter alia the contracts between the Italian Foreign Ministry and "Levante & Co." and the invoices in respect of the goods reaching Albania prove that the entire aid was delivered between 19 March 1991 and 5 February 1993. It is only contract N. 8688 dated 23 July 1992 which has not been performed infull since aid amounting to 20.343 billion liras had already been delivered whereas the total amount of aid had been fixed at 20 billio

n liras.

Ad (vi) Mr. Nano was Prime Minister from 22 February 1991 to 4 June 1991. During this period the Italian Ministry of Foreign Affairs concluded three contracts with the delivering firm, amounting to a total value of 8.083.618.961 liras. Five other contracts were concluded between 20 June 1991 and 25 October 1991, the last one on 23 July 1992. This means that only the first part of the aid was delivered during the term of Mr. Nano while the second part was delivered during the term of the succeeding governments which, although aware of the alleged shortcomings of the delivery process in March, took no step to rectify them.

Furthermore, the defence affirms that the trial was market by numerous irregularities:

(i) Contempt of court the President of the Tribunal, Mr. A. Bendo:

Mr. Nano requested the removal of Mr. Bendo from the presidency of the tribunal for contempt of court. The decision to reject this request was reportedly taken in violation of Article 114 of the CPP. Contrary to this article stipulating that two members the jury have to withdraw in order to take such a decision, the whole jury, including Mr. Bendo himself, withdrew.

(ii) Irregular merging of cases:

Mr. Nano's case was merged with those of Mr. Plaka, Mr. Gjini and Mr. Hallko, who were accused of offenses which allegedly have no connection whatsoever with the charges held against Mr. Nano. The defendants and their lawyers requested the separation of their cases, which was refused by the Court.

(iii) Partiality with regard evidence:

Important documents were reportedly withheld, such as documents proving that there were no irregularities regarding the delivery of the Italian aid and that there were no speculative price differences. The Court used improper evidence such as the weekly price bulletin of Milan for the period 14 January - 21 January 1991, which does not relate to the period of the aid. Other documents proved incomplete (over 250 pages, chiefly of the experts statement on the pricing of goods and services in connection with the delivery of the aid, carried out for the Italian Prosecutor were missing) and 500 pages were not translated. In addition, the Court, in violation of the prevailing law, administered the written documents put forward by the defendant without reading or debating them. Fourteen files were dealt with in only four sessions.

No witnesses on behalf of Mr. Nano were admitted. In addition, none of the 51 witnesses testified to a misappropriation of State funds or non- respect of rules regarding Mr. Nano's powers as PrimeMinister. In its judgment, the Court gives a distorted version of their statements.

(iv) Inadequacy of time granted the preparation of defence:

The accused and his defendants were reportedly denied in an arbitrary way the necessary time for the preparation of the final defence statement. Mr. Nano's codefendants were given 10 days to prepare this statement, whereas Mr. Nano and his defence lawyers who, in view of the voluminous material, had asked to be given three weeks, had to prepare their statement within three days out of which the defence lawyers were only allowed to meet Mr. Nano for a total of two hours in jail.

c) Appeal procedure:

The Court of Appeal confirmed the judgment delivered by the Tirana District Court, on 26 May 1994 without taking into consideration the numerous irregularities pointed out to it by the defendant and his lawyer and merely repeated the arguments of the Tirana District Court. However, it modified the sum to be repaid by Mr. Nano and assessed it at 72.250.000 Leks. With regard to the argument of the defence that Mr. Nano cannot be held accountable for embezzlement of the aid which occurred after he resigned from the post of Prime Minister, the Court of Appeal stated that Mr. Nano's crime "is of a continuous nature. The defendant has favoured larceny in both aid tranches, despite of the time of the aid delivery."

On 28 July 1994, the Court of Cassation, the last instance of the Albanian judiciary system, upheld the decision of the Court of Appeal, reportedly without any modification. Consequently, the judgment of the first instance handed down on Mr. Nano has become final.

At the hearing held in Copenhagen, the source indicated that the Cassation Court took its decision in a single session and that only one question was put to the defence, namely, how it know which material had been deleted from the file. The source explained further that the only possibility for a review of Mr. Nano's case theoretically still existing, was a "request for protection of legitimacy" addressed to either the General Prosecutor or the President of the Cassation Court. Both could not be expected to rule in favour of Mr. Nano.

D. DOMESTIC AND INTERNATIONAL LEGAL CONTEXT

1. Domestic law

Parliamentary immunity is laid down in Article 22 of the Constitution of the Republic of Albania.

The principle of presumption of innocence is a right recognized in Article 7, Chapter VII; of the Constitution. Article 8 of the same Chapter enumerates the guarantees enjoyed by the accused with regard to criminal proceedings. Among them is theright to be informed immediately and in detail of the nature of the accusations and be given sufficient time to prepare the defence including the right to present witnesses, experts and other persons who may be able to testify. Finally, the right to a fair trial is recognized in Article 40 of this Chapter.

Articles 102 and 76 of the Code of Penal Procedure specify the right to a fair trial.

2. International law

As a party to the International Covenant on Civil and Political Right and the European Convention on Human Rights and Fundamental Freedoms the Republic of Albania is bound to respect the rights enshrined therein.

E. PREVIOUS TREATMENT

1. The Committee was seized of the case Mr. Fatos Nano at its 64th session (January 1994). Recalling the principle of parliamentary immunity, it noted that the lifting of a parliamentarian's immunity is therefore a serious measure that must be taken in due legal form by the competent body under law which must ensure that the parliamentarian in question enjoyed all the guarantees needed for his defence and that he would be given a fair trial. It also noted that contradictions existed between the allegations of the source and the information from the authorities concerning the lifting of Mr. Nano's parliamentary immunity, and had misgivings about the conditions in which this was dealt with and decided. The Committee further noted that Mr. Nano had been imprisoned since 30 july 1993; that the gravity of the crime of which he was accused and the fact that he was seen as "a danger to society" were used by the judicial authorities to justify his imprisonment. It pointed out that the indictment accused Mr. Nano of

breaking Albanian law by abusing power and falsifying documents, but queried references in the indictment to the provision of Italian law allegedly infringed by his action. Having closely examined the indictment, the Committee wished to know what the damage consisted of and how the amount of the loss was calculated. It further wished to know precisely what concrete facts were used to support the accusation of abuse of power and falsification of documents made against, Mr. Nano and the evidence in support of those accusations. The Committee had questions, in the light of material on file, about the exact consequences of the administrative acts performed by Mr. Nano, and more especially about the causal link between those acts and the alleged losses for which he was held to be criminally responsible. The Committee did not see how, in the circumstances, the notion of "danger to society" could be invoked. Finally, the Committee expressed doubts, as to the sufficient objective grounds for keeping Mr. Nano in prev

entive detention. Furthermore, the Committee wished to know whether the terms for the provision of the aid were called into question by the Italian authorities and whether they were the subject of an inquiry.

2. At its 65th session (March 1994), the Committee noted that the trial in first instance was due to end in a few days but that new evidence could be provided during the appeal procedure. It remained concerned at the lifting of the parliamentary immunity of Mr. Nano and hoped to obtain from the Albanian Group the documents showing that he had been given enough time to explain himself before Parliament. The Committee further noted that there were contradictions between the allegations of the source and the information from the authorities concerning the opportunity Mr. Nano and his lawyer had been given to study the investigation file, and wished to receive clarifications on that point from the source in the light of the information provided by the authorities at the close of the Committee's sitting. It had misgivings about the reason for the sudden change in the charge and about the exact nature of the "appropriation of State assets" of which Mr. Nano was accused, and wished to obtain a copy of the new charg

e. The Committee reiterated its wish to ascertain precisely what concrete facts had been adduced to support the charge of appropriation of State assets and falsification of documents brought against Mr. Nano. The Committee remained concerned about the exact consequences of the administrative acts performed by Mr. Nano, and more especially about the causal link between those acts and the alleged appropriation for which he was held criminally responsible and desired to ascertain the outcome of Mr. Nano's objection to the President of the Tribunal. The Committee finally requested the Secretary General to seek additional information from the source regarding Mr. Nano's opportunity to examine the investigation file and prepare his defence.

3. At its 66th session (July 1994), the Committee pointed to a number of contradictions between the allegations of the source and the statement of the authorities and to some worrying facts mainly related to the limitation of the investigations into the Italian aid to the period of Mr. Nano's term of office as Prime Minister. The Committee further wished to ascertain the conditions of Mr. Nano's detention, his state of health and the prospects for his release or a review of his trial.

F. DECISION OF THE COMMITTEE

The Committee

Decides to recommend to the Inter - Parliamentary Council that it adopt the following resolution:

The Inter - Parliamentary Council

Having before it the case of Mr. Fatos Nano, a member of the Parliament of Albania, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians, in accordance with the "Procedure for the examination and treatment by the Inter - Parliamentary Union of communications concerning violations of human rights of parliamentarians".

Taking note of report of the Committee on the Human Rights of Parliamentarians (CL/155/11(a)-R.1), which contains a detailed outline of the case,

Also taking note of the additional information supplied by the source and by the Albanian National Group at a hearing held on the occasion of the 92nd Inter-Parliamentary Conference in Copenhagen (September 1994).

Considering that Mr. Fatos Nano, former Prime Minister of Albania and President of the Socialist Party, was arrested on 30 July 1993 following the lifting of his immunity on 27 July 1993; that he was charged with abuse of power and falsification of official documents in connection with emergency aid delivered by Italy to Albania in 1991.

Also considering that, according to the source, Mr. Nano was served with the indictment on 9 October 1993; that on 14 February 1994 the charge was altered from "abuse of power and falsification of documents" to "appropriation of State assets in large amounts and falsification of documents"; that according to the source the new charge, which is more serious than the previous one, was not explained to Mr. Nano and his lawyer, and that no new investigation findings or material were adduced to substantiate it.

Considering further that according to the source, Mr. Nano and his lawyer have at no stage of the investigation procedure been given the opportunity to acquaint themselves with the investigation material, despite their repeated requests to that effect; that following the closing of the second phase of investigation on 14 February 1994 he and his lawyer requested on 15 February to be authorized to study the investigation file of some 3000 pages for two weeks but were only given three hours to do so; that the maximum time-lag laid down for this purpose in Code of Penal Procedure (CPP) is one month; that they did not therefore have an opportunity to present requests concerning additional investigations; that Mr. Nano and his lawyer had requested the appointment of experts and that those proposed by them were rejected; that all this constitutes a violation of Articles 76 and 102 of the CPP; and that Mr. Nano has refused to co-operate with the Court since he has allegedly not been given an opportunity to familiar

ize himself with the charges against him and prepare his defence; that the defence lawyer could visit Mr. Nano for half an hour per day, that is to say 10 hours per month; that he was not allowed to take investigation material to the prison and that he could examine this material only at Court.

Considering, on the other hand, that the spokesman of the Tirana District Law Court stated that the procedure applied in the case was in conformity with the Code of Penal Procedure; that the said case was brought by the Prosecutor's Office before the Tirana District Law Court on 17 February 1994; that the Court appointed a judge to examine this case; that in conformity with Article 131 of the CPP, the Court shall conclude judging a criminal case not laterthan one month from the day it is presented to the court by the relevant judge; that the necessary action had been taken to examine and initiate the proceedings; that the court had formally notified the lawyers of the accused that they should report to it on 21 February in order to familiarize themselves with the file; that the lawyers of the accused declined to do so, on the grounds that the investigatory body had acted during the investigation; that on 23 February the judge of the case decided to refer the case to the court, setting 5 March for the opening

of the trial; that on 24 February the defence lawyer handed over a submission to the Court requesting that the case be referred again to the Prosecutor's Office of Tirana District to complete the investigation on the basis of allegations and objections submitted by the accused Fatos Nano and himself; that according to Article 141 of the Code of Penal Procedure, the said defence lawyer and the accused have the right to present their allegations and abjection only during the trial since this judge, had already taken the decision to present the case to the Court the day before; that in accordance with the CPP any request submitted by one of the parties in a court process, be it the accused or his defence, or the Prosecutor, following the decision on referring the case to the Court, can only be lodged and examined during the trial; that Mr. Nano has therefore been kept informed of the charges held against him and that he was given an opportunity at any time to familiarize himself with the investigation files, b

ut that he himself declined to do so.

Noting that the trial started on 5 March 1994; that on 3 April 1994 Mr. Nano was found guilty, by omission or commission, of having embezzled State funds totalling 72,5 million Albanian Leks (US $ 7,2 million) in favour of the President of the Italian company which delivered the Italian aid to Albania and for falsification of documents; that on 26 May 1994 the Court of Appeal confirmed this judgment and that on 28 July 1994, the Court of Cassation, the third and last instance of the Albanian Judiciary system, upheld the decision of the two previous judicial instances.

Considering that the Tirana District Law Court found that Mr. Nano, while Deputy Prime Minister, had failed to inform the then Prime Minister, Mr. Carcani, of the choice of Levante & Co.; that when Prime Minister he failed to "institutionalize" the aid; that he failed to act regarding shortcomings of the aid, in particular high prices and that by such omission or commission he embezzled State funds in favour of the director of Levante & Co.

Considering also that, still according to the Court, in his capacity as Prime Minister he signed several decisions on behalf of the Council of Ministers without that body's permission, something which under Albanian criminal law constitutes falsification of documents.

Considering further that the Court qualifies the crime of embezzlement committed by Mr. Nano as being of a continuous nature, implying that Mr. Nano is held responsible for the deficiencies and flaws in the delivery of the aid even after his resignation asPrime Minister.

Considering that the defence pointed to the fact that Levante & Co. had been chosen prior to Mr. Nano's involvement in the handling of the aid; that an ad hoc decision was issued concerning the "organization and distribution of aid granted by Italy of Albania"; that Mr. Nano informed the Italian side of the Albanian concerns with regard to the prices; that, however, the aid was grant and that the procedure for calculating and approving prices as well as other costs fell entirely within Italian responsibility; that in no way was there any overpricing; that Mr. Nano did not take any decision on behalf of the Council of Ministers; that on the contrary the decision disputed had been discussed within the chairmanship of the Council of Ministers, in the presence of some Ministers.

Considering also that, according to the source, the trial was marred by numerous irregularities, in particular partiality with regard to evidence and improper administration of evidence.

Considering further that, according to the source, Mr. Nano has been transferred to the maximum security prison of Tepelena, the only such prison in Albania, housing currently 12 inmates, five of whom are former political leaders and six other dangerous criminals; that his cell is slightly larger than that of Tirana Prison; that Mr. Nano may receive family members once a week; that, however, he is not allowed to meet colleagues and his lawyers; that his state of health has deteriorated.

Considering that, according to the authorities, Mr. Nano is housed in a cell measuring 5x2x2,8 possessing a window and equipped with a television set; that Mr. Nano receives the main newspapers he asks for, that he is allowed to meet his family four times a month and is allowed to stay with them one night per month; that the hygiene of the prison is good and that Mr. Nano has not lodged any complaints.

1. Thanks the President of the National Assembly for his cooperation and the information he provided.

2. Also thanks the Albanian Group for the observations and the information they provided at the hearing held in Copenhagen.

3. Wishes to point to some worrying facts:

a) The authorities claim that damage caused to the Albanian State is calculated solely on the amount of aid supplied during the period when Mr. Nano was Prime Minister, whereas the source points out that if had been the case, the figure advanced for this damage represents some 80 % of the amount of aid supplied during that period, thus implying that only 20 % of this aid was delivered.

b) The investigations into the aid were confined to the period when Mr. Nano was Prime Minister, during his term of office onlypart of the aid granted was delivered, with the result that Mr. Nano is held responsible for acts he has not committed;

c) The authorities state that Mr. Nano was at liberty to examine his file, without however providing details as to the practical arrangements in this respect; the sources allege that the investigation file, comprising some 3000 pages, could only be consulted at the Court Clerk's Office by Mr. Nano's lawyer, who, in order to transmit this information to his client and receive instructions from him, was allowed only 30 minutes' visiting time per day with him for one month.

d) The statements made by the representative of the National Assembly at his hearing on 13 July 1994 and the judgment of the Tirana District Court show that many of the decisions for which Mr. Nano is held responsible were either taken by the President of the Republic or involved the responsibility of persons such as Mr. Carcani, who was Prime Minister before Mr. Nano, and that these persons have not been persecuted but merely cited as witnesses.

e) Mr. Nano was charged and tried, inter alia, for falsification of documents, for acts which would rather come under an abuse of power;

f) Mr. Nano has not been prosecuted for misappropriation of funds for his own benefit and the representative of the National Assembly was unable to explain Mr. Nano covered up the misappropriation of aid. The term corruptions has been constantly used by the Albanian National Group in respect of Mr. Nano although it was conceded that there was no evidence at all that he had in any way, either directly or indirectly, personally benefited from these transactions;

4. Fails to understand how the acts or omissions of Mr. Nano, referred to in the Tirana District Court judgment, can prove Mr. Nano's guilt, and expresses doubts as to the rational nature and soundness of aforesaid judgment.

5. Expresses serious concern at the allegation of partiality of the Court with respect to the administration of evidence, in particular the allegations that: important documents were withheld; the Court used improper evidence; documents were used as evidence while incomplete or not untranslated; and the judgment gives a distorted version of the statements made by the witness.

6. Recalls in this respect that Albania is a party to the International Covenant on Civil and Political Rights and to the European Convention on the Protection of Human Rights and Fundamental Freedoms, and that it is therefore bound to respect the right to a fair trial guaranteed therein (Article 14 and Article 6 respectively);

7. Wishes to ascertain the possibility for Mr. Nano to receive the visit of his colleagues and his lawyers and the prospects forMr. Nano's release.

8. Accepts the invitation extended by the President of the People's Assembly of Albania to the IPU to send an on-site mission to gather both from the competent authorities and from the convicted person and his lawyers detailed information on his case.

9 Requests the Secretary General to convey these considerations to the President of the People's Assembly and to seek his comments thereon.

10. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and to report to it at its next session (March 1995)