THIRD SECTION
CASE OF ISMAILAJ AND OTHERS v. ALBANIA
(Application no. 28873/22)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) • Lack of impartiality of the Supreme Court judge having previously examined the merits of closely related first-instance proceedings against two of the applicants • Similar underlying legal issues considered in each of the proceedings and, at the very least, related • Objectively justified doubts regarding possible preconceived view held by judge • No measures taken to enable the applicants to raise the question of impartiality in due time
Art 46 • Execution of judgment • Individual measures • Retrial or reopening of the proceedings, if requested, most appropriate way of ending violation and affording redress
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
8 July 2025
 
FINAL
 
08/10/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ismailaj and Others v. Albania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Peeter Roosma, President,
 Lətif Hüseynov,
 Darian Pavli,
 Diana Kovatcheva,
 Úna Ní Raifeartaigh,
 Mateja Đurović,
 Vasilka Sancin, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 28873/22) 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”) by Albanian nationals, Mr Kastriot Ismailaj and Ms Lutfije Ismailaj, and Adriatic Development Corporation Ltd SHPK (“the applicants”) on 1 June 2022;
the decision to give notice to the Albanian Government (“the Government”) of the complaint concerning the alleged impartiality of the tribunal and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 17 June 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged partiality of a Supreme Court judge in the proceedings for the confiscation of the applicants’ assets pursuant to a non-conviction-based confiscation regime provided under the so-called “Anti-mafia Act” (Law no. 10192 of 3 December 2009, as amended, “On preventing and combatting organised crime and trafficking through measures against assets”). THE FACTS
2. Mr Kastriot Ismailaj (the first applicant) is the son of Ms Lutfije Ismailaj (the second applicant) and sole shareholder and director of Adriatic Development Corporation Ltd SHPK (the third applicant), a company established under Albanian law. The applicants were represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome. 3. The Government were represented by their Agent, Mr O. Moçka, General State Advocate. 4. The facts of the case may be summarised as follows. The Circumstances of the case
5. In 2008 and 2012, the Tirana Prosecutor’s office launched two criminal investigations against the first applicant on suspicion that he had laundered the proceeds of criminal activities contrary to Article 287 of the Criminal Code (Laundering of the proceeds of crime). The investigations were discontinued in 2010 and 2012 for lack of evidence and elements disclosing a criminal offence, respectively. In 2014, a new money-laundering investigation (no. 6381/2014) was launched against the first applicant, to which the two prior investigations were also joined. This was followed by the initiation of two corresponding preventive proceedings for the confiscation of assets under the Anti-mafia Act, which relied on the findings of the 2014 criminal investigation. First set of proceedings for the confiscation of assets
6. On 27 April 2016, the Court of First Instance for Serious Crimes (“the First-Instance Court”) accepted an application by the special prosecution for the confiscation of a number of assets (bank accounts) belonging to the first and the third applicants on account of the commission by the first applicant of serious crimes, asserting that the three conditions required by section 24(1) of Law no. 10192 of 3 December 2009 (as amended) had been cumulatively met (see paragraph 19 below). 7. The three-judge bench of that court, which included judge K.K., found that there was a reasonable suspicion, supported by evidence, regarding the involvement of the first applicant in money-laundering activities covered by Article 287 of the Criminal Code, and that the criminal activity had been carried out as far back as 2006, from the time of the establishment of the third applicant and the transfer of the first sums of money to that company. That finding was predominantly based on the conclusions of the criminal investigations that had been launched between 2008 and 2014 against the first applicant. In particular, the court found that the third applicant was a sham company which had been created for the sole purpose of committing the offence of money-laundering. The financial transactions generated through this company, which had had no economic logic, were found to have originated from dubious financial sources that were used to cover allegedly unlawful criminal activities. The company had had no discernible commercial activity and zero profit, yet the financial transactions from their accounts were in the range of millions of euros with companies operating from a fiscal haven (Gibraltar). 8. Furthermore, the court found that the first and the third applicants had not discharged their burden of proof, as they had failed to prove that the contested assets had been acquired through lawful means. Lastly, the third condition provided for by law, pursuant to which the assets had to be in the full possession of the person subjected to the measure, was also found to have been met. 9. The decision of the Court of First Instance on the confiscation of the applicants’ assets was subsequently upheld on appeal by the Court of Appeal for Serious Crimes and the Supreme Court in 2016, and had, therefore, become final and enforceable. Second set of proceedings for the confiscation of assetsFirst-instance and appeal proceedings

10. On 16 June 2015 the Prosecutor’s Office for Serious Crimes brought a claim with the First-Instance Court, requesting, under the Anti-mafia Act, the confiscation of several additional bank accounts and a car belonging to the applicants. Following the delivery of an expert’s report on the applicants’ assets and income, on 17 March 2016, the First-Instance Court accepted the claim. 11. With reference to the criminal investigations (no. 6381/2014) that had been launched between 2008 and 2014 against the first applicant, the court found that there existed a reasonable suspicion, supported by evidence, that he had been involved in the criminal activities set out in Article 287 of the Criminal Code since 2006 – the time of the establishment of the third applicant and the transfer of the first sums of money to that company. In particular, the court noted that the third applicant was a sham company which had been created for the sole purpose of committing the offence of money‑laundering. All the financial transactions generated through that company, as well as by other companies created and administered by the first applicant, had no economic logic and were linked to suspicious sources; there was no discernible commercial activity, yet the financial transactions in their accounts were in the range of millions of euros with companies created in a fiscal haven (Gibraltar). 12. The court also found that the second and the third applicants were persons connected with the first applicant within the meaning of the Act and could, therefore, be considered subjects of the confiscation measure. Lastly, the court found that under the Act the burden of proof rested with the applicants and they had not proved that the funds in the bank accounts, which totalled approximately one million United States dollars, had been earned lawfully. The possession of such assets was considered not to correspond to the level of income, profits or lawful activities as declared by the applicants, nor had they been justified by them in circumstances where the profit from their lawful activity or activities amounted to zero. 13. On 24 May 2016 the First-Instance Court’s decision was upheld by the Court of Appeal for Serious Crimes. Its conclusions were based on the evidence gathered in the course of criminal investigation no. 6381/2014 (see paragraph 5 above) against the first applicant. The appeal court considered that such evidence was sufficient to prove both the reasonable suspicion that the first applicant had committed a criminal offence and the unlawful origin of the confiscated assets. Supreme Court proceedings
14. On 22 June 2016, the applicants lodged a cassation appeal with the Supreme Court against the decisions of the First-Instance Court and Court of Appeal for Serious Crimes, listing a number of complaints, which related in essence to the assessment of facts and evidence used by those courts in reaching their respective verdicts. The applicants alleged, inter alia, that the prosecution had failed to establish a reasonable suspicion of the applicants’ involvement in criminal activities, to identify the assets acquired from suspicious sources, and to prove the rational link between these two elements. 15. On 4 May 2021, the Supreme Court, sitting in camera as a criminal bench of three judges, which included judge K.K., dismissed the applicants’ cassation appeal as inadmissible. There is no indication in the file materials that the parties had been notified of the upcoming hearing and/or the composition of the bench. In declaring the appeal inadmissible, the Supreme Court noted that it did not meet any of the criteria for admitting such an appeal under Article 432 of the Code of Criminal Procedure. In particular, it stressed that it was not for the Supreme Court to re-examine evidence or points of fact and its jurisdiction was confined to legal arguments alone. The Supreme Court also added that it was satisfied that the legal conditions under the Anti‑mafia Act for the confiscation of the applicants’ properties were fulfilled. 16. The relevant parts of the judgment read as follows:
“30. The Criminal Bench maintains that none of the claims raised in the cassation appeal refer to any of the grounds for a cassation appeal provided for in Article 432 of the Code of Criminal Procedure. Although the Bench does not examine evidence, it considers that the lower courts have correctly assessed the conditions for the confiscation of the [applicants’] assets, as provided for by Law no. 10192, dated 3 December 2009 ... The Bench considers that all claims raised in the cassation appeal have also been raised in the Court of Appeal for Serious Crimes and have received a reasoned response from it... 32. The Criminal Bench considers that the complaints related to the misinterpretation of the evidence and the facts shall not be taken into consideration by it, since the assessment of evidence is a matter that falls outside the exclusively legal jurisdiction of the Supreme Court. However, the Bench considers that the decisions of the lower courts are exhaustively reasoned and create the conviction of the Bench that the confiscation of assets meets the conditions set out in Law no. 10192.”
Constitutional Court proceedings
17. The applicants lodged a constitutional complaint against the judgment of the Supreme Court. They alleged, inter alia, that their cassation appeal had not been adjudicated by an impartial tribunal on account of the earlier involvement of judge K.K. in related proceedings against the applicants (see paragraphs 6-9 above), which had concerned the same factual and legal issues underpinning the case on appeal. 18. On 2 December 2021, the Constitutional Court dismissed the applicants’ constitutional complaints, including the complaint regarding the alleged lack of impartiality of the Supreme Court on account of the participation in the proceedings of judge K.K., who in 2016 had sat as first‑instance court judge in a case against the first and the third applicants and had ordered the confiscation, under the Anti-mafia Act, of some bank accounts belonging to them. In this connection the Constitutional Court found that the assets (bank accounts) confiscated under those two separate proceedings were entirely different and concluded that there could be no objective doubts about K.K.’s impartiality. RELEVANT LEGAL FRAMEWORK
19. Law no. 10192 of 3 December 2009, (the “Anti-mafia Act”), as in force at the relevant time, sets out the conditions for the confiscation of assets allegedly acquired through unlawful means. The relevant part of that Law reads:
Section 3
Scope
“... 2. The provisions of this law shall also apply to the assets of:
(a) Close relatives ... of the persons indicated in paragraph 1 of this section [the primary suspects];
(b) Natural or legal persons, for whom there is sufficient evidence that their assets or activities are owned, partially or entirely, directly or indirectly, or have been used, facilitated, or in some way influenced the commission of illegal activities by the persons referred to in paragraph 1 of this section.”
Section 5
Relationship with criminal proceedings
“1. The procedure for the imposition and execution of preventive measures, according to this law, is independent from the status, level, or outcome of any criminal proceedings conducted against persons subject to this law. 2. The verifications, investigations, and adjudication, according to this law, shall follow the procedural rules of this law, as supplemented by rules specified in the Code of Civil Procedure.”
Section 24
Grant of the request for confiscation
“1. The court shall decide on the confiscation of assets when all the following conditions are met:
(a) there are reasonable doubts, based on evidence [indicie], regarding the person’s involvement in any of the criminal activities specified in section 3 of this law;
(b) it is not proven that the assets have a lawful origin, or the person does not justify the possession of assets or revenue that are manifestly disproportionate to their [previously] declared lawful revenue, profits, or activities ...; and
(c) it is proven that the assets are, directly or indirectly, in the partial or full possession of the person.”
20. Section 5, paragraph 2, of the Anti-mafia Act was subsequently amended by Law no. 70/2017, as follows:
“2. The verification, investigation and adjudication according to this law shall follow the procedural rules of this law, as complemented by rules stipulated in the Code of Criminal Procedure, as the case may be. Data [të dhënat] obtained from criminal proceedings [may be] used in the procedure provided for by this law.”
21. Article 472 of the Code of Civil Procedure, as in force at the time of the applicants’ lodging of their appeal with the Supreme Court, read as follows:
Article 472
Judgments subject to appeal [rekurs]
“Judgments of a court of appeal or a court of first instance may be appealed to the Supreme Court, in the cases provided for in this Code, [and] only on the following [grounds]:
(a) non-compliance with or incorrect application of the law;
(b) serious breaches of procedural norms ....
...”
22. The relevant provisions of the Code of Criminal Procedure (CCP), as in force at the time of the hearing of the applicant’s appeal by the Supreme Court, read as follows:
Article 15
Incompatibility due to participation in the proceedings
“1. A judge who has delivered or participated in the adoption of a judgment in an instance of the proceedings shall not exercise the functions of a judge in the other instances, nor take part in a retrial or revision after the quashing of the judgment. ...”
 
Article 17
Withdrawal
“1. A judge shall be obliged to withdraw from the adjudication of a specific case when:
... (c) [he or she] has provided advice or expressed an opinion on the subject matter of the proceedings; ... (ë) there exist other important reasons of partiality. 2. A statement of withdrawal shall be presented to the chairperson of the respective court, who shall approve or reject the withdrawal by reasoned decision.”
 
Article 18
Recusal of a judge
“1. Parties may request the recusal of a judge:
(a) in the cases provided for in articles 15 ... and 17 [of this Code];
b) when during the exercise of his/her functions and before the delivery of the judgment, he or she has expressed an opinion on the facts or circumstances subject to the proceeding.”
Article 432
Appeals against judgments of the Court of Appeal
“1. An appeal to the Supreme Court against judgments delivered by the Court of Appeal may be lodged for the following reasons:
(a) non-compliance with or incorrect application of substantive or procedural law, which is important for the uniform interpretation [njësimin] or development of judicial practice;
(b) non-compliance with or incorrect application of procedural law, having as a consequence the quashing [pavlefshmërinë] of the judgment, the absolute invalidity of acts or inadmissibility of evidence;
(c) the judgment subject to appeal is contrary to the practice of the Criminal Bench or Joint Benches of the Supreme Court. 2. When it deems it necessary, the court shall request written memoranda from the parties.”
Article 433
Non-admissibility of an appeal
“1. An appeal shall not be admitted if it is lodged for reasons different from the ones allowed by law and if the Supreme Court decides that the case must not be reviewed by it pursuant to the provisions of Article 432 § 1 of this Code. 2. A judicial panel of three judges shall decide on the admissibility of the appeal in a closed session.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicants complained that their right to an impartial tribunal had been violated on account of the participation of judge K.K. in the cassation proceedings against them. This was contrary to the guarantees of Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Admissibility
24. The Government submitted that the applicants’ complaint was a “fourth-instance” complaint and that it constituted an abuse of the right of individual application under Article 35 § 3 of the Convention. With regard to the second applicant, the Government submitted that she lacked victim status for the purposes of Article 34 of the Convention, as she had not been a party to the proceedings at first instance with the participation of judge K.K. 25. The applicants submitted that the Government’s objections lacked any merit and were misplaced. With regard to victim status, the applicants asserted that the fact that judge K.K. had already formed a view

Outcome for Article 6: violation