Same judge in related confiscation cases: ECtHR finds a breach of Article 6 ECHR

In its recent judgment in the case Ismailaj and Other v. Albania, published on 8 July 2025, the European Court of Human Rights found a violation of the applicants’ right to an impartial tribunal under Article 6 § 1 ECHR on account of the lack of impartiality of one of the Supreme Court judges, who had previously examined the merits of closely related first-instance proceedings against two of the applicants.

The case may be summarized as follows.

The application was filed by three applicants, two natural persons – namely, Mr. K.I., the first applicant, and Ms. L.I., the second applicant – and a legal person, i.e., ADC Corporation, the third applicant.

In 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 belonging to the first and third applicants under Law no. 10192/2009 (“Anti-mafia Act”).

Pursuant to the applicable version of Article 24(1) of Law no. 10192/2009, in order for such a request to be upheld, the Court was required to ascertain whether: a) there were reasonable doubts, based on indicia, that the person concerned had committed one of the offences referred to by Article 3 § 1 of Law no. 10 192/2009 (which included the offence under Article 287 of the Albanian Criminal Code, of which the first applicant had been accused in criminal proceedings initiated against him between 2008 and 2014); b) it was not proven that the assets had a lawful origin; c) the assets were owned, directly or indirectly, either by the person concerned or by his relatives or companies.

The three-judge bench of the First-Instance 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.

The decision of the First-Instance Court on the confiscation of the first and third applicants’ assets was subsequently upheld – first by the Court of Appeal for Serious Crimes and then by the Supreme Court – and became final and enforceable.

In parallel with the first application, the Prosecutor’s Office submitted a second request for confiscation to the First-Instance Court under Articles 21, 23 and 24 of Law no. 10192/2009, which prompted the institution of a second set of proceedings concerning different assets belonging to the first and third applicants, as well as assets held by the second applicant.

The application was upheld by the First-Instance Court, sitting in a different composition, which again found that the three conditions provided for by Article 24(1) of Law no. 10192/2009 were met. In particular, it held 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.

This finding as well was based on the conclusions of the criminal investigations that had been launched between 2008 and 2014 against the first applicant. The First-Instance Court’s decision was subsequently upheld by the Court of Appeal for Serious Crimes, which likewise relied on the evidence gathered in the course of the above-mentioned criminal investigation against the first applicant.

The applicants lodged a cassation appeal with the Supreme Court against the decision of the Court of Appeal for Serious Crimes. They argued, inter alia, that the prosecution had failed to establish a reasonable suspicion of their involvement in criminal activities, to identify the assets acquired from suspicious sources, and to prove the rational link between these two elements. The bench of the Supreme Court that adjudicated the cassation appeal was composed of three judges, including Judge K.K., who had previously ruled on the merits of the case at first instance in the initial set of confiscation proceedings.

The Supreme Court dismissed the applicants’ appeal as inadmissible. In declaring the appeal inadmissible, the Supreme Court specified that it was satisfied that the legal conditions under the Anti‑mafia Act for the confiscation of the applicants’ properties were fulfilled.

The applicants then lodged a constitutional complaint against the judgment of the Supreme Court, alleging 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, which concerned the same factual and legal issues underpinning the case on appeal. In 2021, the Constitutional Court dismissed the applicants’ constitutional complaints, finding that the assets confiscated under those two separate proceedings were entirely different and that there could be no objective doubts about Judge K.K.’s impartiality.

The applicants, represented by Saccucci and Partners, turned to the European Court of Human Rights, claiming a breach of their right to an impartial tribunal under Article 6 § 1 ECHR, on account of the participation of Judge K.K. in the bench of the Supreme Court that adjudicated their cassation appeal in the second set of confiscation proceedings.

The Court unanimously upheld the applicants’ claims.

First, the Court found that the underlying legal issues considered by the Supreme Court in the disputed proceedings were similar and, at the very least, related to those dealt with by the lower courts in the first set of proceedings. Indeed, the Court stressed that “both sets of proceedings relied on evidence resulting from the same criminal investigation, related essentially to the same allegations involving money laundering by the individuals and companies concerned, and invoked similar legal grounds for the confiscation of the applicants’ assets” (ivi, § 43).

In light of the above, in the Court’s view, “it was not unreasonable for the applicants to consider that judge K.K., who sat as a judge in the Supreme Court, might have had a preconceived view of the merits of the case (that is, the overall legality of the confiscations) on account of his adjudication at first instance in very similar proceedings against two of the same parties. Therefore, objectively justified doubts would arise as to his impartiality” (ivi, § 45). The Court further noted that, while the Supreme Court operates in principle as a court of law with a limited scope of review as to the application of substantive or procedural law by the lower courts, in the present case – as stressed by the applicants – it “did, in fact, express itself to some extent as to the merits of the case, in deciding on the admissibility of the appeal” (ibidem). The Court also attached decisive weight to the fact that no measures enabling the applicants to raise the question of impartiality in due course had been taken by the domestic courts.

With regard to individual measures, the applicants requested that the Court order the Albanian Government to reopen the proceedings before the Supreme Court, so that their claims could be reassessed by an impartial tribunal. In this respect, the Court reiterated that, although it is for the State concerned “to choose the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing a violation of Article 6, especially in cases where the Court has found that the domestic tribunal did not meet the Convention requirements of independence and impartiality” (ivi, § 50).

The team from Saccucci and Partners providing legal assistance to the applicants in the case in question was composed of Avv. Prof. Andrea Saccucci, Avv. Giulia Borgna and Avv. Valentina Cafaro. For additional information or enquiries, send an email to: studio@saccuccipartners.com.

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