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DEFAMATION TRIALS

Summary of Findings
While the physical violence and harassment suffered by journalists are perhaps the most dramatic violation of media freedom in Albania, the threat of defamation suits may have an equally pernicious effect. This part of the report reviews six cases that resulted in the convictions by Albanian courts of five journalists for defamation against politicians and officials of the governing Socialist Party. These cases include all major defamation actions brought by senior political figures or government officials against journalists and adjudicated in 2000 or 2001. A small number of similar, more recent cases that had not reached a final judicial resolution by the end of 2001 have not been included in the report. Three of the journalist defendants in the cases discussed here worked at the time for an opposition party newspaper, while the other two write for unaffiliated newspapers. The editor-in-chief of Rilindja Demokratike is a defendant in two cases. In four of the cases the journalist defendants were found liable under both criminal and civil defamation laws, and were ordered to pay both penal fines and civil damages.

The analysis of the six cases reveals a pattern of serious violations of press freedoms, and of the right of Albanians to be informed on matters of public interest. It also exposes a huge gap between the degree of protection granted to freedom of expression by the Constitution of Albania and international human rights treaties ratified by Albania, and the capacity or willingness of the Albanian judiciary at all levels to enforce and guarantee those freedoms.

The violations of media freedom that emerge in the defamation cases are a result of shortcomings in both the relevant legal framework and its application by the Albanian courts. To begin with, Albanian law includes criminal sanctions, up to a maximum of two years of imprisonment, for criminal insult and criminal libel offenses. Human Rights Watch maintains that, as a matter of principle, criminalization of defamation is an unnecessary and disproportionate measure that, in itself, violates freedom of expression and media freedom. It serves no legitimate aims that cannot be sufficiently protected by private law remedies. In addition, some of the criminal defamation offenses in Albanian law, such as insult or defamation of public officials, are so undefined or vague that they leave wide open the possibility that criminal sanctions will be indiscriminately used to sanction legitimate speech. In fact, and perhaps inevitably, Albanian courts do abuse this unfettered discretion. For all these reasons, Human Rights Watch considers that defamation should be completely decriminalized in Albania.

A seriously flawed part of Albanian criminal defamation laws are those provisions that provide special protection to public officials, including government officials of all levels. Whereas private victims of defamation are responsible for making their own criminal defamation cases, state officials enjoy the assistance of public prosecutors in prosecuting their alleged defamation. The active involvement of public prosecutors, the state's criminal investigation arm, in defamation actions brought by public officials is inconsistent with international standards, and has a seriously chilling effect on press freedom, one that deters investigative journalism and undermines the media's public watchdog role. Such privileged standing of public officials goes against the established principle in international human rights law that press freedoms are wider, not narrower, vis-à-vis politicians and government officials than the ordinary citizen. The offenses of official defamation should be abolished without delay.

Albanian civil defamation laws, which make harm to reputation a tort, suffer from even greater vagueness and lack of defined standards than the criminal laws. The case law of Albanian courts has not reduced the legal uncertainty that surrounds their application. Thus, the courts and lawmakers have failed to establish clear and adequate standards of liability, burden of proof, and compensation in civil defamation cases. Such failures, coupled with the judiciary's emerging tendency to order highly punitive and disproportionate damage awards against journalists, makes the need for a thorough reform of civil defamation laws in Albania pressing. Such reform should include the introduction of a statutory cap on the amount of civil awards for non-material harm to reputation.

Apart from the letter of defamation laws, the six cases described in this report show that the Albanian courts' application of the law is of even greater concern. In the context of criminal defamation cases, one of the most serious violations is derogation from the principle that a criminal defendant is presumed innocent. In five out of the six defamation trials in this section the courts placed the burden of proof on the journalist defendants. In all five cases the defendants were convicted for failure to prove the truthfulness of their statements and/or their good faith. These cases suggest that, unless a defendant can prove that the allegedly defamatory statement is true, Albanian judges tend to conclude not only that the statement is false, but that it was also made in bad faith (that is, with knowledge of such falsity). (See, for example, Kryemadhi v. Patozi.) This includes those cases where the statement at issue was an opinion or value judgment, which, almost by definition, are not susceptible to the requirement of proof. In sum, Albanian courts presiding over defamation cases have generally reversed the presumption of innocence into a presumption of guilt.

Similarly, courts frequently make the erroneous assumption that journalists who refuse to disclose their sources have acted in bad faith and are therefore guilty of malicious defamation. The courts fail to acknowledge that the journalists' right to protection of their confidential sources is an essential part of press freedoms. (See, for a clear case in point, Kryemadhi v. Patozi.) Albanian lawmakers should adopt legislation that specifically establishes that principle and bars judges from drawing negative inferences from a journalist defendant's refusal to disclose the identity of their sources.

All six judgments reviewed in this section also suffer from poor reasoning and insufficient evidence on the record to justify the criminal and civil sanctions imposed on the journalist defendants. Some cases, in which the judges failed to take into account relevant evidence beneficial to the defendant, suggest judicial bias against the defendant. (See Hoxha and Hafizi cases.) In yet other cases, the analysis reveals serious violations of the defendant's due process rights, such as the right to be heard or the right to counsel. (See Hoxha and Kryemadhi cases.)

The greatest shortcoming, however, of the Albanian courts' approach to these cases is probably their failure to acknowledge the human rights implications that are bound to arise from the application of defamation laws. This is, more simply, a failure to take rights seriously. In none of the six cases did any of the courts, at any level of the judicial pyramid, seek to balance a public person's right to reputation with freedom of the press and the general democratic interest in promoting public debate. Such insensitivity to the importance of rights is also apparent in the judges' failure to address the defendants' arguments based on the Albanian Constitution or the European Convention on Human Rights and Fundamental Freedoms. In fact, the courts largely ignored the rich jurisprudence of the European Court of Human Rights.44

The performance of the High Court, Albania's highest ordinary court with special responsibility for enforcing fundamental rights, is particularly disappointing. The High Court summarily dismissed, without discussion, the appeals filed by the defendants in three of the cases under review-in spite of the serious human rights violations committed by the lower courts. (For a detailed discussion of the High Court's performance, see Kryemadhi v. Patozi.)

Overview of Legal Standards

Freedom of Expression in International Law and Practice
Freedom of expression is a fundamental human right essential to individual self-fulfillment as well as the effective functioning of a democratic society. It is specifically guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR) and, in similar language, by article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).45 Article 10 of the European Convention recognizes that:

[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The second part of article 10 establishes that the exercise of those freedoms can only be subject to restrictions that "are prescribed by law and are necessary in a democratic society" in order to protect specific public and private interests, such as "the reputation or rights of others." The European Court has determined that the evaluation of any such restrictions presents the court "not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted."46 Restrictions can only be permissible under Article 10 if warranted by a "pressing social need" and if proven to be proportionate to the legitimate aim pursued.47

The European Court has established particularly strong protections for press freedoms and press defendants. It reviews sanctions against the press in the light of what it calls "the pre-eminent role of the press in a State governed by the rule of law," and the right of the public to receive information and ideas:

Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.48

For these reasons, the press is entitled to the greatest protection under the convention when it covers matters of public interest. An important element of this general principle is, according to the European Court's case law, that the reputational rights of politicians and government officials are entitled to less protection vis-à-vis the press than those of private citizens. In the words of the court, a politician "inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance ...."49

That politicians and other public figures relinquish part of their rights to reputation and privacy, and must therefore tolerate, as a matter of law, wider and more intense scrutiny of their conduct is well established in international human rights law. The Inter-American Commission on Human Rights expounded on this principle in its report on desacato [contempt] laws: "[I]n democratic societies political and public figures must be more, not less, open to public scrutiny and criticism. ... Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism."50 According to the Siracusa Principles on the limitation of civil and political rights, the restriction clauses in article 19 of the ICCPR "shall not be used to protect the state and its officials from public opinion or criticism."51

The European Court has reviewed more than a dozen cases in which journalists and others have been convicted by the domestic courts of states party to the convention for various types of defamation offenses. In applying the general clauses of article 10 to these cases, the court has established several important principles. A central theme of the European Court's defamation case law is the distinction made by the court between statements of opinion (or value judgments) and statements of fact. "The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof," the court held in the landmark Lingens case.52 It follows that a journalist cannot be required by law to prove the truthfulness of a supposedly defamatory opinion; such a requirement, and any punishment based on the defendant journalist's failure to meet it, would be "itself an infringement on freedom of expression."53 The same applies generally to statements that reflect public opinion.54

Value judgments on matters of public interest deserve therefore a very high level of protection-unless made in bad faith, based on grossly inaccurate facts, or expressed in a particularly insulting fashion. Not every strongly worded statement, however, will fall outside the protective sphere of article 10. As the European Court has consistently affirmed, freedom of expression:

applies not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no `democratic society'.55

Freedom of Expression under the Albanian Constitution
Freedom of expression and media freedoms are expressly guaranteed by article 22 of the Albanian Constitution (1998), which establishes the following:

      1. Freedom of expression is guaranteed.
      2. Freedom of the press, radio and television is guaranteed.
      3. Prior censorship of means of communication is prohibited.

Article 23 of the constitution supplements article 22 by providing for a general "right to information":

1. The right to information is guaranteed.
2. Everyone has the right, in compliance with law, to obtain information about the activity of state organs, and of persons who exercise state functions. 56

The constitution recognizes that most fundamental rights are not absolute and can be restricted "by law, in the public interest or for the protection of the rights of others." Such restrictions must, however, be "in proportion to the situation that has dictated [them]" and "in no case may exceed the limitations provided for in the European Convention on Human Rights."57 This latter provision is important for freedom of the media in Albania because the European Convention and the jurisprudence of the European Court spell out in more detail the legitimate grounds for restricting those freedoms.

By virtue of the "European Convention" clause of the Albanian Constitution, the European Convention operates as a minimum threshold of protection of basic rights. Albanian courts can always provide a higher lever of protection than that granted by the convention, but they cannot, as a rule, allow for restrictions of rights that would not be permissible under the convention.58 It is therefore fair to say that the Albanian Constitution has incorporated the substantive provisions of the European Convention.

The status of the European Convention in the Albanian legal system is reinforced by the fact that the Albanian Parliament has ratified the convention and its substantive protocols. As such, these international instruments "constitute part of the internal legal system" and even prevail, in case of conflict, over ordinary Albanian laws.59 In other words, Albanian judges must apply the provisions of the European Convention and give them priority over inconsistent domestic legislation.

Lastly, the Albanian Constitution sets up a multi-tiered system of judicial review, with the Constitutional Court at its top. The Constitutional Court reviews and strikes down statutes and other norms that are incompatible with the constitution or a superior international agreement. Ordinary judges cannot strike down statutes. They do exercise, however, a significant degree of constitutional review by virtue of a constitutional obligation not to apply laws that they consider to be unconstitutional. In such cases, ordinary courts must suspend the proceedings and send the question of constitutionality to the Constitutional Court, which makes a final and binding decision on the fate of the statute.60 When possible, ordinary courts can avoid such a referral by interpreting statutes in ways that are compatible with the constitution and international human rights treaties.

However, individuals who believe that their constitutional rights have been violated by a statute or judicial decision have limited access to the Constitutional Court. They can file a complaint directly with the Constitutional Court only for alleged violations of their "constitutional due process rights."61 If the alleged violation involves a substantive (as opposed to a procedural) right, such as freedom of expression, the only way to have the constitutional question reviewed by the Constitutional Court is through a referral by an ordinary judge.62 If an ordinary court is not persuaded that the statute is unconstitutional, the individual plaintiff is left with no further constitutional remedy. As a result of this arrangement, the ordinary judiciary, with the Supreme Court at its top, tends to exercise a degree of "negative judicial review" in the area of substantive rights. Upon exhaustion of domestic remedies, individuals can also take Albania to the European Court for violations of their rights under the ECHR. This option, however, is very underused in practice and the European court has yet to take its first Albanian case.

Breaches in Law

Albanian Criminal Defamation Laws
The Albanian Criminal Code (ACC) includes at least five provisions that can be characterized as criminal defamation laws. These are simple insult, simple libel, insult [of public officials] related to their public function, libel [of public officials] related to their public function, and libel of the president of the republic.63

Section 119 of the ACC criminalizes insult:

1. The intentional insult of a person shall be a criminal misdemeanor punishable by a fine or up to six months of imprisonment.
2. The same offence, when committed publicly, to the detriment of several [more than one] persons, or more than once, shall be a criminal misdemeanor punishable by a fine or up to one year of imprisonment. 64

Section 119 does not define insult, though, and does not clarify what constitutes a "publicly committed" insult. According to a leading Albanian criminal law commentator, Albanian courts have interpreted insult to include "humiliating, immoral or ridiculing words, images or gestures," which can consist of things such as caricatures or sketches. Judicial practice has found defendants guilty of public insult for insolent words uttered in the presence of as few as seven or eight persons.65 An insult disseminated through mass media is always considered to be a public insult punishable under the second paragraph of section 119.

Section 120 of the ACC defines and criminalizes libel in the following terms:

1. The intentional dissemination of utterances [or] any other information, which are knowingly false, [and] which damage the honor and dignity of a person shall be a criminal misdemeanor punishable by a fine or up to one year of imprisonment.
2. The same offense, when committed publicly, to the detriment of several [more than one] persons, or more than once, shall be a criminal misdemeanor punishable by a fine or up to two years of imprisonment.

Section 120 defines libel narrowly and sets a rather high threshold of evidence. A defendant can be found guilty under section 120 if it is proven that the defendant (a) disseminated utterances detrimental to another person's public esteem, (b) which are false and (c) sufficiently concrete, and (d) that he or she did so in full awareness of their falsehood.66 In other words, truth of defamatory statements is a complete defense in a section 120 action. So is the lack of a malicious, defamatory intent on the part of the defendant; under the ACC criminal libel cannot be committed by negligence. Thus, a newspaper that publishes false and defamatory statements cannot be held criminally liable if the publication was made in good faith or due to simple failure to check the accuracy of information.

Insult and libel against public officials are defined under Chapter VIII of the ACC on Crimes against the Authority of the State. The key elements of these offenses-intentional insult or intentional dissemination of false information-are essentially the same as in general insult and general libel. The two Chapter VIII provisions differ in that they provide special protection to persons "who perform a state function or a public service" and become victims of defamation for reasons "related to their state activity or public service." Sections 239 and 240 apply, therefore, only to cases in which the nature or substance of the defamatory allegations against public officials is connected to their official activities. The protected category is usually construed very loosely by the Albanian courts: for example, courts have applied sections 239 and 240 to defendants accused of defaming public schoolteachers or medical personnel in the public health system.67 Likewise, in practice the link between the nature of the defamatory statement and the victim's official activity can be blurred or remote.

Punishments for libel against public officials are the same as those applicable to general libel, including the higher punishment for public libel. The sanctions applicable to insult of public officials, however, are 100 percent higher than those applicable to simple insult.68

Both general and official defamation offenses are part of a limited category of crimes that can only be investigated and prosecuted upon the alleged victim's request. (This is an exception to the general rule of Albanian criminal procedure that crimes are prosecuted automatically, upon notice, by the public prosecution offices.) The differences between general and official defamation proceedings are greater than the similarities, however. Public officials who bring defamation complaints under ACC sections 239/240 enjoy significant procedural privileges compared to private citizens who can only bring section 119/120 actions. Under section 239/240, alleged victims who are public officials need only file a complaint with the police or a public prosecutor, who then takes over the case. Once a section 239/240 complaint is filed, the public prosecutor becomes responsible for its investigation and for pursuing the case in court in the same way that typical prosecutions are handled.69 A private citizen, on the other hand, has to file a section 119/120 complaint directly with the court and has the burden to "prove the charges" in the course of the trial-as a so-called "damaged-accuser." There is no pre-trial investigation; the prosecutor may simply "participate in the adjudication of such cases" and is free to recommend that the defendant be either acquitted or found guilty.70

Human Rights Watch opposes, generally and as a matter of principle, all laws that make defamation a criminal offense. The social stigma and criminal sanctions associated with such laws, especially those that provide for prison sentences, have a profound chilling effect on media freedom and democratic debate in general. Criminal defamation laws are frequently used and abused by governments and the powerful to harass, intimidate and punish the critical media. In addition, criminal sanctions for defamation are excessive, disproportionate and unnecessary. One's honor and good reputation are deeply personal interests, and their protection, while legitimate, can be adequately secured by means less restrictive than criminal sanctions. Non-criminal means of redress, such as carefully tailored, private law remedies, provide sufficient protection for genuine victims of defamation. Criminal defamation laws are often remnants of repressive regimes and should have no place in states committed to freedom of expression and democratic openness.

Human Rights Watch calls for the repeal of all criminal defamation laws in force in Albania. The following discussion of those laws, and of their application in six cases, should not be construed as undermining that basic premise. Indeed, this analysis is based upon, and lends support to, the belief that criminal defamation is inherently inimical to free expression.

Albanian criminal defamation laws include certain provisions that are particularly threatening to freedom of expression. To begin with, the procedural privileges granted by Albanian defamation laws to public officials, who can avail themselves of the resources and authority of the public prosecution machinery, are unjustified. Such privileges have the effect of giving public officials greater protection than private citizens from potentially legitimate criticism involving issues of public interest. Because of their very definition, sections 239 and 240 of the ACC protect the reputation of public officials in the context of their official activities; they are also designed to protect the authority of the state as an institution. This paradoxical approach runs against the well-established principle in international law that government institutions, politicians and government officials must be more open to public criticism and press scrutiny than private citizens, not less. As the Inter-American Commission noted in its report on desacato laws, special protection for government officials "inverts the fundamental principle in a democratic system that holds the Government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers."71

In addition, there is always the danger that powerful politicians and government officials will abuse the authority of the police and public prosecutors in order to intimidate journalists and prevent legitimate criticism. Such danger is even more significant in countries like Albania, where public prosecutors are far from being insulated and protected from improper influences. In fact, the cases described in this report suggest that such prosecutorial abuses do occur in the investigation of section 239/240 defamation cases brought by Albanian politicians against the press. The fact that Albanian courts have inflated the category of section 239/240 "public officials" is another reason for concern. Finally, the practical privileges enjoyed by public officials are even more untenable if one considers that politicians and other public figures are usually in a much better position than private citizens to respond publicly to unfair criticism and to undo or mitigate damage to their reputation.

Even in the absence of such procedural privileges for public officials, the existence of insult and libel against public officials as separate offenses, distinct from simple insult and libel, is similarly unjustified. The raison d'etre for such special crimes is not the need to protect the dignity and reputation of the individual public official, but the abstract "reputation of the state." But such interference with freedom of expression that is unrelated to protection of individual fundamental rights or compelling public interests cannot be deemed "necessary in a democratic society." The authority of a democratic state is better served by making public servants more, rather than less, subject to public scrutiny.

Albanian Civil Defamation Laws
Under the Albanian Civil Code, a person who has suffered "harm to the honor of his personality" has a right to compensation (also referred to as non-pecuniary or moral damages).72 Since the Civil Code does not clarify the standard of liability for civil defamation, general standards of tort liability apply: the defendant is liable if he or she has caused an "illegal damage" and has acted with fault. The damage is illegal "if it results from the infringement or violation of another person's rights or interests that are protected by the juridical order or good custom."73 Fault may result from either deliberate wrongful acts or negligence.

It is not clear whether the truthfulness of a defamatory statement or good faith can be a defense in a defamation case. In practice, Albanian courts do appear to assume that proving the truth of a defamatory statement exempts the defendant from liability. A greater source of legal uncertainty is the failure of Albanian law to provide any guidance on the quantification of moral damages. Nor does Albanian case law on civil defamation, which is rather undeveloped, shed too much light on these issues. The judgments in the civil defamation cases that are analyzed in this section include very little or no discussion of liability standards or the methodology used for setting the level of damage awards.

Article 10 of the European Convention requires that any restrictions on freedom of expression "be prescribed by law."74 To meet this requirement, the European Court has held, any such restriction must be "formulated with sufficient precision to enable the citizen to regulate his conduct."75 The vague definition of harm to one's reputation and the significant uncertainty surrounding the standards and level of liability in Albanian civil defamation law raise serious concerns whether the Civil Code provisions meet the ECHR's foreseeability test. The inability of the media to reasonably predict the boundaries of "permissible defamation" leads them to err on the safe side; it also gives Albanian judges wide discretion to apply civil defamation laws in ways that can be easily abused to sanction protected speech. The cases discussed below illustrate the risks of such indefinite laws.

Breaches in Legal Practice

Case of Petro Koçi v. Astrit Patozi
In 1999 Petro Koçi, a former minister of interior and Socialist Party executive, brought criminal and civil defamation actions against Astrit Patozi, editor-in-chief of Rilindja Demokratike (RD). The object of the lawsuits was an article published by RD, which alleged that Koçi was constructing a gas station and referred to him as the "bandit Petro Koçi."76 The article was signed by a certain Fadil Molla. Koçi claimed that he did not own or have any interest in any gas station business.77 He filed both a section 119 complaint for criminal insult, for having been called a "bandit," and a section 120 charge for criminal libel regarding the gas station allegations.

A judge of the Tirana District Court concluded that Fadil Molla was a pseudonym and accepted the charges against Patozi after the RD informed the court that no person with such name worked for RD. The single-judge court held that Koçi had failed to provide any evidence that the allegations about his gas station interests were "completely false," and acquitted Patozi of the libel charges.78 This is the only case among those reviewed in this report in which the court considered that the damaged-accuser has the burden to prove all elements of a libel offense, including the falsity of the allegations made by the defendant. The judge found the only piece of evidence provided by Koçi, a copy of the article, to be insufficient.

The district court found Patozi guilty, however, of section 119 insult, and ordered him to pay a 30,000-lekë (U.S. $220) fine. The judge held that calling Koçi a "bandit" was an unjustified attack against his "honor and dignity." The judgment did not discuss whether the use of that term constituted an expression of an opinion, and whether that opinion was based on factual allegations that were susceptible of proof. The RD article referred to Koçi as a "bandit" because of his alleged role in the 1997 revolts that took place in southern Albania against the then-Democratic Party government-which the DP has condemned as an armed rebellion to overthrow the constitutional order. The article accused Koçi of having "burned down public institutions" in Fier (southern Albania), and of financing the gas station he was allegedly building with "the money he robbed during the armed uprising." It also carried a photograph with the caption "Petro Koçi ... leading the mob in March 1997." In view of the factual nature of the allegations underlying the "bandit" characterization, the district court should have required Koçi to prove their falsity.

In contrast with international and European human rights law, the district judge considered the fact that Koçi was at the time a leading SP politician to be an aggravating circumstance against Patozi. By the same token, the court failed to take into account the public interest in the subject addressed in the article-a factor that under the European Convention might justify wider latitude for media commentary. At the time, the 1997 unrest continued to generate intense political and public debate, as an extremely controversial series of events interpreted in opposite directions on the left and right of the political divide. The judgment made no reference whatsoever to the constitutional protection of press freedom and made no attempt to justify its holding in light of those constitutional principles.

In spite of the extreme nature of the term used by RD to describe Koçi, the Albanian Constitution and European Convention protect not only moderate expression but also speech that is likely to "offend, shock or disturb."79 In a similar case, the Spanish Constitutional Tribunal reviewed the conviction of a journalist who had called the king of Spain a "fascist" in a critical article about the government's policies on the world soccer championship. Overturning the conviction, the Spanish Tribunal wrote:

The maximum scope that freedom of ideology has in our Constitution must be pointed out, since it is the basis, together with the dignity of the person and his inviolable, inherent rights, of all other fundamental rights and freedoms ... .80

Patozi appealed the criminal sentence to the Tirana Court of Appeals, but this upheld his conviction.81 So too did the High Court, which summarily dismissed Patozi's second appeal as "legally unfounded."82

The civil part of Koçi's lawsuit was tried by another judge of the Tirana District Court in 2001. Patozi claims that he was not notified of the case, and was completely unaware at the time that the district court was adjudicating the civil lawsuit against him.83 Human Rights Watch was unable to verify these allegations because of lack of access to the record of the civil case and the full text of the civil judgment.84 It appears, however, from a summary of the court orders in the case (known as dispozitivi i vendimit in Albanian) that the district court judge ordered Patozi to pay Koçi 750,000 lekë (approximately U.S. $5,360) in damages.

Such a huge award by Albanian standards-equal to more than fifty average monthly salaries-appears to be highly punitive and grossly disproportionate to the supposed offense. It is also inconsistent with the assessment of Patozi's criminal liability by the criminal trial judge, who imposed a relatively moderate criminal fine.85 The fact that Koçi took no steps to mitigate the damage to his reputation, for example by requesting RD to publish an apology or a rebuttal, makes the civil award appear even more excessive.

Case of Ndre Legisi v. Artan Hoxha
In August 1999 Gazeta Shqiptare ran a story about the dismissal of the Durrës chief of the police intelligence service, Krenar Kasa, by the minister of interior.86 The author of the article, staff reporter Artan Hoxha, alleged that Kasa had been fired following a high-level meeting convened by the minister, in which Kasa had accused Ndre Legisi and Namik Dokle of being "implicated in smuggling [activities] that go through the Durrës port." At the time, Legisi was a Member of Parliament and SP executive, while Dokle was the deputy speaker of parliament (and also a member of SP). The article quoted an unnamed official of the Ministry of Interior as saying that, encouraged by the minister to come forward with specific names of politicians involved in illegal activities, "Kasa named Legisi and Dokle, who, according to Kasa, have connections with smuggling channels."87 The title of the article, "Legisi and Dokle smugglers," appeared also as a prominent headline on the daily's front page. The next day Gazeta Shqiptare published a letter from Legisi, who denied the allegations and expressed his intent to bring a defamation action against Hoxha.

Both Legisi and Dokle filed ACC section 240 charges against Hoxha with the Tirana prosecutor's office for libel related to their respective public functions. (Dokle dropped the charges later for unknown reasons). A judicial police officer named Bledar Çuçi summoned and questioned Hoxha, who felt obliged to disclose one of his sources at the Ministry of Interior: Sofokli Duka, at the time general director of the police intelligence service and Kasa's direct superior.88 After questioning Duka, Çuçi recommended that the case prosecutor close the investigation on the ground that the "fact did not constitute a criminal offense." Çuçi's memorandum on the case, on file with the Tirana District Court, states:

"Sofokli Duka was interrogated [by me] and admitted the fact that, in the relevant meeting [in the ministry] several people were named as tied to smuggling, including Ndre Legisi ... and also [admitted] that he confirmed this information to the journalist Artan Hoxha.89

Acting on Çuçi's recommendation, the case prosecutor, Shkëlqim Laze, closed the investigation with a similar reasoning: Hoxha had not committed libel because he had only publicized the true fact that a police intelligence agent had made allegations against Legisi in a closed meeting with the minister of the interior. The prosecutor decided that Hoxha could not be held liable for the headline "Legisi and Dokle smugglers" because he was "not responsible for choosing the headline."90

In mid-December 1999, however, the chief prosecutor for the Tirana district, Dolores Velaj, overruled the case prosecutor's decision and ordered the reopening of the criminal case against Hoxha.91 Velaj appointed a new prosecutor to the case and instructed him to question Legisi, Kasa, and Gazeta's editor-in-chief, and also investigate whether the editor-in-chief was criminally liable for defaming Legisi. The new prosecutor interrogated Hoxha several more times and eventually filed section 240 charges against him with the Tirana District Court. No charges were filed against the editor-in-chief.

Velaj's order gave no reasons whatsoever for overruling the first case prosecutor and reopening the case against the journalist. Under Albanian criminal procedure, the victim of a crime can appeal to the competent court of law against a prosecutorial decision to terminate an investigation against a suspect without bringing charges.92 Legisi filed no such appeal when Hoxha's investigation was terminated. Instead, it appears from the case record that he complained to the Tirana chief prosecutor. Even if Velaj's overruling order, which followed Legisi's complaint, was not strictly unlawful,93 the lack of any justification in that order raises serious questions as to whether Velaj exercised her discretion properly and impartially.

At the trial, Duka testified that he had talked to Hoxha about the ministry meeting, but had told him that Legisi's name had come up "in another context" unrelated to smuggling. Kasa testified that he had spoken in the meeting of "a former police officer ... who abused Legisi's name" but without alleging that Legisi himself was involved in any illegal activities.94 Hoxha asserted that he had received the initial information about the meeting discussion from another person, whose identity he could not disclose, and that he had contacted Duka as a confirmation source. Hoxha maintained that he had correctly quoted Duka in the article.

The evaluation of such conflicting evidence by the district court is rather unconvincing, as is the court's reasoning generally. The single-judge court held that "the existence of all elements of the [libel] offense had been proven" and found Hoxha guilty of criminal libel.95 The four-paragraph judgment fails to discuss the mens rea element of criminal libel: whether the evidence presented in the trial proved beyond a reasonable doubt that Hoxha published allegations that he knew were false, with the malicious intent to defame Legisi. As already noted, it is not enough, in an Albanian criminal libel case, to prove the falsity of defamatory allegations. The fact that Hoxha contacted Duka to verify his primary information, and the discrepancy between Duka's statements to the first case prosecutor and his testimony at the trial, appear to raise at least a reasonable doubt about the existence of such a malicious intent in Hoxha's mind.96 The court opinion relied in part on Kasa's testimony that he had not been contacted by Hoxha before the publication of the article, but Hoxha never claimed to have received the information about the meeting discussions directly from Kasa. Hoxha did nevertheless refer to having been part of an off-the-record discussion that Kasa had with several reporters about his dismissal, the day before Hoxha's article was published-which Kasa did not deny.97

It is not clear from the judgment whether the court imposed the burden of proving the elements of the offense upon the defendant or the accuser. But irrespective of this, the district court attached no importance to the fact that the references in the article to Legisi's alleged implication in smuggling were much more indirect and qualified than the headline suggested; it also failed to consider whether, as is customary in the Albanian media business, the headline might have been chosen by someone other than the indicted journalist.

On the procedural side, Hoxha claims that he and his lawyer were denied the right to be present and make concluding remarks at the final court session, held on May 31, 2000, in which the court disposed of the case. This was because, for personal reasons and without notifying the defendant, the judge anticipated the beginning of the last session by one hour. "By the time we showed up the judge had already delivered the sentence and was about to leave the courtroom," Hoxha told Human Rights Watch. In fact, the transcript of the last session of the trial fails to indicate the starting and ending times, although this is specifically required by section 345.1 of the ACCP. The transcript indicates that the judge "took notice of the defendant's absence" and appointed a court-available defense counsel just for the final hearing. Such one-session appointments of defense lawyers, which appear to be a rather typical practice in the Tirana district court, raise serious questions as to whether the defendant's constitutional rights to counsel were preserved.98 For Hoxha, who had been represented by a counsel of his own choice throughout the trial, the last-minute appointment of a counsel wholly unfamiliar with his case was a clear violation of his right to counsel. Rather unsurprisingly, Hoxha's court-appointed counsel agreed with the requests made by the prosecutor in his final remarks (the so-called pretenca), including for a guilty finding, but asked the court to impose a "more lenient sentence."99

The district court judge ordered Hoxha to pay a 30,000-lekë ($220) criminal fine. Hoxha appealed the sentence to the Tirana Court of Appeals, which upheld the district court decision in full.100 The appeal judgment failed to address any of the objections raised by Hoxha's appeal, including arguments about the procedural violations of the last session and the relevant case law of the European Court of Human Rights.

Unable to pay the criminal fine, Hoxha asked his newspaper to pay it, but the newspaper refused. Hoxha has been notified that the unpaid fine will be converted into thirty days of imprisonment. Although he has not been jailed so far, he fears that that could happen at any time.101

Case of Monika Kryemadhi v. Astrit Patozi
In August 2000 Monika Kryemadhi, head of the Socialist Party youth organization and spouse of Prime Minister Ilir Meta, brought criminal and civil defamation charges against the editor-in-chief of Rilindja Demokratike, Astrit Patozi, and two reporters of the same newspaper, Redin Hafizi and Shemsi Peposhi. Although a judge of the Tirana District Court heard all three cases in the same trial, the objects of the charges were three separate articles that were each written by, or attributed to, one of the defendants. Even though it can be argued that some of Hafizi and Peposhi's respective allegations or criticism of Kryemadhi were overlapping, there was no claim or finding that they conspired to defame Kryemadhi. The article for which Patozi was sued stood completely alone. In view of these circumstances, the joinder of the three cases into one appears to have been unjustified.102 For this reason, they will be discussed separately in this section, starting with Patozi's case.

In July 2000 RD published on page five an article with the headline "Monika, six thousand dollars a month only at the Rogner" and the deck "Where does the prime minister's spouse find all this money?"103 The article, signed "RD," alleged that Kryemadhi spent thousands of dollars every month at one of Tirana's most exclusive hotels. The anonymous author quoted an unnamed "employee" of the hotel as saying that "the bills of the prime minister's wife go anywhere between 300,000 and 500,000 lekë" on an average day, and that she was "a daily customer" at the hotel. Then the article went on:

In fact, that sum [$6,000] may not be so huge if one compares it to [the proceeds] of a smuggled tractor-trailer or a cannabis shipment; but if one has to trust Prime Minister Meta when he says that he is fighting corruption, it is a hell of a lot of money. ... There have been rumors for a long time that the prime minister's spouse is deeply implicated in corruption, abusing not only her husband's position but also her own, old and new, connections. ... It is appalling to see that such huge expenses, which are five times greater than the Meta family's official income, are little more than pocket money for the prime minister's lady. ... But it is easy for Monika to spend all this money, which goes into the pockets and safes of her household simply because her husband is the prime minister.

Kryemadhi brought section 120 criminal libel charges against Patozi as editor-in-chief of the newspaper. A judge of the Tirana District Court held that Patozi "produced no evidence to prove the truthfulness of the statements made in the article" and found him guilty.104 Patozi claimed that revealing the name of the hotel employee who provided the information to RD would have certain and serious repercussions for that person. More importantly, however, Patozi's counsel argued that shifting the burden of proof to the defendant-rather than requiring the damaged-accuser to prove both the falsity of the factual allegations and the defendant's malicious intent-violated the constitutional principle of presumption of the defendant's innocence.

Patozi's burden of proof challenge is compelling. Both the Albanian Constitution and the ACCP establish that a defendant in a criminal case "shall be presumed innocent so long as his guilt is not proven by final judicial decision."105 The requirement that the prosecution must bear the burden of proving all elements of a criminal offence is a direct outcome of the presumption of innocence. The European Court of Human Rights has expressly made this point in interpreting the ECHR's "presumption of innocence" clause:106

[Paragraph 2 of article 6] requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offense charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defense accordingly, and to adduce evidence sufficient to convict him.107

The fact that section 120 criminal libel charges are not brought and investigated by the public prosecution, but directly by the victim, does not eliminate the presumption of innocence. Indeed, article 59 of the ACCP provides that the damaged accuser is entitled to "participate as a party to the trial [in order] to prove the charges ...." Despite any similarities with private actions, section 120 charges are criminal charges that may lead to criminal sanctions and all the social stigma that comes with them. By turning the presumption of innocence upside down in the Kryemadhi cases, the district court violated the defendants' fundamental right to a fair trial under the Albanian Constitution and the ECHR.

In Patozi's case the court also violated his right to protect journalistic sources. The judge dismissed Patozi's refusal to reveal the identity of the hotel employee as "without any legal basis." While there is no general provision in Albanian law that protects journalists from compulsory disclosure of their confidential sources,108 protection of sources is an essential element of internationally guaranteed press freedoms. The European Court in Strasbourg, for one, has described such protection as "one of the basic conditions for press freedom" in a democratic society, and held that "limitations on the confidentiality of journalistic sources call for the most careful scrutiny."109 An enforceable right to withhold the source of information received in confidence is particularly critical to the ability of the press to investigate cases of official corruption and government abuse.

In the context of a criminal defamation case with a journalist as defendant, the court should not only refrain from ordering the latter to disclose confidential sources, but also from making any negative inferences as a result of the defendant's refusal to do so. In Patozi's case, however, the district judge did make such a negative inference, holding that the defendant's refusal to disclose his source "indicates that such [exonerating] evidence does not exist, that the allegations in the article are untrue, and are made with the intention to harm the honor and dignity of the accuser." (emphasis added)

The district court may have also erred in evaluating the nature of the critical remarks in the article. It found, for example, that the article included "allusions that the monies [allegedly spent by Kryemadhi at the hotel] are proceeds of corruption and drug trafficking." But the references to smuggling and drug trafficking in the article are rhetorical statements that do not amount to direct accusations. As the European Court has consistently noted, "journalistic freedom covers also possible recourse to a degree of exaggeration, or even provocation."110 In addition, article 10 of the European Convention "protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed."111

Lastly, the district judge failed to take into account that the alleged victim and her spouse were high-profile politicians, and that official corruption generally is a matter of intense public debate in post-communist Albania. In other words, the district court did not even begin to strike a balance between the accuser's legitimate right to reputation, on one side, and on the other, the defendant's freedom of expression and the right of the public to be informed on issues of general concern.

The district court ordered Patozi to pay a 100,000 lekë ($720) criminal fine.

Having found Patozi guilty of malicious criminal libel, the district court proceeded to hold him liable under civil defamation laws and awarded Kryemadhi 600,000 lekë (about $4,300) in non-pecuniary damages. In addition, the court ordered Patozi and the other two defendants to arrange for the publication of a summary of the judgment, at their own expense, in seven daily newspapers and seven television stations for two days. The cumulative cost of such publications is estimated at several hundred dollars. In estimating the damage caused by each of the defendants, the district judge considered "their respective articles, [the fact of] their publication in a newspaper as well as the social position of the plaintiff."112

A finding of criminal liability in a case like Patozi's practically preempts discussion of a whole range of issues that an Albanian court would have to resolve in a stand-alone civil defamation case-the most important of which involve the applicable standards of proof and liability. Given the generally higher thresholds of proof and liability applicable to criminal cases, it is possible to imagine that a defendant may be acquitted of criminal defamation charges and nevertheless held liable under civil defamation laws. Yet, domestic courts and lawmakers in an increasing number of countries have established that, at least in cases that touch upon issues of public interest or involve politicians or government officials, standards of proof and liability in civil defamation trials should be as high as those applicable to criminal trials. In such cases, courts in many countries require the plaintiff to prove that the statement was false and made recklessly or negligently.113

Such legal protections reflect an acknowledgment of the critical mission of the press in a democratic society. The media have a duty to inform the public on matters of general concern and, under modern conditions of competition and information habits, they often cannot afford to withhold publication of a story until they are completely sure that every fact alleged is true. In addition, once in court, journalists may often be unable to prove the truthfulness of a statement that is, in fact, true. This is particularly relevant when they write about official abuse and corruption, whose investigation is often dependent on their ability to guarantee the anonymity of insiders and other confidential sources.

In view of these considerations, the insufficient evidence on the record and the flawed reasoning of the district court, the civil award against Patozi also appears to have been reached in error. The amount of the award, which is equivalent to more than sixty average monthly salaries in Albania, is particularly excessive and punitive, especially considering that the factors relied upon by the court to assess the damage to Kryemadhi's reputation were vague and unsubstantiated.

Patozi appealed the district court judgment to the Tirana Court of Appeals. On appeal Patozi's counsel argued, among others things, that the district court had violated his client's right to be presumed innocent by shifting the burden of proof in the criminal libel case. The three-judge appeals court upheld the trial judgment in full, dismissing the defendant's presumption of innocence challenge as "unfounded in law."114 It did not elaborate, failing to address Patozi's specific arguments based on the Constitution and the ACCP. The appeals judges similarly dismissed, without comment, Patozi's argument that the district court had violated his right not to disclose confidential sources.

Patozi appealed further to the High Court.115 The High Court dismissed the appeal as "inadmissible," without hearing the parties and without providing reasons.116 The High Court ruling is of concern because Patozi's appeal raised important issues of substantive criminal law, constitutional law, and international human rights law that appear to meet the admissibility requirement under Albanian law. In fact, the Albanian High Court has come under increasing criticism from the legal community for routinely abusing the inadmissibility hearings either for "efficiency" reasons-by actually deciding the merits of an appeal in a single session, avoiding debate, and ignoring the need for reasoned judgments-or in order to avoid hearing a politically or otherwise sensitive case.117 The handling by the High Court of the Patozi appeal, and the fact that all appeals to the High Court in the cases discussed in this report were dismissed in a similar fashion, lend support to those allegations. The failure of the five-judge High Court panel to provide any reasons as to why Patozi's appeal was inadmissible-other than concluding that "none of the grounds set forth in [the admissibility provision] of the ACCP ... exist"-is particularly striking. Such failure may well amount to violation of the requirement in the Albanian Constitution that "judicial decisions ... be reasoned."118

If in fact embedded in the High Court's admissibility decision are its conclusions on the merits, then the dismissal of Patozi's appeal, without giving him or his counsel the opportunity to make his case before the High Court, raises serious questions as to whether the judgment preserved the defendant's rights to a fair trial under the European Convention and the Albanian Constitution.119 According to the established jurisprudence of the European Court,

... the Convention does not ... compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6.120

Such article 6 guarantees include everyone's right "to a fair and public hearing" in the course of the "determination of his civil rights and obligations or of any criminal charge against him" (Article 6.1); as well as, in a criminal case, the defendant's right "to defend himself in person or through legal assistance of his own choosing" (Article 6.3(c)). The European Court has suggested that admissibility hearings, which also exist in other European countries, may not be subject per se to the article 6 requirements.121 However, to the extent that the Albanian High Court "determined" Patozi's criminal and civil liability on the merits of the case-and it is difficult to believe it did not do so given the nature of his appeal-it violated his fair trial rights. The same can be concluded if the High Court, for extra-legal reasons, avoided deciding the case on the merits altogether.

The dismissal of Patozi's appeal by the High Court without a full, open, and adversarial discussion of its merits is unfortunate for two additional reasons. The Albanian Constitution assigns the High Court the special role to ensure the "unification of judicial practice" in order to enhance legal certainty.122 The Kryemadhi cases gave the High Court the opportunity to settle the differences of interpretation among and within the lower courts regarding the burden of proof in criminal libel cases. Its failure to make an authoritative ruling on the matter, consistent with the presumption of innocence and other due process rights, left a dangerous degree of legal uncertainty hanging over the head of the Albanian media.

The second and more important reason is related to the special constitutional responsibility of the High Court to guarantee substantive fundamental rights.123 By refusing to address the defendants' constitutional free speech challenges, the High Court panel failed to remedy the rights violations committed by the lower courts. And given the barriers to individual applications to the Constitutional Court, the High Court squandered the last opportunity the Albanian judicial system had to do so.

Case of Monika Kryemadhi v. Redin Hafizi
The object of the civil and criminal actions against Hafizi was an article about the accidental death of two workers in a quarry located in Zall-Dajt (east of Tirana) in which, it was alleged, Kryemadhi had a property interest.124 According to the article, the two victims were untrained workers who were killed while preparing one of the explosions used to obtain the stone. The article quoted statements by Zall-Dajt villagers that Kryemadhi acted as the "boss" of the quarry and visited the site often "in a sport utility vehicle to monitor the work." The article also suggested that Kryemadhi was indirectly liable for the two deaths:

... ten days before the incident Ilir Meta's spouse, blinded by the profits of the [quarry], had fired the dynamite experts and experienced miners, and replaced them with strapped [untrained] fellows that are in abundance in that area. One of the fired dynamite experts related that Monika fired them because they refused to accept a salary reduction.

The article went on to claim that the "massive explosions" and the "lack of the most basic technical security" at the quarry could one day "blow up an entire village." It concluded by accusing the quarry management of failure to pay workers social security and other benefits as required by law.

RD published also, on the same page, the facsimile and full text of a letter allegedly sent to the newspaper by Adem Mancaku, brother of one of the victims, Bajram. The letter charged that "Ilir and Monika had killed [Adem Mancaku's] brother and his friend" and reflected many of the other allegations contained in Hafizi's article.

Kryemadhi asserted that she had nothing to do with the quarry and brought a section 120 criminal libel action against Hafizi. She claimed moral damages, as well. By the time the trial started in September 2000, Hafizi had left Albania indefinitely. The district court proceeded to try him in absentia and appointed a counsel to defend him.125 According to Hafizi, the court-appointed counsel made no effort whatsoever to contact him or his family, still in Albania, throughout the duration of the trial.126 He only learned of the court-appointed counsel through press reports. The case record indicates nevertheless that editor-in-chief Patozi and his counsel made occasional requests and arguments in Hafizi's defense in the course of the joint trial.

The Tirana District Court found Hafizi liable, both criminally and in tort, for failure to prove the truthfulness of his allegations and lack of malicious intent.127 The court ordered him to pay an 80,000-lekë ($570) criminal fine to the state and 500,000 lekë ($3,570) in moral damages to Kryemadhi.

The court's ruling relied heavily on the testimony of Adem Mancaku,128 who denied having written the letter published in RD and stated that, to his knowledge, the owner of the quarry was a person other than Kryemadhi. Patozi responded by arguing that, irrespective of who the official owner was, quarry workers and other knowledgeable sources consistently told RD reporters that Kryemadhi appeared to be the "real boss." Patozi failed, however, to produce Mancaku's letter, which he claimed had been faxed to the newspaper and had since been lost.129

The district court apparently interpreted Mancaku's testimony and RD's failure to produce the letter to raise doubts as to whether Hafizi's allegations were made in good faith, but the district judge rejected several requests (by Patozi) to hear and consider countervailing evidence offered to prove Hafizi's lack of malicious intent. For example, the judge did not admit as relevant evidence three videotaped interviews with Zall-Dajt residents who echoed many of the allegations in Hafizi's article.130 Patozi argued that the taped interviews were relevant because Hafizi had visited the area together with the ATN1 team, and they had interviewed, on and off the record, many of the same people. In an interview with Human Rights Watch, Hafizi played an audiotape containing what he described as his interview with Selman Dajti, one of the persons appearing also on ATN1's broadcast.131 To Hafizi's question about the ownership of the quarry, Dajti replied: "They say it is Ilir Meta's company ... we see his wife driving to [the village] all the time ...."

According to the trial record, the district judge refused to admit the ATN1 videotape, arguing that witnesses must appear personally before the court to testify. The judge failed to consider whether the content of those interviews was relevant to the question whether, at the time, Hafizi had had good reasons to believe the truthfulness of the statements in his article-which, in turn, is central to the issue of the existence of a criminal defamatory intent. The court's exclusion of this evidence was also inconsistent with Albanian criminal procedure, which authorizes the introduction as evidence of relevant "documentation that represents facts, persons or objects through photography, video recording, audio recording or any other means."132

Having declared the videotape inadmissible, the judge also declined a request by Patozi's counsel to hear the testimony of the ATN1 team and other reporters who had been investigating the incident together with Hafizi. The request was denied on the ground that only new evidence can be introduced during the concluding session of the trial. While the testimony offered by Patozi was in fact new, the judge inexplicably held that it had already been offered and declared inadmissible.133 In view of the court's earlier remarks regarding the difference between videotaped and live testimony, such reasoning is startlingly inconsistent. This probably occurred later to the judge himself, who found different arguments to justify his decision in the written judgment: he wrote that Patozi failed to produce the exact addresses of the requested witnesses, and that, in any event, the latter would have nothing relevant to say because Hafizi had not quoted any of them in the article. Such reasons are even less convincing than those given in respect of the videotape. The repeated refusals of the judge to admit evidence potentially favorable to Hafizi, coupled with the inconsistent grounds he invoked for these decisions, raise serious questions about the impartiality of the trial.

In view of the above considerations, the court's shifting of the entire burden of proof to the defendant, and the failure of Hafizi's court-appointed counsel to contact his client, both the criminal and civil sanctions against Hafizi are unjustified. Irrespective of whether Kryemadhi had anything to do with the quarry, the case record raises more than a few reasonable doubts as to whether Hafizi "intentionally disseminated knowingly false" allegations against her.

It is not clear from the court of appeals' joint judgment whether Hafizi's court-appointed lawyer appealed the district court ruling. No appeal was filed on his behalf with the High Court.

Case of Monika Kryemadhi v. Shemsi Peposhi
Kryemadhi brought civil and criminal defamation charges against Shemsi Peposhi for the following passage in an article he published in RD, three days after Hafizi's piece:

Kryemadhi ... must publicly respond to the accusations against her, starting with the railway coaches, the people she surrounds herself with, the two victims in Zall-Dajt, the amount of money spent for the renovation to her taste of [a government residence] in Durrës, and several privatization deals also in Durrës.

The accusations are very concrete and public ... [that she] abuses money, arranges illegal privatizations in favor of her relatives, that her relatives violate the law by abusing the name of the prime ministerial couple, [and] she has been accused as the manager of a [stone quarry] where two citizens lost their lives, and this is a crime.134

The district court judge concluded, without any further discussion, that Peposhi, like the other two defendants, "failed to prove [the truthfulness of] what he wrote, which clearly indicates that the allegations he wrote were not true [and] were published with the sole purpose to harm the honor and dignity of the accuser."135 Thus the judge improperly reversed the burden of proof in the case and neglected the complete lack of any evidence on the record regarding Peposhi's supposedly malicious intent. Moreover, the trial judge failed to weigh several elements that distinguish Peposhi's case from the other two brought by Kryemadhi.

Peposhi's piece was essentially a public challenge to Kryemadhi to respond to accusations that had been previously made by other reporters within and outside the RD. In that and other respects, Peposhi's case is similar to the case of a radio journalist in Luxembourg who was sanctioned by the domestic courts there for quoting parts from an article, written by another journalist, that were deemed defamatory of forest wardens and engineers.136 The relevant part of the quote included the following statement by an unnamed "authoritative source from the [forestry] industry": "I know of only one person [among all of Luxembourg's forest wardens] who is incorruptible."137 The Luxembourg courts held Thoma, the radio journalist, liable under civil defamation laws for failing to "formally distance himself" from the statements of the print journalist.

Acting upon Thoma's complaint, the European Court of Human Rights held that Luxembourg had violated his freedom of expression under article 10 of the Convention. The court started the analysis by underscoring the weight that it attached to the fact that Thoma's broadcast was contributing to an important public debate:

[T]he topic raised in the [radio] programme was being widely debated in the Luxembourg media and concerned a problem of general interest, a sphere in which restrictions on freedom of expression are to be strictly construed. The Court must, accordingly, exercise caution when, as in the instant case, the measures taken or penalties imposed by the national authority are such as to dissuade the press from taking part in the discussion of matters of public interest ....138

The European Court referred then to a principle it established in the Jersild case:

[P]unishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.139

By applying these general standards to the circumstances of Thoma's case, the court concluded that the Luxembourg authorities had failed to produce such "particularly strong reasons." In particular, the court held that a "general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation was not reconcilable with the press's role of providing information on current events, opinions and ideas." The court considered it sufficient that Thoma had properly attributed the statement to the original author, even though he did not formally distance himself from its substance.140

The European Court's Thoma holding is relevant and applicable to Peposhi's case. Like Thoma's broadcast, Peposhi's request was made in the background of a vivid public debate about Albania's widespread official corruption, and it addressed allegations made against Kryemadhi as the prime minister's spouse and a high-profile politician in her own right. As Peposhi noted in his appeal brief to the Albanian High Court, "it is the most normal thing for a journalist to demand from a public person of his country to respond to allegations the press has made against [that person]."141 In contrast to the Thoma case, Peposhi did not explicitly quote and attribute the allegations to which he referred, but the reference was implicit, and, in view of the broad publicity that the original allegations had received, the original source of the allegations Peposhi referenced was clear.

The circumstances of Peposhi's case included one additional element that the court should have considered in Peposhi's favor. Peposhi published his challenge to Kryemadhi to respond to "concrete allegations," following a strongly worded statement from Kryemadhi in response to RD's allegations about the quarry affair. Kryemadhi's statement referred to RD as the "town crier of Sali Berisha [head of the opposition Democratic Party] ... who fabricates and disseminates most monstrous lies against [her]." Her statement also attacked Berisha personally, calling him, among other things, a "psychopath," "degenerate," "evildoer," "fascist," and "addicted criminal." The statement, which Kryemadhi read on public television, concluded with her decision to sue RD for defamation and to use the judgment money, "once the court determines the scandalous falsity" of the accusations, "to buy a bag of pills for the mentally sick Sali Berisha."

The European Court has held that the threshold of tolerance toward journalistic commentary must be proportionally higher if the press is reacting to inflammatory or provocative statements made by a politician or other public figure. Thus, in the Oberschlick case, the leader of the Austrian Liberal Party advocated that the family allowances paid to Austrian women should be raised to encourage them not to seek abortions, while allowances paid to immigrant mothers should be reduced by 50 percent. In response, Oberschlick accused the politician of inciting national hatred and trying to advance National Socialist policies. The European Court, recognizing that the journalist's allegations were grave and provocative, held nevertheless that "[a] politician who expresses himself in such terms exposes himself to a strong reaction on the part of journalists and the public."142

The German Federal Constitutional Court adopted a similar reasoning in the Schmid-Spiegel case, in which an atypical plaintiff, Der Spiegel magazine, accused a prominent judge of defamation. The judge had reacted to an article that attacked his integrity and qualifications by characterizing Der Spiegel as the political equivalent of pornography. The German court ruled that the judge's derogatory statements were a legitimate counter-attack.143

In view of these considerations, the district court's findings that Peposhi was guilty of criminal and civil defamation both appear unjustified. As in the other cases discussed above, the civil damage award of 500,000 lekë ($3,570) was also extreme.

Case of Skënder Gjinushi v. Pandi Gjata
In March 2000 the daily Koha Jonë published a full-page interview with Dhori Kule, a former secretary general of the Albanian Social-Democratic Party (SDP).144 Both the title of the interview ("Gjinushi, This Dangerous Mafioso in Politics") and the deck ("All SDP Leaders and MPs Have Appointed Family Members to Embassies") appeared also as main headlines on the daily's front page. Kule, who claimed in the interview to have been unjustly removed from his position as secretary general, accused the SDP's top leadership and cabinet members of nepotism, corruption, violation of party bylaws, and byzantine purges of dissenters within the party. Kule was particularly critical of Skënder Gjinushi, the SDP chair and speaker of parliament at the time. He accused Gjinushi, among other things, of proposing ministers and making important decisions without consulting the party, abolishing the position of secretary general in order to get rid of Kule, and supporting allegedly corrupted SDP ministers.

Shortly after the publication of the interview, Gjinushi brought section 240 charges for libel related to his public function against Pandi Gjata, the Koha Jonë reporter who interviewed Kule. Human Rights Watch was unable to obtain access to Gjinushi's complaint.145 However, the court judgment and the fact that Gjinushi took no action against Kule suggest that Gjinushi's complaint focused on the choice of the title, rather than the text of the interview itself.

According to Gjata, who formerly covered court cases for his newspaper, the office of the Tirana public prosecutor investigated the case "with unusual diligence and intensity." The case prosecutor summoned Gjata, over a period of three months, about a dozen times for interrogations that lasted between thirty minutes and one hour each. Although he told prosecutors that the title of the interview had been chosen by Koha Jonë's editor-in-chief and that he had had no input in that decision, they pressured him throughout the investigation to confess to intentional libel against Gjinushi. 146

A judge of the Tirana District Court found Gjata guilty of official libel and sentenced him to pay a 20,000-lekë ($140) criminal fine. The single-page judgment reasoned that "the [headline] is not consistent with the interview" and that "every departure from the interview ... is a violation of journalistic ethics." The district judge suggested that, instead, the newspaper could have referred to the piece as "`Interview with Dhori Kule' or something like that." 147

The district judge's reasoning is seriously flawed under Albanian and international law. As already noted, the central element of criminal libel under the ACC is the dissemination of false, derogatory statements. The Gjata judgment failed even to identify the supposed falsities, apparently to be found in the headline, for which the defendant was held liable. Indeed, the word "false" or any equivalent term does not appear at all in the judgment.

By the same token, the district court failed to substantiate another key element of criminal libel under Albanian law: that a libelous statement be "concrete."148 The distinction between statements that are concrete and non-concrete is similar to the distinction between opinions and statements of fact made by the European Court. The court has consistently held that it is impossible for a journalist to prove the truth of an opinion or value judgment, and to require him to do so is "itself an infringement on freedom of expression."149 The court has carved out a limited exception to that general rule to the extent that an opinion is based on, or suggests that it is based on, factual allegations.150

The Gjata court did not discuss the nature of the impugned headline and did not determine whether it was an opinion based on false statements of fact. Indeed, the court did not require Gjinushi to prove the falsity of any allegations in the interview or headline, including any facts that could have been construed as the basis of the headline.

Considered in context, the headline describing Gjinushi as a "dangerous mafioso in politics" can hardly be interpreted as implying that Gjinushi was involved in any mafia-style or other criminal activities. The context of the headline and the interview suggest that the word mafioz was used, as it is often used in Albanian, to denote some sort of Machiavellian attitude in political or social life. While it can still be offensive and derogatory even in that context, it is taken as figurative speech rather than literally. Koha Jonë's editor-in-chief at the time, Nikollë Lesi, who formally assumed full responsibility for the formulation of the headline, asserted that it was chosen because it best represented, in his opinion, "the gist of Mr. Kule's interview."151 Under the circumstances of the case, the district court could have regarded the strongly-worded headline as falling nevertheless within the protected sphere of Lesi's editorial discretion; there is no indication in the court judgment that the court even considered this possibility.

Which brings us to the issue of Gjata's personal liability. The district judge held that Lesi's complete assumption of responsibility for the selection of the supposedly defamatory headline did not exempt Gjata from liability.152 On the contrary, the judge argued, "this assertion ... strengthens the evidence on Gjata's guilt by indicating that he has lied in the name of other persons, without experiencing himself a specific event or representing ... what he has learned by others, always indicating the source [of such information]." Such a conclusion might have had something to do with the fact that Lesi, who was also a member of parliament at the time, could not be indicted unless parliament first lifted his parliamentary immunity.

The district court decision was quashed, at Gjata's request, by the Tirana Court of Appeals, which remanded the case for retrial by another judge of the Tirana District Court.153 The Court of Appeals instructed the trial judge to consider the relevance of Lesi's affidavit.154

Chilling Effects of Defamation Laws and Judicial Decisions
This section reviewed some of the most prominent defamation trials involving Albanian media professionals in recent times. Similar actions against journalists, which may not receive the same level of publicity, are brought regularly by government officials at different levels of the central and local administrations. The flaws and violations documented here provide a representative picture of the Albanian judiciary's failure to guarantee media freedoms. The impact of such failures goes well beyond the work and freedom of the individual journalists sanctioned in specific cases. While obviously serious, their burden is only the visible tip of the iceberg: unjust defamation trials "chill" the entire media environment by fostering self-censorship and widespread uncertainty about the limits of legitimate criticism. By shrinking the sphere of protected speech, the Albanian judiciary's handling of such cases undermines democratic debate and good governance in general.

The existence of criminal libel, which carries a maximum punishment of two years in prison, is particularly threatening to a free press. While Albanian courts have been more likely to impose penal fines than prison sentences in the recent past, the latter are far from falling into disuse. In October 2000, Ndrekë Gjini of Rilindja Demokratike was sentenced to two months of imprisonment for libel against a Ministry of Interior official; the sentence was suspended (converted to probation for eighteen months) on the condition that he would not commit an equally serious or more serious offense during that period.155

Paradoxically, Albanian criminal law makes criticism of public officials more risky than criticism of ordinary citizens. In defamation cases involving public officials, journalists face a full-fledged criminal investigation carried out by the public prosecutor's office. The two journalists that went through such an investigation in the cases discussed above related to Human Rights Watch that the interrogations took a heavy psychological toll and had a profoundly disruptive effect on their professional lives.156 The investigations and the trials also caused their respective newspapers to stop pursuing several high-risk inquiries.

Money judgments, both penal fines and civil awards, are no less effective tools for promoting self-censorship. Unpaid criminal fines are usually converted into prison time, and unpaid damages can be forcefully recovered. Convicted journalists rarely pay fines or damages, both because they cannot afford to pay the high judgments and wish to protest what they perceive, often rightly so, as free speech violations. In reality conversion orders (into prison time) usually go unenforced and civil awards against the press unrecovered. However, a recent judicial trend toward increasingly higher damages in civil defamation trials raises fears that this may change in the future. In any event, the more serious concern is that such judgments, which can be enforced at any time, hang like a Damoclean sword over the head of the opposition and critical-minded press.157

Two of the journalists convicted in the Kryemadhi cases, Redin Hafizi and Shemsi Peposhi, left Albania indefinitely during or after their trials. Both of them told Human Rights Watch that the libel indictment was among the key circumstances that caused them to leave. "I have lived through some very difficult times in the 1990s," Peposhi said, "but the trial was the final drop."158

44 Some important tenets of the European Court's case law in the area of defamation are the following: politicians and government officials enjoy more limited rights to reputation vis-à-vis press criticism than ordinary people; opinions and value judgments are generally granted greater protection than statements of fact (in that no one can be required to prove the truth of an opinion); statements on matters of public interest are entitled to special protection; and freedom of expression covers not only content or subject matter, but also the forms and methods in which individuals chose to express themselves. See below, section on Freedom of Expression in International Law and Practice. The judgments reviewed in this report did not seem to take these and other relevant principles into account in any fashion.

45 Albania has ratified both the International Covenant (on October 4, 1991) and the European Convention (on October 2, 1996); the Albanian constitution makes the European Convention part of Albanian constitutional law. In view of the European Convention's special relevance in the Albanian domestic legal system, the jurisprudence of the European Court of Human Rights will be covered in more detail in this section. The Strasbourg-based European Court has final authority over the interpretation and application of the European Convention.

46 The Sunday Times v. the United Kingdom, Judgment of April 26, 1979, Series A no. 30, para. 65.

47 Handyside v. the United Kingdom, Judgment of December 7, 1976, Series A no. 24, paras. 48-50.

48 Castells v. Spain, Judgment of April 23, 1992, Series A no. 236, para. 43. (Emphasis added.)

49 Oberschlick v. Austria, Judgment of May 23, 1991, Series A no. 204, para. 59. See also, Lingens v. Austria, Judgment of July 8, 1986, Series A no. 103.

50 Inter-American Commission on Human Rights, Annual Report 1994, Report on the Compatibility of "Desacato" Laws with the American Convention on Human Rights, OEA/Ser L/V/II.88, Doc. 9 Rev (1995). Desacato laws (also known as contempt laws) were used in a number of Latin American countries to punish speech deemed to be insulting or threatening to public officials. The Commission concluded that such laws serve no legitimate aim and are inconsistent with free expression in a democratic society.

51 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Principle 37. The Siracusa Principles were adopted in a broad meeting of experts convened in 1984 by the United Nations Center for Human Rights and other organizations.

52 Lingens case, note 49 above, at para. 46.

53 Oberschlick case, note 49 above, at para 63.

54 See Thorgeirson v. Iceland, Judgment of June 25, 1992, Series A no. 239.

55 Handyside case, note 47 above, at para. 49.

56 A 1999 statute implements the general clauses of article 23 by providing for a general right to access official documents and by establishing standards and procedures for its enforcement. See Law 8503, note 41 above.

57 Constitution, art. 17.

58 In some respects, such as the prohibition on prior censorship, the Albanian Constitution does seem to grant greater protections than the European Convention, which contains no such express prohibition.

59 Constitution, art. 122. Article 122 provides: "1. Any ratified international agreement constitutes part of the internal legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. . . . 2. An international agreement ratified by law has priority over the laws of the country that are incompatible with it."

60 Constitution, art. 145.2.

61 Constitution, art. 131(f).

62 The Albanian Constitutional Court has not developed anything akin to the doctrine of "substantive due process" in U.S. constitutional law. So far Albanian due process is strictly procedural.

63 ACC, sec. 119 (fyerja in Albanian), sec. 120 (shpifja in Albanian), sec. 239 (fyerja për shkak të detyrës in Albanian), sec. 240 (shpifja për shkak të detyrës in Albanian), and sec. 241 (shpifja ndaj Presidentit të Republikës in Albanian), respectively. As amended by Law no. 8733 of January 24, 2001 [hereinafter Law 8733]. Both fyerja and shpifja are terms of art in Albanian, with a defined legal meaning (see below); the terms "insult" and "libel" are used as the closest English equivalents.

64 The Albanian word translated as "publicly" is botërisht, literally "to the entire world." The statutory range for fines applicable to misdemeanors is from 50,000 to five million lekë (U.S. $360-36,000). ACC, sec. 34, as amended by Law 8733. The courts enjoy wide discretion to set the level of fines in each case.

65 Ismet Elezi, Criminal Law, Special Part, Vol. I (Tirana: Luarasi Publishing House, 1995), pp. 119-120.

66 Ibid, p. 121. Professor Elezi argues that dissemination of defamatory statements that are true can, under certain circumstances, be considered an insult, but not libel.

67 Elezi, Criminal Law, Vol. II, pp. 54-57.

68 The stricter sanctions were part of the January 2001 amendments to the ACC. See Law 8733, sec. 56.

69 Albanian Code of Criminal Procedure (ACCP), sec. 284.

70 ACCP, sec. 59.

71 See Report on Desacato Laws, note 50 above.

72 Albanian Civil Code, sec. 625(a) (hereinafter Civil Code).

73 Civil Code, sec. 608.

74 The Albanian Constitution includes a similar standard. See note 57 above and accompanying text.

75 The Sunday Times case, note 46 above, at para. 63.

76 Fadil Molla, "Petro Koçi and Gjolek Malaj begin construction in Tirana," Rilindja Demokratike, September 10, 1999.

77 Although there is, of course, nothing wrong with owning a gas station, gas stations were a very lucrative business in Albania during the 1990s, and obtaining licenses for operating gas stations was widely viewed as something that involved widespread favoritism or corruption.

78 Judgment of May 26, 2000 (no. 361), Tirana District Court (unpublished).

79 See note 55 above and accompanying text.

80 Punto y Hora, Spanish Constitutional Tribunal 20/90.

81 Judgment of July 3, 2000 (no. 306), Tirana Court of Appeals (unpublished).

82 Judgment of October 6, 2000 (no. 338), High Court (unpublished).

83 Human Rights Watch interview with Astrit Patozi, Tirana, November 26, 2001.

84 Judgment of April 4, 2001, Tirana District Court (unpublished). Although the administration of the Tirana District Court generally accommodated Human Rights Watch's investigation, its staff were unable or unwilling to give Human Rights Watch access to court records and judgments in a number of cases, including this one.

85 The 30,000-lekë fine was less than one-sixth of the statutory maximum applicable to misdemeanors (200,000 lekë) that was available to the criminal trial judge at the time (before the January 2001 amendments to the ACC). See note 64 above.

86 Artan Hoxha, "Legisi and Dokle smugglers," Gazeta Shqiptare, August 11, 1999. The main function of the police intelligence service (Shërbimi Informativ i Rendit (SHIR) in Albanian) is to investigate corruption, criminal ties, and other wrongdoing within the ranks of the Albanian police force.

87 The phrase used in Albanian is fijet e kontrabandës, literally "threads of smuggling."

88 Human Rights Watch interview with Artan Hoxha, Tirana, November 5, 2001.

89 Memorandum on facts and evidence regarding criminal proceeding no. 1438 (on file with Tirana District Court).

90 Decision to terminate criminal proceeding no. 1438 of October 25, 1999 (on file with Tirana District Court).

91 Order of December 15, 1999 (on file with Tirana District Court).

92 ACCP, sec. 329.1.

93 As a general rule, the decisions of a prosecutor can be changed or quashed by his or her superior in the hierarchy of the prosecutorial system. ACCP, sec. 24.5. It is not clear, however, whether this general rule applies to decisions of a case prosecutor to terminate criminal proceedings, and, if yes, whether there are any time limits for so doing.

94 Transcripts of the testimonies are part of the case file.

95 Judgment of May 31, 2000 (no. 375), Tirana District Court (unpublished).

96 In line with the defendant's right to be presumed innocent, a general principle of Albanian criminal law establishes that "every doubt regarding the charges shall be assessed in favor of the defendant." ACCP, sec. 4.

97 Anila Prifti, a reporter with Koha Jonë who was also present at the same meeting, confirmed Hoxha's participation therein. Prifti told Human Rights Watch that Kasa gave no specific names to the reporters, but did relate that he had alerted the minister of certain politicians' possible implication in smuggling activities. Human Rights Watch interview with Anila Prifti, Tirana, November 17, 2001.

98 Article 31 of the Albanian Constitution guarantees to every defendant in a criminal trial "the right ... to have sufficient time and facilities to prepare his defense ... [and] to be defended by himself or with the assistance of a legal defender chosen by him."

99 Judgment 375/00, note 95 above.

100 Judgment of July 19, 2000 (no. 347), Tirana Court of Appeals (unpublished).

101 Human Rights Watch interview with Artan Hoxha, note 88 above. At the time a criminal fine that was not paid within the legal deadline was converted into prison time, at the rate of one day per 1,000 lekë. (Law 8733 changed the rate to one day for 5,000 lekë.)

102 In Albania, joinder of criminal cases is possible under certain defined circumstances. See ACCP, secs. 79 and 92. However, none of those appear to apply to the charges brought by Kryemadhi, and the district court judgment is completely silent on the joinder issue.

103 "Monika, six thousand dollars a month only at the Rogner", Rilindja Demokratike, July 21, 2000.

104 Judgment of November 1, 2000 (no. 687), Tirana District Court (unpublished) (hereinafter Judgment 687/00).

105 Constitution, art. 30; ACCP, sec. 4. See also note 96 above.

106 Article 6.2 of the ECHR provides that "[e]veryone charged with a criminal offense shall be presumed innocent until proved guilty according to law."

107 Barbera, Messegue and Jabardo v. Spain, Judgment of December 6, 1988, Series A no. 146, para. 33.

108 The ACCP provides limited protection for "professional journalists" who appear as witnesses in criminal trials: journalists are entitled not to disclose the "names of persons from whom they have received information in the course of exercising their profession." However, if the information received by such persons "is indispensable to prove a criminal offense and the truthfulness of such information can only be established through the identification of the source," the court may order the journalist to disclose the source's identity. ACCP, sec. 159.3.

109 Goodwin v. the United Kingdom, Judgment of March 27, 1996, Reports 1996-II, Vol. 7, para. 40.

110 See, for example, Prager and Oberschlick v. Austria, Judgment of April 26, 1995, Series A no. 313, para. 38.

111 Oberschlick case, note 49 above, at para. 57. This case involved the publication by an Austrian journalist of the text of a criminal denunciation against a politician, who was accused by a group of citizens of violating an Austrian law that prohibited National Socialist activities.

112 Judgment 687/00, note 104 above.

113 The United States Supreme Court, for example, held in a landmark decision that public officials can recover civil damages for defamation related to their official conduct only if they prove that (1) a defamatory statement is false and (2) was made with "knowledge that [it] was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254 (1964), at 279-80. By virtue of this holding, the American court shifted the burden of proof from the defendant to the plaintiff, and set a high threshold of liability even for publication of untrue or inaccurate facts. Likewise, in Germany, a civil defamation plaintiff bears the burden of proving both the falsity of factual statements, and the willful or negligent failure of the press defendant to check the facts properly. In Austria, the burden of proving that statements of fact are untrue is also on the civil plaintiff; but even if the plaintiff meets that burden, press defendants can still prevail if they prove that the inaccurate statements were made in good faith and touch upon an issue of public interest. Similar defenses of "good faith," "due diligence" or "reasonableness" in checking facts are available to the press in many other countries. See Comparative Analysis of Press Law in European and Other Democracies, in Article 19: Press Law and Practice (United Kingdom, 1993), pp. 266-70.

114 Judgment of December 19, 2000 (no. 554), Tirana Court of Appeals (hereinafter Judgment 554/00). This holding is inconsistent with the decision of the Tirana Court of Appeals in the Koçi v. Patozi case, which, only five months earlier, had upheld the interpretation of the district court judge that the accuser must bear the burden of proof in a criminal libel case.

115 Judgment of May 8, 2001 (no. 240), High Court (unpublished) (hereinafter Judgment 240/01).

116 A court of appeals decision can only be appealed to the Albanian High Court on limited, defined grounds. The most important of those grounds is "the failure [of the lower court] to comply with, or apply correctly, the penal law or other legal norms that must be taken into account in applying the penal law." ACCP, sec. 432. The High Court panel assigned to hear an appeal decides preliminarily whether the appeal is "admissible"-that is, whether the grounds invoked fall under one of the categories set forth in section 432-in a closed-door session. ACCP, sec. 433. The admissibility panel has no discretion as to whether to hear an appeal that clearly meets the criteria of section 432. Moreover, an admissibility session cannot address the merits of the case.

117 Human Rights Watch interviews with practicing attorneys and legal scholars, Tirana, November 2001.

118 Constitution, article 142.1.

119 Had the High Court panel held the appeal admissible, the defendant's counsel would have been able to address the panel in an adversarial oral hearing. ACCP, sec. 437.

120 Delcourt v. Belgium, Judgment of January 17, 1970, Series A no. 11, para. 25.

121 See P. van Dijk, G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (The Hague: Kluwer Law International, 1998), p. 423.

122 Constitution, article 141.2. The five-judge panel could have triggered the unification procedure by referring the issue to the High Court en banc.

123 See note 62 above and accompanying text.

124 Redin Hafizi, "Two Deaths in Property of Meta Couple," Rilindja Demokratike, August 5, 2000.

125 The Albanian Constitution authorizes trials in absentia, by way of exception, against "persons who evade justice." Constitution, article 33.2.

126 Human Rights Watch interview with Redin Hafizi, note 40 above. Hafizi claimed also that he was not "evading justice," but could not return to Albania because of credible life threats that caused him to leave Albania in the first place.

127 Judgment 687/00, note 104 above.

128 Mancaku was initially sued by Kryemadhi as a co-defendant in the case. Kryemadhi dropped the charges against him following his testimony in court.

129 In an interview with Human Rights Watch, Hafizi confirmed Patozi's account that RD received the letter via fax. Hafizi said the letter was sent from the offices of a humanitarian organization in the Zall-Dajt area. No one from that organization was summoned to testify during the trial.

130 Trial transcript (on file with Tirana District Court). The three interviewees were Adem Mancaku, Selman Dajti (Bajram Mancaku's brother in law), and a villager unrelated to the victims of the mine accident. The unrelated villager stated on camera that Kryemadhi was widely known to the residents as the "head" of the quarry business. Human Rights Watch obtained a copy of the taped interviews, which were taken by an ATN1 team.

131 Human Rights Watch interview with Redin Hafizi, note 40 above. The voice identified by Hafizi as Dajti's appeared to Human Rights Watch's researcher to be the same as that attributed to Dajti on the ATN1 video.

132 ACCP, sec. 191.

133 Transcript of November 1, 2000 hearing (on file with Tirana District Court).

134 Shemsi Peposhi, "Kryemadhi Chooses Street Language As Escape Hatch," Rilindja Demokratike, August 8, 2000. The reference to "railway coaches" is about allegations, published by RD and other dailies in December 1999, of abuses in the purchasing of Austrian coaches for the Albanian railways.

135 Judgment 687/00, note 104 above.

136 See Thoma v. Luxembourg, Judgment of March 29, 2001, European Court of Human Rights (unpublished, available at http://www.echr.coe.int/Eng/Judgments.htm).

137 Ibid., at para. 10. Although neither Thoma, nor the original source, accused any specific individual by name, the Luxembourg courts held that, due to the absolute nature of the statement and the small size of the country, "those against whom the accusation was made are sufficiently identifiable."

138 Ibid, at para. 58.

139 Jersild v. Denmark, Judgment of September 23, 1994, Series A no. 298, para. 35. Jersild, a television reporter, was punished by the Danish courts for airing interviews with several extremist youths who made racist remarks against blacks and immigrants.

140 Thoma case, para. 64.

141 Shemsi Peposhi, Appeal to the High Court (on file with Human Rights Watch).

142 Oberschlick case, note 49 above, at para. 61.

143 12 Federal Constitutional Court 113 (1961).

144 "Gjinushi, This Dangerous Mafioso in Politics," Koha Jonë, March 11, 2000.

145 The administration of the Tirana District Court told Human Rights Watch that they could not locate the case file, which, they said, could have been forwarded to the High Court. As a result, Human Rights Watch did not have access to the full record of the case, including Gjinushi's complaint and the transcript of the hearings.

146 Human Rights Watch interview with Pandi Gjata, Tirana, November 1, 2001.

147 Judgment of December 18, 2000 (no. 805), Tirana District Court (unpublished).

148 See note 66 above and accompanying text.

149 Oberschlick case, note 49 above, at para. 63.

150 See, for instance, the Thorgeirson case, note 54 above, pp. 27-28. The issue in this case was whether a journalist who had published articles about police brutality could be convicted for calling unnamed police officers "brutes in uniform."

151 "Journalist Gjata in Front of Gjinushi's Shackles," Koha Jonë, December 6, 2000. Under this headline, the newspaper published the text of an affidavit that Lesi addressed to the district judge presiding over Gjata's case.

152 The relevant part of Lesi' affidavit stated: "The title of Dhori Kule's interview ... was decided by myself in my capacity as director of Koha Jonë .... Journalist Pandi Gjata has not [contributed] a single letter to the said title."

153 Judgment of April 9, 2001 (no. 157), Tirana Court of Appeals (unpublished).

154 It appears that Gjinushi subsequently took the case to the High Court, which sent it back to the Tirana Court of Appeals for reconsideration. The Court of Appeals ultimately declared Gjata not guilty. Human Rights Watch telephone interview with Pandi Gjata, New York, May 9, 2002. Human Rights Watch was unable to receive copies of these judgments by the time this report went to press.

155 Judgment of October 19, 2000 (no. 644), Tirana District Court.

156 See above, Human Rights Watch interviews with Artan Hoxha and Pandi Gjata.

157 Albanian journalists and their associations are generally well aware of such threats. See, for example, Albanian Free Media Forum, "Prime Minister Meta Is Orchestrating A Campaign Against the Independent Press," Tirana, November 6, 2000 (on file with Human Rights Watch) (statement by representatives of seven media outlets protesting, among other things, some of the defamation judgments discussed in this report).

158 Human Rights Watch telephone interview with Shemsi Peposhi, New York, December 4, 2001.

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