Significant delays in the investigations into the death of 26 and the injury of 300 people from an ammunition explosion! Violation of the procedural part of the right to life
JUDGMENT
Durdaj and others v. Albania 07.11.2023 (app. no. 63543/09, 46707/13, 46714/13 and 12720/14)
SUMMARY
The case concerned an explosion, on 15 March 2008, at a facility in Gërdec set up by the State
authorities for dismantling decommissioned and obsolete weapons, machinery and equipment of
the armed forces. In total, 26 people died (including the seven-year-old son of two of the applicants
in this case) and over 300 were injured (including 15 applicants).
The Court found that the applicants had been deprived of the possibility to participate effectively in
the criminal trial. Moreover, the criminal proceedings against the former Minister of Defence, F.M.,
for abuse of office are still pending, thus leaving the applicants without a final conclusion as to his
responsibility more than 14 years after the explosion. The national prosecuting authorities had
provided no convincing explanations for their failure to resume the investigation immediately after
F.M.’s re-election as MP, thus raising serious questions as to their willingness and diligence to pursue
the matter and creating a potential for impunity. While the Court was not taking a stance as to his
criminal responsibility, it considered that the applicants as well as the general public had the right to
know not only the circumstances in which the Gerdec tragedy had taken place, but also the exact
role the former Minister of Defence had played in it.
PROVISION
Article 2
PRINCIPAL FACTS
The applicants are 17 Albanian nationals who were born between 1951 and 2002 and live in Gërdec,
Tirana, Berat and Vore (all in Albania).
In 2007, the Albanian authorities embarked on the process of the decommissioning and destruction
of a stockpile of an estimated 185,000 tonnes of ammunition stored in some 1,300 depots across the
country. The armed forces were given responsibility for securing and protecting the
decommissioning facilities, while the Military Export-Import Company (“MEICO”, a company
established by government decision under the auspices of the Ministry of Defence) was entrusted
with entering into contracts and with general oversight over the decommissioning activity.
In April 2007 an area of land under the administration of the Ministry of Defence located in Gërdec
(Vore) was made available and MEICO was entrusted with leasing it to a US-incorporated company,
Southern Ammunition Company (“SAC”), for the decommissioning process. Contracts were signed
for SAC to provide the necessary machinery and to manage and control the dismantling and
decommissioning of the ammunition, subject to conditions and technical safety measures laid down in the relevant Albanian legislation. In turn, SAC subcontracted the work to Albademil Ltd., a limited liability company incorporated in Albania.
On 15 March 2008, a massive explosion occurred at the Gërdec facility. The explosion resulted in the
deaths of 26 people, and injuries to around 300. Two of the applicants (applications nos. 63543/09
and 12720/14) are the parents of Erison Durdaj, aged seven at the time, who with his cousin,
Roxhens Durdaj (the first applicant in application no. 46714/13), was dropping off lunch for
Roxhens’s mother who worked at the facility. Erison Durdaj was grievously injured in the explosion
and died as a result on 3 April 2008. Roxhens Durdaj, then 11, sustained serious burns. The
13 applicants in application no. 46707/13 and the second applicant in application no. 46714/13
(Alketa Hazizaj), were working at the facility and were grievously wounded in the explosion.
Three expert examinations were carried out in the context of the ensuing criminal investigation: the
first by the International Response Team (IRT) of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) the primary US federal unit of investigation of explosives incidents and
enforcement of relevant laws and regulations and which has national and international investigating
authority ; the second was conducted by the Prosecutor General’s Office; and the third by the
military. The three reports established that neither the choice of the site as a weaponsdecommissioning facility, nor its operation had complied with licencing and safety rules.
The work processes at the Gërdec facility had been chaotic and the decommissioning activities had
been carried out without the required licences; the employees had had no appropriate training; the
activities had been carried out in violation of military technical regulations; and the setting up of the
Gërdec facility and its operation had not been monitored or supervised by the responsible State
authorities.
The investigation as a whole resulted in the filing of indictments against 29 persons, including a
former Minister of Defence, F.M. who, at the time of the explosion, was a member of parliament
(MP), but whose immunity was lifted in June 2008, the head of the MEICO, the manager and site
manager of Albademil Ltd, the Chief of the General Staff of the armed forces and a number of
Ministry of Defence employees and military personnel, as well as Albademil Ltd itself. However,
following the re-election of F.M. as an MP, which gave him renewed parliamentary immunity, the
prosecution did not seek fresh authorisation from Parliament to waive that immunity and the
Supreme Court discontinued pursuit of the criminal proceedings against him on 14 September 2009.
During the proceedings, the applicants in applications nos. 63543/09 and 12720/14 lodged a civil
claim against some of the accused. On 22 May 2009 the Supreme Court severed their civil claim from
the criminal proceedings. One of the applicants complained to the Constitutional Court that the
disjoinder of the civil claim from the criminal proceedings had deprived her of any opportunity to
participate in the criminal proceedings and trial by, for example, cross-examining witnesses,
submitting additional documentation, commissioning expert reports and applying to have additional
witnesses interviewed, thereby violating the principle of the adversarial nature of judicial
proceedings. The Constitutional Court dismissed her complaint.
Twenty-four of the accused were found guilty of criminal offences such as violation of safety rules,
production and possession of arms and ammunition at work, abuse of duty and destruction of
property by negligence. The time they spent in prison ranged from six years and seven months to ten
years and 27 days.
Since 26 October 2012, parliamentary immunity has not been a bar to the institution or continuation
of a criminal investigation in respect of an MP. Although the applicants made several attempts to reinstitute criminal proceedings against F.M. for abuse of office, they were resumed only in 2021, after a nine-year gap in his prosecution. The criminal proceedings against him are still pending.
THE DECISION OF THE COURT…
Article 2
Procedural aspect (effective investigation/right to life)
The Court noted that the Prosecutor General’s Office had immediately started an investigation after
the explosion and had sought assistance from the ATF-IRT. Three expert reports had served as the
basis for the indictments and had been used as evidence in the trial against the accused. The Court
concluded that the investigation had been adequate as it had generally succeeded in establishing the
circumstances and relevant facts and had identified those responsible. Even though no-one had
been ultimately convicted of homicide, their convictions had all been related to the Gërdec incident,
to life-endangering acts and to the protection of the right to life within the meaning of Article 2.
With respect to the criminal proceedings, the Court took into account that the case had not involved
intentional killing, but grave negligence. While it was true that some of the sentences had been
subsequently reduced, the reductions in the initial sentences had not rendered them
disproportionately lenient. At the same time, it also noted that the Supreme Court had severed the
applicants’ civil claim from the criminal proceedings before the trial before the Tirana District Court
had even begun and that, once the trial started, the applicants had not been informed of any of the
steps taken, of any of the hearings and had not been invited to participate in the trial in any capacity.
Thus, in the course of the criminal proceedings, the applicants had not had any procedural rights.
The Court has already established that a State’s procedural obligation under Article 2 of the
Convention requires a criminal-law response, and that victims have to be given an opportunity to
participate effectively in the criminal proceedings, including at the trial stage, to the extent
necessary to safeguard their legitimate interests. This cannot be compensated for by the possibility
for the applicants to lodge a civil claim in separate civil proceedings, since those proceedings would
not examine the criminal responsibility of the accused.
Furthermore, the criminal proceedings against F.M. for abuse of office – plagued by significant
delays, inertia of the prosecuting authorities and many futile attempts of the applicants to bring him
to justice – are still pending. The applicants have thus been left without a final conclusion as to his
responsibility more than 14 years after the explosion. The national prosecuting authorities had provided no convincing explanations for their failure to resume the investigation immediately after F.M.’s re-election as MP, thus raising serious questions as to their willingness and diligence to pursue the matter and creating a potential for impunity. Although under Article 2, a State is not obliged to
prosecute the individuals whom a victim wishes to see held to account, the national courts should
not under any circumstances be prepared to allow life-endangering offences to go unpunished.
While the Court was not taking a stance as to F.M.’s criminal responsibility, it considered that, given
the evidence collected against F.M., the applicants as well as the general public had the right to
know not only the circumstances in which the loss of life and severe injuries had taken place, but
also the exact role the former Minister of Defence had played in the events.
The Court concluded that there had therefore been a violation of the procedural aspect of Article 2
of the Convention.
Substantive aspect (protection/right to life)
As regards the applicants’ complaint that the State authorities had failed to take adequate
operational and safety measures, the Court had to ascertain whether the award of damages might,
in principle, be regarded as satisfying the State’s obligation in respect of the substantive aspect of
Article 2.
Indeed, three of the applicants had lodged civil actions with the Tirana Administrative Court of First
Instance. In awarding them compensation, the Administrative Court found that the State authorities
had not taken adequate preventive measures to ensure that minimal safety standards were
observed at the Gërdec facility. It concluded that the hazardous activities at the facility had resulted
in the death of the son of two of the applicants and injuries to the others. In the Court’s view, these
findings amounted to an acknowledgment in substance of the State’s responsibility for the death of
Zamira Durdaj’s and Feruzan Durdaj’s son and the risk to Sabrije Picari’s life.
The Court found that, by not lodging an appeal, these applicants had tacitly accepted that they were
satisfied with the sums awarded and had therefore renounced further use of the national remedies.
Furthermore, the pecuniary and non-pecuniary damage awarded had not been lower than what the
Court has awarded under Article 41 of the Convention in comparable cases. It followed that they
could no longer claim to be victims of the violation claimed under this aspect of Article 2 of the
Convention.
The applicants who had not brought a civil claim against the State in respect of their substantive
complaint under Article 2 had not used all legal avenues available at national level and therefore had
not provided the national authorities with the opportunity to address (and thereby prevent or put
right) the Convention violation alleged against them. Accordingly, the Court rejected their complaint
under this aspect of Article 2 of the Convention.
Just satisfaction (Article 41)
The Court held that Albania was to pay 12,000 euros (EUR) jointly to Zamira Durdaj and
Feruzan Durdaj and EUR 10,000 each to the other applicants in respect of non-pecuniary damage,
and EUR 8,000 jointly to all the applicants in respect of costs and expenses.
Separate opinion
Judge Grozev expressed a concurring opinion. This opinion is annexed to the judgment.
