The Supreme turns the issue of Ismet Hysen into restoration, charged in the case of Ilir Tolaj, Bujar Bukoshi

Along with Hysen, Toylan and Bukoshi, Arbenita Pajaziti, Zenel Red, Hajrullah Feyza, Bekim Field, Alban Thaci, Basri Asllani, Nexhat Shabani and Imer Ajeti are charged with criminal acts related to abuse of office or official authority.

In the Supreme Court's act, provided by “Justice Vow”, the request of Ismet Hysen is said to be based.

With the adoption of a plea for protection of legitimacy has been annulled the act of the Court of Appeals of Kosovo on September 13, 2016, only as far as point 2 of the device related to point 2, and only in terms of defendants Ismet Hyseni, and the case in this section has been returned to the same court in restoration.

Defender of the defendants Ismet Hyseni, lawyer Skender Musa, on October 12th 2017, has been addressed at the request for protection of legitimacy, demanding that the Court of Appeals' act be annulled, since in the concrete case, the Constitution of Article 394 paragraph of the Kosovo Criminal Procedure Code (KPPK), by the second court, at the expense of protecting him, since the court's act of the first instance was annulled to Ilir Topikafi, and Pajbenazi, for whom Kosovo's special complaint has been filed, while the prosecution of the prosecution is not in question.

In the request of attorney Musa, the fact that in the second-instance court's act, at point II of the device is not specified that the trial is annulled as far as defendants Ilir Tolaj and Arbenita Pajaziti are in violation of the provision by Article 394 paragraph 1 of KPPK and also substantial violation of the penal procedure provisions from Article 384 paragraphs 1 12 KPPK, because design is contrary to the reasoning of the act.

The State Prosecutor's Office, in response to the request for the protection of legitimacy, has considered it true that it is not fully clear by the device of the rejected trial, that whether defendant Ismet Hyseni is involved or not in one of the charges which have been returned for retrial.

In response further, the Office of the Chief State Prosecutor considers the request to be rejected, since it is clear that we are dealing with a technical error by the Pristina Constitutional Court, which the defendant had invited for the review hearing on September 6, 2017, and that such an error cannot provide grounds for applying for an extraordinary legal means, so he had proposed that the request be filed as unacceptable or refused as unbashed.

“From the documents in the case, which were assessed by the Supreme Court, results in the defendant Ismet Hyseni, with the court's conviction in the first degree how it was filed earlier, and against this court's conviction of the first instance in his direction of Kosovo's Special Prosecution has not filed a complaint with the Court of Appeals of Kosovo, while for other defendants there is a exercised complaint, so that the legal act for the defendant, Ismet Hyseni, has taken the form of <18x>, in the indictment.

“From the letters of the case results that the Kosovo Court of Appeals by considering the Kosovo Special Prosecutor's complaint, the device on page 3 points II finds that the court's complaining act of first degree abuse of office or official authority by Article 339 and 3 related to November 20th and 23K.

While in the same plea act on page 8 allegations that Kosovo's Special Prosecution towards the same defendant in terms of point II has not filed complaints, as well as on page 13 of the same judicial act where it speaks of point 2 allegations that “are not reliable and are insufficient to prove the criminal responsibility of Ilir Tolaj and Arbenita Pajaziti, under the 2”, thus has never been considered the criminal responsibility of defendant Ismet Hysen, with the act of the Court of Appeals of Kosovo<2>, the indictment is said aside.

According to the trial, given these facts, the Supreme Court has found that with the act of the Court of Appeals of Kosovo 384 paragraphs .1 points 12 of the KPP have been violated, since the device is contrary to the reasoning of the court's bias and declarations, which presents substantial violations of criminal procedure provisions, as it is rightly claimed.

In addition, it is said that in reviewing the second-instance court should avoid alleged wrongdoing, precisely specifying the practice of judging against whom the indictment has been annulled and for which criminal acts, whether the annulment is related to criminal action under the 2nd court's first instance of the court's Ismet Hyseni.

The Supreme Court had restored the case to a first - degree court. At the first session held after the Supreme decision on September 6, 2017, EULEX prosecutor Damare Teriot had demanded that the hearing be postponed.

Prosecutor Teriot had stated that the reason for her request to postpone the session concerns the fact that EULEX is transferring the case to the Special Prosecutor of the Republic of Kosovo (PSRK).

On the other hand, prosecutor Teriot had said that she revised the indictment and adjusted it in view of previous rulings by the Supreme Court and Appeals Court.

Teriot had also stated that translation would take place and the subject would be handed over to local prosecutors.

The chairman of the court, Valon Kurtaj, had asked prosecutor Teriot to correct the prosecution act, given the rulings of the Court of Appeals and Supreme Court.

Kurtaj had also asked the prosecutor to determine who and what works will be the subject of the trial.

Under these circumstances, no date was set for the next session.

Since Kurtaj has been elected Director of the Academy of Justice, this case will be the competence of another judge. Prosecution claims.

By contrast, the indictment compiled by EULEX Special Prosecutor Maria Bamieh charges Ilir Tolaj, Arbenita Pajaziti, Ismet Hyseni, Zenel Red, Hajrullah Feyza, Bekim Field, Alban Thaci, Basri Aslan and Bujar Bukoshi, Nexhat Shabani, Imer Ajetti with the performance of the criminal work “abuse of official position or authority<x1.

According to the indictment, Ilir Tolaj, then permanent secretary to the Ministry of Health, Arbenita Pajaziti, and Ismet Hyseni as officials at the same minister, on a date between 26 September 2007 and October 1, 2007 have abused official duties, allowing a binding legal contract with the company “Jona Med” to expire without meeting the conditions.

Following the “Yona Med” indictment of the Ministry of Health, Kosovo's budget caused the loss of 1.5m euros.

All of this as a consequence of not knowing contractual obligations to the company “Jonah Med” and cutting the contract from Ilir Tolaj.

On the other hand, according to the accusation act, Tolaj is accused of misusing his official duty, telling the assessment commission who should be selected in two emergency tenders, guiding a tender to be given “Koslabor”, while the other “Exclusive Company”.

According to the indictment, Tolaj did not want to respect the Ministry of Health's existing contract, as he wanted to issue new contracts in his interest and for material benefits to those with whom he had financial ties or other ties.

Tolaj and Pajaziti are charged with asking Raymonda Hyseni to sign that she had participated in the tender assessment when she had not attended at all. One such thing is seen as enabling tender winners to gain material benefits.

The winners have received substatic contracts, where tender procedures for these contracts have not been in line with the Law on Public Procurement on January 15, 2004. Arbenita Pajaziti, under the indictment, has misused the official task, not declaring there is conflict of interest and not excluding himself from the awarding commission for tenders.

Tolaj, Pajaziti, Hyseni, Red, Fyza, and Bukoshi are charged with mishandling official duties by leading a campaign to damage the company “Johna Med”.

This action is accused of being made by making sure that “Jonah Med” does not receive any contracts from the Ministry of Health, sending inspectors to the company in question and asking to condemn it, by preparing an excessive number of criminal charges and civil lawsuits against the company “Jona Med”, and using their influence to ensure that the latter does not get an import license.

Ilir Tolaj and Bujar Bukoshi are accused of misusing their official duties in June 2010, when Tolaj was a personal adviser to Bujar Bukoshi, according to the indictment, Tolaj has used his influence as an adviser that contracts a plus won by “Jona Med” not to continue.

Although the contracts have been drafted, Bujar Bukoshi had not signed contracts for “Yes Pharm” or for “Jona Med”. The two companies have filed civil charges against the Ministry. Tolaj, Fyza, Field, and Red, according to the indictment, have used official duty by contracting for “Freedomd”.

They have not maintained procurement procedures since there has been a signed final report, with which the contract has been divided “Johna Med”.

The Red Report has not signed, and the assessment commission has continued by sharing the contract to the company that does not meet the tender criteria. Tolaj, Field and Red are accused of using official duty by publishing and then for no good reason by cancelling tenders for essential drugs for patients, “Beta”, “Interfon” and “Fluadabine”.

The owner of the company that supplied these drugs, according to the indictment, has not been liked by the Ministry, and instead of using exemptions from the Procuration Laws, they have continued with the removal and cancellation of tenders for these drugs.

Fyza, Tolaj, Field, also charged that Fadil Lubenijkis, who had won a tender for the supply of intravenous points, where the price for an infusion was 36 cents while Lubeniqi earned 2 cents, did not continue the contract since the same one refused to pay 10% to continue the contract.

And then the contract was given to the company “EX CLUSIVE”, where the price was 45 cents for infusion, 9 cents more expensive than Lubenic was paid for infusion. Red is also accused of using the official position, failing to preserve tender documents.

The same, he had to file the full tender documentation. Although these documents were requested by the prosecution, no copies have been submitted or found during the Ministry's raid.

The defendants Tolaj, Pajaziti and Hyseni allegedly on November 30th 2011 are attempting to give the company “Johna Med” material benefits worth 5,000 euros.

The defendants have done so to win a tender and contract worth 70,000 euros by acting outside their financial authority.

In the June 1st 2010 to January 11th 2012, Tolaj along with Fusha is claimed to have mistreated or intimidated people for what they are accused of criminal work <x0 malpractice during the exercise of official task”.

Acting contrary to the Kosovo Financial Management and Criminal Code Tolaj Law, along with Pajazit and Hysen, have given material benefits to drug suppliers or the possibility of meeting contracts via payments in advance.

Moreover, Pajaziti was supposed to have told the receptive commission at the end of 2007 to sign counterfeit admissions of drugs from these suppliers. According to the indictment, Tolaj, Pajaziti and Hyseni in 2007 have cancelled obligations to “Jonah Med” and other operators to give contracts to those with whom they were interested, causing losses to Kosovo's consolidated budget.

While in 2011, the defendants mentioned above have entered a damaging contract with Fyza, Fusha and Red, causing damage to Kosovo's budget worth 1.5m euros for a period of three years.

Tolaj under the indictment had benefited the value of 5,000 euros from a decision by Nexhat Shaban at the time chairman of the Procuratory Organisation regarding a Health Ministry tender. Shaban is claimed to have received a reward by releasing this decision that was neither recorded nor stored.

Tolaj and Fyza acting as health ministry officials have asked for bribes from various people for contract winnings. Tolaj according to the indictment has processed large sums of money very much avoided tax. He also allegedly did not pay the value tax exceeding the amount of 15,000 euros.

Tolaj and Imer Ajjeti, during 2012, according to the indictment have attempted to prevent investigations of this case through mediators to contact the EULEX chief prosecutor and EULEX Courts Assembly Chairman to dismiss the case prosecutor and dismiss the case against them.

The history of the case: The Constitutional Court in Pristina, with the act issued on July 19th 2013, the Ministry of Health's permanent secretary, sentenced him to 10 months in prison for “inciting the counterfeiting of official documents”, and 9 months in prison for “mangie from tax”.

The court has appointed a unique 18-month prison sentence, in which, according to the indictment, the same will account for the time spent in house custody and house arrest. Also, for committing the criminal offence of “tax management” has been fined a 1,000-euro value.

This act has also prohibited the exercise of functions in administration or civil service for three years. Arbenita Pajaziti, has been sentenced to six months in prison for committing a criminal act “inciting the counterfeiting of official documents”, while another item of the indictment that was charged with “inciting the counterfeiting of official documents” has been sentenced to 6 months in prison on bail.

The court has assigned him a unique sentence of eight months, which will not be executed unless the same was committed for a period of two years, since the act of judgment becomes all-powerful. Pajazit was also barred from exercising public functions in administration or public service for two years. Hajrullah Fyza, has been convicted of a criminal offense, a bribe, to six months in prison. The court has assigned him a unique sentence of eight months in prison.

Under the trial, the time of detention, the same will be counted in prison sentences. Fyza has also been banned from public office in administration and public service for three years. For other points of the indictment, the upper ones have been acquitted of charges.

Bujar Bukoshi, former health minister, under the Constitutional Court's act in Pristina, has been acquitted of charges.

Other defendants, Ismet Hyseni, Zenel Red, and Bekim Field have also been acquitted of the accusation. Following Ilir Tolaj's defense complaints, Arbenita Pajaziti, and Hajrullah Fyza, at the Court of Appeals, over the act of the Constitutional Court, the Court of Appeals had received this act: the Act of Basic Court of Pristina has been annulled in connection with points 1.1.1.2.1.1.1.6.7,1.8.1.9,2,3,10 and related to these provisions has been returned to the retrial.

However, Appeals has confirmed the complaint of the Constitutional Court on points 1.4.1.5,11, and points that were not filed by prosecutor 1.7,1,10,11,12,1,13,3,2,6,8 and 9.

The Supreme Court, has approved Ilir Tolaj's defence request, and has been rejected on charges of committing criminal acts avoidance of taxes. The act of the Constitutional Court and the Court of Appeals has been changed.

The Supreme also annulled the sentence for Hajrullah Feesa, convicted of criminal bribery, and turned the case into a re-establishment to the first-degree court.