Appeal frees nine accused of budget damage to over 2m euros

The Court of Appeals has changed the decision of the Constitutional Court in Pristina, in the case where Shaip Ferizi, Albanian Avdiu, Arben Jashari, Mustafe Vitita, Mead Mustafa, Besnik Feriz, Faton Topanica, and Arsim Topanica had been convicted and sentenced to over 12 years in prison (with) in connection with the charge of undermining the state budget worth over 2m euros.

Appeals pronounced a free trial against nine indictees.

They were charged that cigarettes worth 2 million and 931 thousand and 929 euros and 8 cents had not been handed over to KFOR, but had sold to other companies without banners, causing tax evasion of Kosovo's budget, in the amount of 2m 441m and 927 euros and 71 euro, writes “Betim for Justice”, Klankosova broadcast.tv.

The foundation had convicted the nine accused of “Use of authorisations in the economy” and help in performing this work.

Towards the Foundation's decision, the special prosecutor had filed a complaint on the claim of the wrong proof of the actual situation and the decision on criminal sanctions. He had demanded that the accused pronounce a higher sentence.

Meanwhile, the defenders of the nine accused, the lawyers: Faith Parduzi, Blerim Hertica, Bedrie Rexhepi, Florin Vretopi, Mentor Neziri, Agron Curri, Silver Sefa, Arlind Jupoli and Asdren Bytyqi had submitted complaints that the Constitutional Act is involved in the essential arrangement of criminal procedure dispositalsity, error and incomplete violation of the actual state and violation of the Criminal Law. They had demanded the release of their defenders from Apel, or that the case be turned into retrial.

The Preparation Appeals Prosecutor, however, had proposed that the complaint of the Special Prosecutor and the accused be approved, pronounced higher prison sentences while rejecting complaints of defenders of the accused as groundless.

So the College of Appeals, with the decision compiled on May 7th 2025, has found that the defenders' complaints are based, while the Special Prosecutor's Office's.

According to Appeal, the Foundation's decision is not involved in essential violations of the penal procedure provisions, but has become a misconception of the actual situation, and has wrongly convicted the accused of criminal work rescinded by the initial indictment specified by the prosecutor in the final word.

It states that the actions of the accused do not meet the elements of the work for which they have been convicted.

In reasoning of Appeal, the initial indictment of the accused Feriz, Avdiu-Shala and Jashar are charged with committing criminal work “organised crime” regarding criminal work “Using official task” and “Deceitive tax payments of the Customs Code”, while accused Vitita, Mustafa, Gashi, Ferizi, Faton Topanica, Education Topanica and Jashar were charged with criminal acts “Organised crime” and “Avoid fraudulent payments on duties”.

Then, the initial indictment is said to have been precise in the basic work “The use of official position or authority” (according to the Code in force at the time and as the most favourable for the accused), while in the final word, the prosecutor has again made the accuracy of the basic criminal act by turning it into the old “Using official duty”, while other works have remained unchanged.

The appeal agrees with the first degree finding concerning criminal work “Organised crime”, with the argument that this case is not about this work.

The “in the concrete case involves an use of the case to buy junk without banners, and therefore cheaper, which the accused who worked in the BDF PDF business organisation have offered. This college also agrees with the findings of the first-instance Court concerning the failure to fulfill elements of criminal acts abuse of official office, since the accused did not enjoy official positions to be named”, the verdict said.

In this regard, Apel emphasises that the prosecution had not proven by any evidence the structure of the group- the fulfillment of organised crime elements, but is only talked generally. It says that the Foundation emphasizes that they had certain duties, but it does not testify with any proof of how these were given, who gave them, and who they were.

According to Appeal, the defendants have been communicating not to send cigarettes to PX, but to sell them on the black market or private businesses where they have been caught in the falgary of accused Arsim Topanica, and this approach has continued over a year with others.

Regarding the resumption of criminal acts during the announcement of the Foundation's decision to “Use of authorisations in the economy”, Apel finds that for this criminal act to be carried out, the perpetrators of this work must act in order to capitalise on the illegal benefit of the business organisation or the legal person in which they are employed or other business organisation or the legal person, but the evidence does not result that this was done.

Always according to Apel, based on telecommunications surveillance, it turns out that the accused have co-operated that some of the goods imported to KFOR sell on the Kosovo market, avoiding customs duties. The goods have been introduced into the company's warehouses only in a very subtle way, through the counterfeiting of documentation, and in reality, cigarettes have been sold to various vendors.

But this, according to Apel, does not confirm that it was done for the benefit of the business organization or the legal person they worked for. In fact, it turns out it was done at the expense of the organisation, the business, given that the goods it imported did not go to a certain destination.

So, based on this, the second degree court finds that the basic conditions of the “economy authorisation quox1> for which the accused have been found guilty have not been met.

Therefore, the goal of implementing the profit of illegal property for the business organisation has not been met, or there is no evidence proving that the accused were acting for the purpose of illegal profit for the BDF PXx1> business organisation, the indictment said.

Meanwhile, the other accused who had been convicted of helping others, Apel, estimates that they cannot be convicted because their guilt has not been proven.

“Even with regard to the other indictees convicted of criminally guilty of misusing authorisations in the economy in aid from Article 236 paragraph 1 and 2, regarding the 25 KPP article, the Appeals College finds that they cannot be found guilty of assisting in carrying out this work, since the first three indictees have not performed the work for which they have been found guilty of”, the decision is said.

It says that from the complaining act, it cannot be understood in what way the six accused had helped the first three indictees to misuse authorisations in the economy.

Similarly, Apel points out that accused Aydar Jashar is not mentioned at all in a specific description of what incriminating action he has.

Consequently, Apel finds that the form of assistance has not been described correctly and correctly, but since the first three indictees have failed to meet the elements of the criminal work they have been tried for, even the element of assistance is not fulfilled for this work.

However, Appeals considers that there are incriminating acts by the accused -- because the communications made between them are seen as being involved in illegal activities, but that the Court cannot establish a new charge unless the prosecution charges.

The court can re-qualification any criminal acts under the work accused of, can present any evidence to prove the actual situation, but cannot build specific descriptions and new criminal acts for which the prosecution does not charge. For this reason, given that we have no charge of any criminal offence that its elements are met with incriminating acts of the accused, the Court of Appeals has released the accused for acts for which they have been found guilty of failing to meet elements with the actions of the accused”, the verdict says.

And as for the items confiscated in the complaint case, the Appeals College finds that these items should be returned to the accused, since the same were acquitted and there is no reason for their seizure- other than two forged seals confiscated by accused Shaip Feriz who cannot be in law circulation.

Otherwise, on March 11th 2019, the Constitutional Court in Pristina had sentenced the nine accused and high-ranking to prison.

However, to that decision, the Court of Appeals had filed complaints to the defenders of the accused, on December 18, 2019, that Court has approved their complaints, as well as, according to official duty, has annulled the first degree of bias and turned the case into retrial.

In the retrial, the Foundation on September 16, 2024, declared a condemnation of nine indictees, condemning them to over 12 years in prison (all along).

In this case, the accused is Lulzim Gashi, for whom the subject for which it was isolated in order to economicise and develop a joint procedure.

According to the indictment, filed on December 30th 2008, the nine accused from September 8th 2006 to October 9th 2007, had committed serious crime as part of an organised criminal group, each having their role divided into criminal activities.

The indictment reportedly aimed at directly or indirectly benefiting an illegal property or financial benefit, during the importation of cigarettes as KFOR contractors and on behalf of KFOR, had misused official duties.

In this case, according to the indictment, cigarettes worth 2 million and 931 thousand and 929 euros and 8 cents had not been handed over to KFOR, but sold to other companies without banners, causing tax evasion to Kosovo's consolidated budget in many of Kosovo's 2 million 441 thousand and 927 euros and 71 cents.

Prosecutorial of the accused Shaip Feriz, Shqipe Avdiu and Arben Jashari, charged them with criminal acts “organised crime”, regarding criminal work “Using official task” as well as criminal activity “Shun false duties payments”.

While defendants Mustafe Vitita, Medjid Mustafa, Lulzim Gashi, Besnik Ferizi, Faton Topanica, Arsim Topanica and Hajdar Jashari, charged them with criminal work “organised x1> regarding criminal work “Avoid paying dues”./Periscopi/