Appeal acquits nine accused of damaging the budget by over 2 million euros

The Court of Appeal has reversed the decision of the Basic Court in Pristina, in the case where Shaip Ferizi, Shqipe Avdiu, Arben Jashari, Mustafë Vitia, Mexhid Mustafa, Besnik Ferizi, Faton Topanica, Arsim Topanica, and Ajdar Jashari were found guilty and sentenced to over 12 years in prison (together) on charges of damaging the state budget in the amount of over 2 million euros.

The appeal court acquitted the nine defendants.

They were accused of not delivering cigarettes worth 2 million, 931 thousand, 929 euros and 8 cents to KFOR, but selling them to other companies without a flag, causing tax evasion to the Kosovo budget, in the amount of 2 million, 441 thousand, 927 euros and 71 cents, reports "Oath for Justice".

The Basic Court had convicted the nine defendants for "Abuse of authorizations in the economy" and assistance in the commission of this offense.

The Special Prosecution Office had filed an appeal against the Basic Court's decision, alleging an erroneous determination of the factual situation and the decision on the criminal sanction. It had requested the Court of Appeal to impose a higher sentence on the defendants.

Meanwhile, the defense attorneys of the nine defendants, attorneys: Besim Parduzi, Blerim Hertica, Bedrie Rexhepi, Florin Vërtopi, Mentor Neziri, Agron Curri, Argjent Sefa, Arlind Jupolli and Asdren Bytyqi, had also filed appeals with the claims that the verdict of the Basic Court is involved in essential violations of the provisions of criminal procedure, incorrect and incomplete determination of the factual situation and violation of the Criminal Law. They had requested from the Appeals Court the release of their clients, or that the case be returned for retrial.

Meanwhile, the Appellate Prosecution Office had proposed in a submission that the appeal of the Special Prosecution Office be approved and the defendants be sentenced to higher prison sentences, while rejecting the appeals of the defendants' defense attorneys as unfounded.

Therefore, the Appellate Panel, with the decision drafted on May 7, 2025, found that the defense attorneys' appeals are well-founded, while that of the Special Prosecution Office is unfounded.

According to the Appeal, the Basic Court's decision is not involved in essential violations of the provisions of criminal procedure, but an erroneous determination of the factual situation was made, and thus it wrongly declared the accused guilty of the criminal offense reclassified from the initial indictment and specified by the prosecutor in the closing argument.

It states that the actions of the accused do not fulfill the elements of the offense for which they were found guilty.

In the reasoning of the Appeal, it is emphasized that from the initial indictment, the accused Ferizi, Avdiu-Shala and Jashari were accused of having committed the criminal offense "Organized Crime" in connection with the criminal offense "Abuse of Official Duty" and "Fraudulent Evasion of Duties" of the Customs Code, while the accused Vitia, Mustafa, Gashi, Ferizi, Faton Topanica, Arsim Topanica and Jashari were accused of the criminal offenses "Organized Crime" and "Fraudulent Evasion of Duties".

Subsequently, the initial indictment was said to have been specified in the basic offense "Abuse of official position or authority" (according to the Code in force at the time and as more favorable to the accused), while in the closing argument, the prosecutor again specified the basic criminal offense by returning it to the old Code "Abuse of official duty", while the other offenses remained unchanged.

The appeal agrees with the findings of the first instance regarding the criminal offense of "Organized Crime", with the reasoning that this case is not related to this offense.

"In this specific case, we are dealing with an opportunity to purchase goods without stamps, without customs clearance, and consequently cheaper, which opportunity was offered by the defendants who worked in the business organization BDF PX. This panel also agrees with the findings of the Court of First Instance regarding the failure to fulfill the elements of the criminal offense of abuse of official duty, since the defendants did not enjoy official positions that could be considered as such," the decision states.

In this regard, the Appeal emphasizes that the Prosecution had not proven with any evidence the structure of the group - the fulfillment of the elements of organized crime, but only speaks in a generalized manner. It states that the Basic Law emphasizes that they had certain tasks, but does not prove with any evidence how these tasks were given, who gave them and what they were.

According to the Appeal, the defendants communicated not to send the cigarettes to the PX, but to sell them on the black market or private businesses, where the defendant Arsim Topanica was caught red-handed, and this method continued for over a year with the others.

Regarding the reclassification of criminal offenses during the announcement of the Basic Court's decision on "Misuse of authorizations in the economy", the Appeal finds that in order to commit this criminal offense, the perpetrator of this offense must act with the intention of unlawfully benefiting the business organization or legal entity in which he is employed or another business organization or legal entity, but the evidence does not show that this was done.

According to the Appeal, based on telecommunications intercepts, it appears that the defendants collaborated to sell part of the goods imported for KFOR on the Kosovo market, avoiding customs duties. The goods were entered into the company's warehouses only fictitiously, through falsification of documentation, while in reality, the cigarettes were sold to various sellers.

But, according to the Appeal, this does not prove that it was done for the benefit of the business organization or legal entity for which they worked. In fact, it turns out that it was done to the detriment of the business organization, considering that the goods they imported did not reach their intended destination.

Therefore, based on this, the second instance court finds that the basic conditions of the offense of "Misuse of authorizations in the economy", for which the defendants were found guilty, have not been met.

"Therefore, the purpose of realizing the unlawful financial benefit for the business organization has not been fulfilled, i.e. there is no evidence proving that the defendants were acting for the purpose of unlawful benefit for the business organization BDF PX," the verdict states.

Meanwhile, the other defendants who were found guilty of aiding and abetting others, the Appeals Chamber assesses that they cannot be found guilty since their guilt has not been proven.

"As for the other defendants found guilty of the criminal offense of Abuse of Authorizations in the Economy in Aid under Article 236, paragraphs 1 and 2, in conjunction with Article 25 of the KCCP, the Appellate Panel finds that they cannot be found guilty of aiding and abetting the commission of this offense, since the first three defendants did not commit the offense for which they were found guilty," the decision states.

It states that from the appealed verdict it cannot be understood in what way the six defendants had assisted the first three defendants in the misuse of authorizations in the economy.

The Appeal also emphasizes that the accused Ajdar Jashari is not mentioned at all in the factual description of what incriminating actions he has committed.

Consequently, the Appeal finds that the form of assistance has not been described correctly and accurately, but since the first three defendants did not fulfill the elements of the criminal offense for which they were tried, the element of assistance is also not fulfilled for this offense.

However, the Appeal considers that there are incriminating actions by the accused - because from the communications made between them it is seen that they were involved in illegal activity, but the Court cannot create a new charge if the Prosecution does not charge.

"The court may reclassify any criminal offense within the offense for which the defendants are accused, may produce any evidence to correctly establish the factual situation, but it cannot construct a factual description and a new criminal offense for which the Prosecution does not charge. For this reason, considering that we do not have an indictment for any criminal offense whose elements are fulfilled by the incriminating actions of the defendants, the Court of Appeals has acquitted the defendants for the offenses for which they were found guilty, for which the elements were not fulfilled by the actions of the defendants," the decision states.

As for the items confiscated by the appealed judgment, the Appellate Panel finds that these items should be returned to the defendants, since they have been acquitted of the charges and there is no longer any reason for their confiscation - except for two forged stamps confiscated from the defendant Shaip Ferizi, which cannot be in circulation.
legal.

Otherwise, on March 11, 2019, the Basic Court in Pristina sentenced the nine aforementioned defendants to suspended imprisonment.

However, the defendants' defense attorneys filed an appeal against this decision at the Court of Appeal, in which case on December 18, 2019, this Court approved their appeals and, ex officio, annulled the first-instance verdict and remanded the case for retrial.

In the retrial, the Constitutional Court on September 16, 2024, announced a guilty verdict against the nine defendants, sentencing them to over 12 years in prison (together).

In this case, Lulzim Gashi is also accused, for whom the case was separated in order to save money and develop a joint procedure.

According to the indictment filed on December 30, 2008, the nine accused, from September 8, 2006 to October 9, 2007, had committed a serious crime as part of an organized criminal group, each having their separate role in criminal activity. .

The indictment states that, with the aim of directly or indirectly obtaining an illegal material or financial benefit, while importing cigarettes as a KFOR contractor and on behalf of KFOR, they had abused their official duties.

In this case, according to the indictment, cigarettes worth 2 million, 931 thousand, 929 euros and 8 cents were not delivered to KFOR, but were sold to other companies without a tax label, causing tax evasion against the consolidated budget of Kosovo in the amount of 2 million, 441 thousand, 927 euros and 71 cents.

The prosecution charged the accused Shaip Ferizi, Shqipe Avdiu and Arben Jashari with the criminal offense of "Organized crime", related to the criminal offense of "Abuse of official duties" as well as the criminal offense of "Fraudulent avoidance of payment of obligations".

Meanwhile, the defendants Mustafa Vitia, Mexhid Mustafa, Lulzim Gashi, Besnik Ferizi, Faton Topanica, Arsim Topanica and Hajdar Jashari were charged with the criminal offense of "Organized Crime" in connection with the criminal offense of "Eviction of Duties". /Oath for Justice/