On 15/12/2014 at the exit of the Albanian territory at the Border Crossing Point of Morinë-Kukës, the Police carried out the search of the vehicle type “Seat”, cherry color, license plates 03-571-DE, driven by the co-defendant (already convicted) S.S., and found the Chinese brand automatic weapon number 3088649 in the trunk of the vehicle, for which he did not have a permission issued from the competent authorities. The judicial investigation, according to some information of the criminal prosecution bodies, resulted in suspicion that the defendant M.Sh. in collaboration with other persons exercised illegal criminal activity, trafficking firearms from Albania to Kosovo and vice versa, and for this reason, investigations were initiated by the Prosecutor’s Office. From the results of the interception of telephone communications and from the conversations carried out between the defendant M.Sh. and other persons, suspicion arose that he discusses in codes with other nationals to collect, find, purchase and sell weapons, reaching the criminal goal of international trade.
Before being caught in-flagrante, specifically on 08/12/2014, the defendant M.Sh. received an SMS in his phone number, from the co-defendant S.S., with the content “..Good evening Mhill. Can you find me thirty piglets, write yes or no. Sefer”? After this date, there were phone communications between the co-defendants M.Sh. and S. specifically on 13/12/2014, the defendant M.Sh., conversed with the defendant S.S., who requested the defendants Sh. to provide “piglets”, using coded language. From the whole conversation of this date, it is understood that the co-defendants performed this activity in continuity and determined the way they will speak, the meaning of the word ‘piglet’ as well as the related prices. It was ascertained that the convict S.S., is the person who makes the order by stating the needed quantity as well as setting the date of arrival of the illegal items, “Can you provide me with 13 piglets and I will come there in two or three days”. M.Sh. responded: “Yes, come whenever you want”. “Good”, says Seferi, “I will come soon, the price is the last one”.
The technical expertise, with no. 70 dated 22/12/2014, of the exhibit - automatic weapon, with no. 3088649 mod. 56 cal. 7.62 mm, proves that it is a portable barreled weapon, capable of realizing shots of bullets, and fired normally.
The weapon and the vehicle were seized and then confiscated, according to the provision of the article 36/1/a of the Criminal Code, where it is stipulated that the materials which are object to commit a crime are confiscated at the end of judicial procedures.
The firearm, bullets and the vehicle were confiscated.
This investigation is based on the border control of Morina/Kukesi point Border, where on 15.12.2014 when the defendant S.S (codefendant already sentenced by the court in a separated trial) was captured in fragrance when he was leaving Albania to go to Kosovo.
The Police carried out the search of the vehicle type “Seat”, cherry color, license plates 03-571-DE, driven by the co-defendant (already convicted) S.S., and found the Chinese brand automatic weapon number 3088649 in the trunk of the vehicle, for which he did not have a permission issued from the competent authorities. The defendant M.Sh is the person who provides the firearms. The car was seized and controlled the firearms and the bullets were seized and put to further examinations, the mobiles were seized and examined.
Illicit trafficking of firearms in collaboration Article 278/a paragraph 2 of the Albanian Criminal Code.
Article 278/a/2 of the Criminal Code "Arms and ammunition trafficking", committed in the form of export. This offense is deemed a committed offence when by direct actions and contrary to the law, the person, in this case the defendants, has attempted to export one automatic firearm, from the territory of the Republic of Albania to Kosovo.
The Court of First Instance for Serious Crimes by the decision no. 34 dated 21.3.2016, ruled:
1. The defendant M.Sh. is hereby found guilty for committing the criminal offense of “Arms and Ammunition Trafficking”, committed in collaboration, provided by Article 278/a/2 of the Criminal Code, and sentenced to 10 (ten) years of imprisonment.
The Court of Appeals considers that the decision of the Court of First Instance for Serious Crimes, is fair and based on evidence and the law, in terms of proving culpability, as it has ruled for the defendant M.Sh., that he has consumed elements of the criminal offense for which he was found guilty, but unlike the court of first instance, the Court of Appeals for Serious Crimes concludes that the criminal offense “Arms and Ammunition Trafficking” was only attempted (Article 22 of the Criminal Code).
The Serious Crime Court of First Instance found:
1. The defendant M.Sh. is hereby found guilty for committing the criminal offense of “Arms and Ammunition Trafficking”, committed in collaboration, provided by Article 278/a/2 of the Criminal Code, and sentenced to 10 (ten) years of imprisonment.
The Court of Appeals considers that the decision of the Court of First Instance for Serious Crimes, is fair and based on evidence and the law, in terms of proving culpability, as it has ruled for the defendant M.Sh., that he has consumed elements of the criminal offense for which he was found guilty, but unlike the court of first instance, the Court of Appeals for Serious Crimes concludes that the criminal offense “Arms and Ammunition Trafficking” was only attempted (Article 22 of the Criminal Code).
Court of Appeal for Serious Crimes
This verdict is obtained from the official web site of the Serious Crime Court of Appeal of Albania www.gjykata.gov.al (nowadays called the Special Court Of Appeal for Corruption and Organized Crime).
The issue at hand is whether the criminal offense of arms trafficking was attempted or fully committed.
The Court of Appeals considered the allegations of the defendant in the appeal that the conclusion of the weapon’s technical expertise is suspicious, therefore one may not face ‘trafficking’ when the weapon does not meet the requirements of the firearm. The Court of Appeals finds this defense allegation as ungrounded as the technical expertise no. 70 dated 22/12/2014, of the exhibit - automatic weapon, with no. 3088649 mod. 56 cal. 7.62 mm, proves that it is a portable barreled weapon, capable of realizing shots of bullets, and fired normally.
The definition is provided in the Law on Weapons no. 74/2014, article 3 point 2, “Firearm” means any portable barreled weapon that realizes, is designed to realize or can be easily modified to realize shots, bullets or projectiles by means of an explosive device.” Given these conditions, the weapon seized from the co-defendant (now convicted) S.S. during trafficking to Kosovo, meets the requirements to be considered a firearm, because the expertise document no. 70, dated 22/12/2014, determines that ‘the item of expertise is automatic weapon, it is not in good technical condition but realizes shots’.
Also, the Court of Appeals considered the claim of the defendant M.Sh. that he did not commit the criminal offense in collaboration. The Court of Appeals concludes that the defendant committed the criminal offense of trafficking in collaboration with the co-defendant S.S., therefore there is a qualifying circumstance of ‘collaboration’, because their actions show that he had the goal of finding and trading the weapon that was seized in the car driven by the Kosovan citizen Sefer Slivova towards the Kosovo territory, which he had acquired upon the order of the Kosovan citizen who phoned to tell him that he would come to pick up some ‘piglets’, and the content of telephone conversations between them reported information that this criminal activity had been continuous for some time and that they agreed on the meaning of the word “piglet” and the price of the illicit items provided by the defendant Majkell (Mhill) Shyti on of the order of the Kosovan citizen.