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DECISION 
"IN THE NAME OF THE REPUBLIC"
The Judicial District Court of Tirana, composed of judges:
AGIM BENDO - President
Majlinda Dogg-Assessor
Bledar ABDULLA-Assessor
Assisted by the clerk Elona Isufaj, reviewed the December 7, 2009, 18 January 15 February 29 March 26 April 24 May and at 7, 15 and 18 June 2010, the public hearing Civil Case No. 12676 / 2669 concerning the parties:
APPLICANT: Ylli Pango, son of Vito and Aferdita born on 26.03.1952 in Tirana, residing in Tirana, on 60 / 1 Ali Visha Street, represented by the special power of attorney No. 2064 rep 382 of 08.09.2009 by kol Advocate Bendis Bocar.
DEFENDANT: "Top Channel" Sh.A, No. NIPT K12007002U-i, based in Tirana, International Center of Culture, or street "Aleksander Moisiu," former Laboratory at the film Albafilm the premises of the former Kinostudio, Tirana ; represented by counsel Denis Selimi by special proxy nr 5874 rep kol 1077 of 21.10.2009 and by his employee Filip Cakuli by special proxy rep 2115 No. 364 of kol 15.06.2010.
RE: The defendant's statement "Top Channel" SHA as responsible for the damage suffered by the plaintiff Ylli Pango, resulting from the publication by him of inaccurate information, not real and illegally obtained by the defendant. The obligation of the defendant "Top Channel" SHA not to publish in future articles, interviews or comments to the plaintiff Ylli Pango, which directly or indirectly may injure himself. The obligation of the defendant "Top Channel" SHA to pay plaintiff Ylli Pango in restitution for the injury as stated above, a value of 1,000,000 (one million) euros.
LEGAL BASIS: Articles 608, 609, and 625 of the Civil Code in connection with Articles 153.154 of the Code of Civil Procedure, Articles 17 and 35 of the Constitution of Albania and Articles 8, 10 and 41 of the European Convention of Human Rights.
At the end of the statement in its conclusions, the plaintiff Ylli Pango (its representative Bendis Bocar counsel) requested the acceptance of the application.The defendant "Top Channel" (SHA's representative lawyer Denis Selimi and his employee Filip Cakuli) sought dismissal of the petition.
The Tribunal, after administering the acts and considering the matter in its entirety,
The application is filed, the applicant Ylli Pango calls for judicial respondent "Top Channel" Sh.A is liable for the damage he has caused resulting from the publication of inaccurate information, not real and illegally obtained by the defendant - that prejudice by the plaintiff reaches the value of 1 (one) million euros and that it must be compensated by the defendant. Similarly, the plaintiff also requests that the defendant "Top Channel" Sh.A is forced through the courts not to publish in future articles, interviews, or comments regarding the applicant Ylli Pango, which of directly or indirectly may injure himself. The petition filed based on Articles 608, 609, 625 / a of the Civil Code, on Articles 17 and 35 of the Constitution, the articles 8, 10 and 41 of the European Convention on Human Rights and 153.154 on Articles of the Code of Civil Procedure.
More concretely, in his application the applicant Ylli Pango announced that on March 4, 2009 in the show "Fiks Fare" 20:15 the defendant was made a "video" taken with a hidden camera, hence it The result is that "a girl" through employee "Top Channel" ShA had met with the applicant Ylli Pango, (at that time Minister of Culture, Sports and Tourism) in his office where it had invited to get hired in a QJQ, led by his niece. According to this sequence of television, the Minister Pango exchanged some shots with the SMS son and daughter in question to determine the precise time and place of rendezvous at the headquarters of QJQ, where he had been promised to be hired. Meanwhile, in a second sequence of television that same issue of the defendant was sent a message from the cell of Mr. Pango (which follows the time 9:15) with comments from journalists on the TV show (that to say "Fiks Fare") that Mr. Pango had invited the girl who would be hired by him to meet his personal residence.While later, a third sequence in the same television broadcast was made the girl in question (which sought to be hired) who was at the home of Mr. Pango, discussing with Mr. Pango (at that time Minister ) about the possibility of its participation in various fairs, exploiting it for its physical appearance. According to the plaintiff, referring to the 'Video' above, used and transmitted by the defendant, are easily found that:
1. A girl who communicates with Mr. Pango (at that time Minister) studio, Top Channel, SHA and for the establishment of dialogue between the girl and Mr. Pango intervened leaders of the show "Fiks Fare" as has been said by the hosts of the show in person before the onset of the "Video".
2. The issue in question can be determined and was not even explained that the sequences transmitted on appointments with two different girls. In no case has been explained by the defendant that the 'Video' was a collage of different records.
3. In the sequences of the "Video" sent there are records of the house (private residence) Mr. Pango and his personal portrait that appears in the premises of this house dressed in clothes and even domestic there are also records of his office and his portrait in his office at the ministry.
4. In the sequences of the "Video" transmitted appeared on the screen the text messages sent by the cell of Mr. Pango also includes details of the message and were recorded and then emerged with "subtitles" conversations that 'Mr. Pango spent his cell.
5. The transmission of the "Video" in question was also accompanied by the hosts in question to "subtitles" explaining their part, their comments, referring to hypothetical situations, film editing artistic (like the movie 'Komisar Drita i') and songs (Joe Cocker) with erotic scenes and interventions for installation; which, during the transmission of sequences have misinformed the public and brought about misperceptions the alleged "scandal" of the Minister Pango. More concretely, through this "video" was presented to the public by the hosts of the show "Fiks Fare" as if the Minister Pango had invited the girl in question to his personal residence, a fact wrong because it follows proved that this is the girl who went on her own to meet him at his home.
According to the plaintiff, the facts mentioned above clearly show that the defendant "Top Channel" SHA, in this case gave the public a false, exaggerated and caused by him, whose only goal was the denigration of Ylli Pango applicant as that person and minister. These actions of the defendant are contrary to Albanian legislation in force, sections 17 and 35 of the Constitution of the Republic of Albania and Articles 8, 10 and 41 of the European Convention on Human Rights, man - in this case openly flout the rights and freedoms of man as the right of the home, the family, correspondence and their inviolability. The plaintiff argues that the defendant "Top Channel" SHA (the hosts of his show "Fiks Fare") with their illegal and provocative actions seriously violated his privacy and his image as a person and minister.
According to the plaintiff audiovisual recordings made and transmitted by the defendant were made by him in open contradiction with the Albanian legislation in force and, without his knowledge and consent, and likewise, these records were obtained and recorded through repeated provocations and not in the approved form, by transgressing the rules of serious professional ethics and trust in journalistic and overtly breaking the existing legal framework and the principle of separation of powers, which identifies as the only legal authority the floor and the court for such cases.
Ylli Pango the applicant states that the illegal actions of the defendant above "Top Channel" ShA, have severely undermined his privacy and reputation, causing him a moral injury affecting his honor and his personality and injury suffered in the social sphere and in full enjoyment of life (the pleasures of life). The consequence of the infringement of his reputation, his personality, his name, honor and rank it once enjoyed - the moral damage he suffered was apparent in the form of mental distress, pain and trouble psychological. Similar
Meanwhile, the court emphasizes that the defendant "Top Channel" Sh.A in its conclusions the trial had sought dismissal of the petition stating as follows:
1. The publication he made the actions of Mr. Pango is factually true and what is not true that the "video" passed on his show "Fiks Fare" has been manipulated or manufactured as claimed unfairly Part plaintiff. Similarly, the presentations made by the string "Top Channel" SHA are known publicly as they are presentations of a television channel serious nationwide and beyond borders.
2. Freedom of media and information is a non-conforming and guaranteed by the Constitution of the Republic of Albania. The court case, according to the defendant, the application in practice of media law to inform the general public and to achieve the necessary policies and criticism of public officials to the posts.
3. In the instant case, the actions of Mr Pango (which were recorded by the journalist of "Top Channel" SHA) are inconsistent with morality and why the applicant Ylli Pango can not benefit from protection on the basis Article 8 paragraph 2 of the European Convention of Human Rights. Also, according to the defendant on the basis of Article 8 / 2 of the European Convention on Human Rights' protection of morals "takes priority in a legal office, and because compliance with this Priority may also be affected and limited the private side of the person including the home of private claims and asks the applicant under Article 8 / 1 of the European Convention of Human Rights.
4. The Convention of Human Rights, according to defendant, guarantees "Freedom of Expression" and "limit" only in cases expressly determined by law. On this legal point of view, as stated above, the defendant said she had no "legal limit" to receive and provide information and that information can be obtained from him in the "form ofrecordings ", as it did in the case of Mr. Pango. At the same time, the plaintiff itself, this aspect has brought and made no "legal limit" about obtaining and distributing information through recordings by media services, which form was used in his case by the defendant.
5. Known the basis of Article 8 of the European Convention on Human Rights boundaries of criticism against the policies are much larger than for ordinary people, which means that any policy (as is the case for Mr. Pango) should put himself openly before the trial profound, every word and action, journalists and the general public and therefore should be accepted with tolerance.
6. According to the defendant, his actions in this case were legal and that the Albanian prosecution during the trial of the criminal case found no breach made by the defendant in the publication of the "video" on his show "Fiks fare ".
7. Finally, the defendant responded in the trial that the injury from 1 (one) million euros claimed by the plaintiff does not actually exist, and similarly, the causal relationship either, nor his fault element, and the same, how to calculate the damage does not.
The trial proceeded in this case, the point of view of the facts it follows, shown as follows: dated 4-5 March 2009 in the show "Fiks Fare" 20:15 Television "Top Channel" SHA was sent an audiovisual recording made by a hidden camera television journalists "Top Channel", which were reflected in recording the actions and conversations between a girl Ylli Pango and the applicant at this time the post of Minister of Tourism, Culture , Youth and Sports. Visual images, it was revealed that a girl who wanted to be hired at the Ministry of Tourism, Culture, Youth and Sports (led by Ylli Pango the plaintiff), had personal contact with M . Pango on the premises of his office and later also in the interior rooms of his house staff. In his house, according to the video tape, the Minister Pango asked the girl to undress in front of him, arguing that it should be looking for he would hire the Agency of Tourism, where she would participate in exhibitions. On these facts, cited above, the prosecutor of Tirana posted on 14/10/2009 Criminal Procedure No. 3724 of the offense of "passive corruption of officials of state or local officials" provided by Section 260 of the Penal Code, dependents of the applicant Ylli Pango (at that time Minister of Tourism and Culture). Evidence given at trial by the prosecutor in the judicial district of Tirana has resulted, proved the point of view of the facts as follows: "Alma Mukaj the reporting had been hired to draft the TV" Top Channel " Tirana to the position of the lawyer. In January 2009, she met the citizen Filip Cakuli she knew long ago and asked for help finding a job. Two days later, Filip Cakuli Alma Mukaj phoned to inform that Ministry of Tourism there was a place vacant lawyer. Thus, Alma Mukaj met Filip Cakuli who in his presence, telephoned the then Minister Ylli Pango, asking for an appointment Alma about the place of work. On behalf of the Minister, an appointment was given to Alma Mukaj that visited together with the appointment of Filip Cakuli driver. There she made an appointment with the Minister Pango who inquired about the schooling of Alma and also gave him an appointment to the Ministry two days later in order to obtain the documents. Two days after Alma went to the Ministry of Tourism and Culture and met again with the Minister Pango that after reviewing the documents proposed to Alma opportunity to be hired in an institute run by his niece. Alma has exchanged phone numbers with the Minister Pango and made an appointment the same day around 17:00 in the premises of the Institute of Sociological Studies. After that she returned in the local TV "Top Channel" Filip and informed that he was offered work at the Institute and not the Department. At 17:00 Alma did not go to the Institute of Sociological Studies and the Minister Pango called to tell him why she had not come. She informed him that Filip Cakuli set an appointment that same day at 19:00.At this meeting Filip took the phone card Alma saying that "this will be my responsibility to use the phone card with another person." Two days later, Filip issued the card to Alma and asked if she was ready to meet the Minister Pango and record the conversation, what Alma refused. After two weeks from the time he had made the phone card, the citizen Filip Cakuli Alma phoned asking him to go to the Ministry of Tourism and Culture to complete documents. So the next day Alma visited the Ministry of Tourism and Culture together with the journalist "Fiks-Fare" called Alkid Budini. The Department, Alkid gave Alma a phone device with which the citizen Filip Cakuli asked him to record the conversation with the Minister Pango. After meeting with Ylli Pango Minister Alma gave the citizen Filip Cakuli the phone device with which it was recorded and filmed the encounter with the former minister. A few days later, when Alma was already hired Mukaj TV "Top Channel", Filip Cakuli asked him to accompany Alkid Budini out a move. Thus, Alma has accompanied Alkid, and with the cameraman and driver Gert Hoxha Roland Dyrmishi, they went to the City of Students at home Ylli Pango Minister's staff. Here Alkid Budini came home Ylli Pango staff while Alma, Gert and Roland have expected outside the home at a distance of about 100 meters for 15 minutes.
The declaration of Denisa Terihati (the post of deputy director of the show "Fiks-fare", it follows that the realization of the hidden camera with Minister Pango is initiated by the director of the show "Fiks-fare" Filip Cakuli. This happened because the writing was presented to Alma Mukaj which, she says, went to see the Pango Minister with a recommendation for hiring and the Minister had given an appointment after work hours in an institute who was in the area of the old block in Tirana. The recording of telephone conversations Ylli Pango Minister has been done with the phone card Alma Mukaj, but instead it is the journalist Alma Alikda Budini who conversed with the Minister Pango as Alma did not agree to participate in this trial organized by "Fiks-Fare". She said the behavior of Pango Minister was correct and she no longer wanted to continue. Have been registered five telephone conversations with the first record on 27.1.2009. Alkid Budini The journalist went three times to the Ministry of Tourism and Culture to meet the Minister Pango. She was able to meet the Minister Pango in his office a third time exchanged phone numbers and made an appointment in the afternoon in order that Alkid furnish documents to be hired. In the afternoon, since it has not submitted to the Department for file documents, Alkid phoned and he was willing to file the documents at home. After that Ylli Pango Minister replied in a message he wrote to him to call when she would come. Alkid accompanied Alma Mukaj, operator and driver Gerti Hoxha Dyrmishi Roland, went to the City of Students and came to the home of Minister Pango where the meeting was recorded as it was aired on the show "Fiks- Fare. "So it's just that the event happened from the perspective of the facts on how to achieve the videotaped with a hidden camera then sent in the show" Fiks Fare " - which, as stated in the request for trial, was prejudicial to plaintiffs. The Prosecutor's Judicial District of Tirana, the event cited by analyzing the legal point of view, came to the conclusion that the aforesaid registration conducted by the defendant "Top Channel" SHA without the permission of state authorities is not evidence in the procedural sense, since this recording was obtained in a hidden way and not according to the sources provided by the Criminal Procedural Law into force , which makes this recording under Articles 149, 151 / 4221222 and 226 of the Code of Criminal Procedure but also on the basis of Article 32 / 2 of the Constitution of the Republic of Albania - unusable as evidence in criminal proceedings against the Minister Ylli Pango. Similarly, the Prosecutor's Judicial District of Tirana, came to another conclusion that it does not result as evidence that Ylli Pango as MTKRS has exploited so abuses its state function to ask for direct or indirect profits irregular sexual acts in exchange for performance of acts connected with his position or function. In these circumstances, the prosecution finally decided to stop criminal proceedings against the applicant Ylli Pango (for details see the contents of the decision of the Prosecutor's Office 12/03/2009 Judicial District of Tirana "To stop the investigations in criminal proceedings No. 3724 / 2008, "the record judiciary).
The court, analyzing the facts and the event above the legal point of view comes to the final conclusion in that case made and audiovisual recordings transmitted by the defendant, by way of their achievement and provides the public are illegal acts and made negligently; acts which are estimated by the court as having seriously undermines the privacy and reputation of the applicant Ylli Pango causing him a moral injury occurring in the real sense of honor and personality as well as injuries received in the social sphere and in the full enjoyment of life (the pleasures of life) - which, under Article 608 and 609 in conjunction with Article 625 / a of our Civil Code but also in terms of section 41 of the Convention on Human Rights established beyond doubt the legal responsibility of the civil defendant "Top Channel" Sh.A for compensation for such damage. On this aspect, the court emphasizes that in section 608 of the Civil Code is explicitly sanctioned as follows: "Any person who unlawfully and wrongfully causes injury to another's person ... is obliged to compensate the damage caused.The injury is considered illegal when it results from a violation or infringement of the interests and rights of others which are protected by legal order or good customs. "Later in section 609 of the Civil Code is expressly stated that: "The injury must be a direct and immediate result of the action or non action of the person." While in Article 625 / a of the Civil Code is explicitly sanctioned as follows: "The person who suffers damage, other than heritage, has the right to seek redress when ... has been reached on his honor and his personality. " Similarly, the court emphasizes that in Article 41 of the European Convention on Human Rights is expressly sanctioned as follows: "When the court finds a violation of the Convention or its protocols, and the right internal High Contracting Party to do a repair allows partial damage this offense, the court, when necessary, provides fair compensation to the affected party "Precisely the point of view of these aforementioned legal provisions of Civil Code "On the responsibility in the injury caused extra contractual" and point of view of the principles of the Theory of Civil Law "For civil legal liability in injury and repair of such damage" - forging the court's inner conviction that the court case it is clear legal responsibility of the civil defendant "Top Channel" ShA the damage he has caused to the plaintiff Ylli Pango in the circumstances described above. The court concluded that the defendant "Top Channel" Sh.A in the case in question has consumed all the elements of the civil legal liability as:
1) The illegality of the actions of the talker injury, 2) The injury, 3) The fault of the talker of the injury and 4) The causal (cause-consequence) between the illegal actions of the talker of the injury and the consequences resulting these actions (the injury). But consider and analyze in more detail where concrete is the consummation by the defendant ("Top Channel" SHA) of the aforementioned elements of his legal responsibility in the injury caused to the plaintiff Ylli Pango:
I - Regarding the first element of 'legal and civil responsibility, about the unlawful actions of the talker of the injury - the court shows that it is fully demonstrated in this trial that the defendant's actions "Top Channel" ShA in this case are characterized by their illegality as follows:
First: The court drew attention through the transmission of audiovisual recording made by a hidden camera TV show "Fiks Fare" defendant's "Top Channel" Sh.A were openly flouted 'Rights and Fundamental Freedoms of Man ", which rights are protected as expressed in Articles 8 and 10 of the European Convention of Human Rights, delivered, and also sanctioned by Articles 15, 17, 35, 36, 37 and 41 of the Constitution of the Republic of Albania, which rights are also protected by specific sections 608 and 609 in conjunction with Article 625 / a of the Civil Code. More specifically, the court emphasizes that in Article 8 of the European Convention on Human Rights it is sanctioned as follows: "Everyone has the right to respect for his private and family life, his home and his correspondence ". While in Article 15 of the Constitution of the Republic of Albania is sanctioned as: "The Rights and Fundamental Freedoms of Man Are ... inviolable and remain the foundation of the entire legal order. " While in Article 17 of the Constitution of the Republic of Albania is penalized as follows: "the limits of rights and freedoms provided in this Constitution may be established by law ... and that those limits may not affect the essence of freedoms and rights and in no case exceed the limits in the European Convention on Human Rights ". Similarly, in Article 36 of the Constitution of the Republic of Albania is penalized as follows: "Freedom and secrecy of correspondence or other means of communication are guaranteed." Also, in Article 37 of the Constitution it is expressly sanctioned as follows: "The inviolability of the home is guaranteed." Moreover, it is highlighted in Article 41 of the Constitution of the Republic of Albania is penalized as follows: "the right of private property is guaranteed." In conclusion, the court in analyzing the appearance of compliance with these principles, human rights and fundamental freedoms of man cited above, notes that in the case for trial the defendant "Top Channel" has violated the Sh.A openly rights and fundamental freedoms of man and specifically those concerning respect for private personal and family side of the applicant Ylli Pango, the inviolability of the home and his private property as well as his correspondence - which rights and freedoms fundamental - are protected in a special way by the legal and constitutional provisions cited earlier in this decision. Also, for example in the sequences of the "video" submitted by the defendant (which were analyzed from a procedural standpoint by the court during the trial) it is found that there are records of internal premises of the private home of Ylli Pango applicant; premises in which his personal portrait (Ylli Pango Applicant) appears dressed in clothes and interior as well, it is found that there are also records of his office and his portrait in the department, there where he worked. Similarly, in the sequences of the "video" contestation that is transmitted to the screen the text messages sent from cell Ylli Pango the applicant, including here for details and message information, and are also recorded and presented with "subtitles" conversations that the plaintiff Ylli Pango has made his cell phone.
The defendant "Top Channel" Sh.A argued during trial that the applicant's actions Ylli Pango (recorded by the journalist) are in contradiction with "morality" and for that reason the plaintiff Ylli Pango is not eligible for legal protection on the basis of Article 8 paragraph 2 of the European Convention on Human Rights. So, according to the defendant on the basis of Article 8 paragraph 2 of the European Convention on Human Rights' protection of morals "takes priority in a legal office, which means that in Due to the observance of this principle can also be achieved and limited the private side of the person, including that of the home and claimed that the plaintiff claims Ylli Pango under Article 8 / 1 of the European Convention of Human Man. The court rejected this contention, cited above, defendant's "Top Channel" SHA as not based on evidence and law as follows: 1) The court emphasizes that in this case the defendant "Top Channel" SHA would conduct of its shares for obtaining and transmitting information concerning the applicant Ylli Pango accordance with the law, as expressly provided for such cases in Article 23 / 2 of the Constitution of the Republic of Albania - which means that the defendant was obliged to observe strictly the rights and freedoms of man who, according to Article 15 / 1 of the Constitution of the Republic of Albania, are inviolable. In fact, as has been said above, the defendant was infringing those rights and freedoms in the case of the applicant Ylli Pango, thereby establishing a de facto 'limits' of these rights and freedoms such as theRespect personal and private side of the applicant's family Ylli Pango, the inviolability of his home and his private property and in the same way his correspondence.However, the court shows that these 'limitations' rights and fundamental freedoms under Article 8 / 2 of the European Convention on Human Rights and under Article 17 of the Constitution of the Republic of Albania does be prescribed only by law and under no circumstances may affect the essence of these rights and freedoms. 2) The court finds that "the limits of rights and freedoms may be established by law" means that the same form (so only by law) will be introduced to limit these rights and the case it is necessary for "protection of morals" (the latter as we have said is alleged to trial by the defendant) - which means that, and our Constitution and the European Convention on the Rights of the man in no case have left the establishment of these limits to the competence of the subjects who are obliged to respect these rights, so that means that the company "Top Channel" SHA Nor can such a right to establish"limits" or "undermine" the rights and freedoms of man, which according to Article 15 and following of the Constitution of the Republic of Albania and the European Convention on Human Rights are inviolable. If we agreed to the contrary that is to say that the "limit" of fundamental rights or jurisdiction and the estimated case by case basis subject to a legal obligation to respect and not infringe on these rightsfreedoms and fundamental rights - then - in those circumstances we would have opened the door to arbitrary and each person would have been uncertain in his private and social life. From this situation as mentioned above, the court ultimately concluded that the defendant "Top Channel" Sh.A can not by such actions on behalf of the Office of Information Law "limit" or "undermine "indiscriminately to the rights and freedoms of individuals under Article 8 and 10 of the European Convention on Human Rights and embodied in the Articles of the Constitution of the Republic of Albania. In this conclusion quoted above, the court reached among others taking into account also the legal practice of the Strasbourg Court, where among the cases considered include the cases as follows:
- In Case k.Austrise Pfeifer (no.12556/03, S35, ECHR 2007) has been found that Article 10 of the Convention does not guarantee an unlimited right, even in cases where information can have interest in the wider public. In this case, when the main goal is the attack against the reputation of those guarantees of Article 8 of the Convention (right to privacy and reputation) take precedence.
- In Case Scharsach Verlagsgesellschaft v.Austria and Nees (no.39394/98) the court by referring to its practice concerning Article 10 of the Convention, reports that the media play an important role in a democratic society. However, the media must not exceed certain limits, especially if they relate to this reputation and rights of individuals. The media should disseminate information in accordance with their rights and their obligations, which information includes only large business interest groups.
- In Van Hanover k. Germany the Strasbourg court said that freedom of expression requires a narrower interpretation. In this connection the court referred to the Resolution of the Parliamentary Assembly of Council of Europe to "The Right to Privacy" which states that "The unilateral interpretation of the right of freedom of expression" by some media can not justify the violation of rights protected by Article 8 of the Convention on the rationale that readers "have the right to know everything about public figures."
Second: In this trial has been fully proved that visual recordings (sent later in the show 'Fiks Fare') were made by journalists of the defendant in a hidden way, without the consent of the applicant Ylli Pango, Although they have a very personal and private information concerning the applicant Ylli Pango (more specifically, in the sequences of the "video" and others are given recordings of the private residence of the applicant Ylli Pango, where he appeared personally in the clothing of Procedure).Precisely this way of obtaining and recording of information by the defendant at the location of the person that is to say Ylli Pango and the applicant's private side of the latter (which is more was also a public figure) is found to be in open contradiction with Article 23 and 35 / 2 of the Constitution of the Republic of Albania and the same with the European Convention of Human Rights - which legal acts, necessarily require the knowledge and consent by the person who is registered for such cases and especially when this recording was made to gather information concerning his private life. On this aspect, the court also takes into account judicial practice of the court in Strasbourg. Thus, for example in Van Hanover k. Germany the Strasbourg Court has exhibited should not be left out how to take photos, if the claimant was aware and had he consented to take them. The Strasbourg Court in this ruling has extended its position by explaining that the publication of the photos is an action that falls within an area in which protection and the reputation of the individual are particularly important.Further, the court in Strasbourg said that the matter in question has no connection with the distribution of ideas, but with the distribution of personal images, intimate about an individual.
Besides that, the court emphasizes that the taking by the defendant of audiovisual recordings in a hidden way, without the consent of the applicant Ylli Pango is also openly at odds with Articles 149, 151 / 4, 221, 222 and 226 of Criminal Procedure Code and Article 32 / 2 of the Constitution of the Republic of Albania. -Fact - it is declared, the prosecution forced the Judicial District of Tirana should not be regarded as evidence of audiovisual recordings above the defendant, because these recordings were made in a hidden way and not according to the sources provided by the procedural law in force. Under these conditions, observing the way, as mentioned above, illegal taking these visual recordings as well as non estimate as evidence for the same reason by the prosecution - so - in these circumstances, the court shall forge not a legal inner conviction about the authenticity of these recordings later provided in the program 'Fiks Fare' of the defendant.
II - Concerning the second element of 'civil legal liability, such as the existence of the injury suffered, the court finds that the illegal actions of the defendant as aforesaid Top Channel "SHA in making and distributing information to the Ylli Pango against the plaintiff against his person and his private life that he did suffer actual harm morale, which is to achieve his honor and his personality and as an injury suffered in the social sphere and that of the full enjoyment of life (the pleasures of life). It follows that this injury caused him to be in the form of physical suffering, pain and psychological disorder. After this event he was dismissed from his position as Minister suffering anxiety, sadness and boredom continuously. Following the presentation of this "video" illegally obtained from the defendant and transmitted in the television show "Fiks Fare" by it - to him, is to tell the applicant Ylli Pango it was destroyed the academic and political career built by him with a job of 35 years. The event, as mentioned above, has also resulted in the initiation of criminal proceedings, although the Criminal Procedure was discontinued thereafter. (The prosecution has found no evidence of criminal responsibility of the applicant Ylli Pango for reasons that have been treated earlier in this reasoning for a decision - more details see the contents of the decision to terminate the Prosecutor dated 03 / 12/09). The criminal procedure as above mentioned was much lived by the applicant Ylli Pango. Also, the court finds that the harm suffered by the plaintiff Ylli Pango is also another fact, namely that its image as a professor and author of books after the event has been severely harmed by being attacked in the media different analysts and politicians and was even tempted by certain persons and organizations with their shares until the suppression of scientific qualifications and the right to teach at the university he had.
In the court case, the court considers that he has his inner conviction that the harm suffered by the plaintiff Ylli Pango by the actions of the defendant reaches the value of 400,000 Euros. In this inner conviction legal estimate and measure the damage supra, this court takes into account judicial practice so far in our country, judicial practice, in the absence of tables and statistics on the minimum setbacks and the maximum compensation for non pecuniary damage, in each case was left to the assessment of the court determining the extent of the damage, depending on the circumstances of the case. Therefore, this court shows that the estimation and determination of the extent of the harm that the plaintiff should be compensated Ylli Pango, he considered the circumstances as follows:
- The court took into account the principle of full compensation of non pecuniary harm that is to say that of the equal worth of damage which means that the compensation of damages in this case should be directed back to the previous state of the individual claimant, so in a similar state as if the injury had never occurred. It has also been taken into account the principle of fair and objective compensation and the other principle that the compensation coherent (final or not) which implies compensation for damage so full and immediate cash for the return the previous state of the person affected.
- The court finds that the determination of the extent of compensation by the court in this case must be made primarily based compensation and satisfaction of the person affected, for such a function is estimated by the court is in full compliance with the standards of our civil law.
- The court took into account the importance of the illegal testified during this trial, which means that more is more is heavy civil restitution for the damage will be. In the court case, the court considers the fact as being quite important civil; which, from a legal perspective increases the value of compensation in respect of the person affected, that is to say the applicant Ylli Pango.
- In the court case, the court also takes into account the fault of the defendant and the shape of the fault where it is found that, among other, the actions of the defendant were committed on his part and through provocation and defiance of the applicant Ylli Pango.
- The court in determining the extent of compensation takes into account the moral and psychological suffering has the plaintiff suffered Ylli Pango by the event.
- Similarly, the court in determining the extent of compensation also reflects the qualities of the person affected is to tell the applicant Ylli Pango. It was at the material time in question a career politician, Minister, MP, academician and university professor for many years and had a series of studies and scientific titles, which were made during this trial. These qualities, as above mentioned Ylli Pango the applicant are deemed by the court as the factors that determine in this case increasing the measure of compensation for the damage against him.
- Apart from that, the court, in determining the extent of damages against the applicant Ylli Pango also takes into account how the commission of the injury and the means used. Influence the means used to determine the extent of compensation for damage, especially in the case to trial when there is harm was done to the plaintiff Ylli Pango in his personality and his honor. In the court case it is found that the injury in question was caused to the plaintiff Ylli Pango by means such as television and what is more, a television channel extensive inside and outside countries such as the television channel "Top Channel" SHA; television, aside from the large spread on the territory also has the largest audience in the public compared with all other TV stations, which increases substantially in this case the measure of compensation to the person affected, the applicant Ylli Pango.
- III-Regarding the third element of 'civil legal liability', that of the guilt of the talker of injury - and the court finds the inner conviction that the legal acts of the defendant illegal "Top Channel" SHA analyzed as above mentioned In this trial the subjective point of view have been committed "negligently" and it's also his "fault" comes the related consequence that is to say the damage to the tune of 400,000 Euros which was caused to Ylli Pango applicant. In this case, the court finds the defendant guilty "Top Channel" Sh.A in the fact that it is presumed a legal point of view that this defendant as any other subjects of civil law (whether people moral or physical) is aware of the contents of the Albanian legislation in force and the European Convention on Human Rights discussed above in the reasoning of this decision, which means that they were obliged to respect so this rigorous and not their Legislation that "undermine" or the "trampled". The court finds that "ignorance" of the current law does not discharge any individual (including the defendant "Top Channel" SHA) legal liability for civil compensation for damage in cases where existing law has been violated by the subjects and that following these transgressions of others have suffered injuries. Apart from that, it is fully proved that the trial audiovisual recordings of the defendant above were made through his "provocations" and "not in good faith" which makes this even more guilt of the defendant and his civil legal liability for the injury suffered by the plaintiff Ylli Pango. The court believes that by filming in through provocative actions of the defendant - then - the case in question dealt with the issue 'Fiks Fare' of the defendant no longer concerns the distribution of ideas' or a 'disturbing', but the distribution of images that are very personal and intimate about a person and concretely in the case to trial personal, family and private Ylli Pango the applicant as an individual. So, as seen in this file, the case has been customized so subjective and provocative by the defendant. Personalization as above quoted from the case by the defendant subjectively and provocative shapes the inner conviction of this court that the defendant "Top Channel" SHA in terms of consciousness and severity of the offense was fully aware of the harm that the plaintiff could suffer Ylli Pango by its illegal conduct, as has happened in practice. The court emphasizes that the provocative actions of the defendant "Top Channel" SHA in the event in question were clearly established also for the investigation of the criminal case of this event by the prosecution; Board who, at the end of Education, decided 'termination of the criminal case. " Thus, in the decision to terminate the prosecution of 03/12/2009 it is stressed among others that the audiovisual recording of the applicant Ylli Pango (at that time Minister) is initiated by the director of the program Cakuli Filip, initially it has been attempted through the so-called Alma Mukaj but later withdrew it, the recording being made by the journalist Alkid Budini, this last conversation with the applicant Ylli Pango with the phone card Alma Mukaj. It follows from the investigation of the criminal case with the prosecution that what is said above happened because: "Alma did not agree to participate in this trial organized by" Fiks Fare "and that in her attitude the Minister was correct and she no longer wanted to continue ". The court believes that this fact, noted above, clearly shows the insistent provocative actions against the claimant Ylli Pango. Similarly, the provocative actions of the defendant are also observed by this court in the "insistence" has shown the defendant to go to the private residence of the applicant Ylli Pango and save it there, in secret and without its it knows. These subjective attitudes and challenging the defendant's "Top Channel" to the plaintiff Sh.A Ylli Pango, among others, become credible to the court taking into account the "conflict" that has long existed between these two parties, therefore to request Ylli Pango by the applicant as the Minister of Tourism and Culture to "Top Channel" Sh.A for release by the latter premises of the International Center of Culture "Arbnori" which premises were leased by it (for details see the correspondence of nearly two years between the two parties to this case).
IV Finally on the fourth element of "civil legal liability," as the "causal link" (cause-consequence) - the court is satisfied that domestic law in this case the damage worth 400,000 Euros ( suffered by the plaintiff Ylli Pango) happened as a direct result of illegal and provocative acts of the defendant "Top Channel" SHA, committed by him for obtaining and distributing information about the individual, family and life Ylli Pango private plaintiff in obtaining such information, as stated earlier in the reasoning of this decision, in an unlawful manner by the defendant. Therefore, analysis of evidence obtained during this trial it is clear that these wrongful and illegal conduct of the defendant "Top Channel" SHA (discussed earlier in the reasoning of this decision) have been the determining cause and direct damage which 'the plaintiff has suffered Ylli Pango.
In conclusion, the court finds that the request for trial must be accepted as follows:
First: The defendant "Top Channel" SHA should be declared responsible for the commission of the injury to the plaintiff Ylli Pango, resulting from the publication of its share of inaccurate information, not real and obtained illegally by the defendant.
Second: The defendant "Top Channel" Sh.A must be legally obliged not to publish in future articles, interviews or comments to the plaintiff Ylli Pango, which, directly or indirectly may injure himself.
Third: The defendant "Top Channel" SHA should be legally obligated to pay plaintiff Ylli Pango compensation for damage caused as mentioned above, a value of 400,000 Euros. So for these three applications mentioned above, the court finds that the application should be accepted. While on the other part of the application, regarding the request for compensation beyond the above limits accepted by the court (the plaintiff Ylli Pango in judgment motion requests a total value of the damage of 1 (one) million Euros), the court finds that the application for this part should be rejected as unfounded, because the circumstances described earlier in this decision for the estimation of the damage, does not justify such a large extent of the injury that requires the portion plaintiff.
The court emphasizes that this ruling in place as stated above, it has been observed the public nature of the trial court, therefore, the hearings were held in a public manner, as provided in Article 26 / 1 of the Code of Civil Procedure. At the same time, it is explained by an interlocutory decision of that court reasoned, the trial proceeded without the presence of print media or electronic ones. This procedural note above was taken by the court at the request of the plaintiff, pursuant to Article 26 / 2 in conjunction with Article 173, paragraph 2 "dh" Code of Civil Procedure and in holding that it would be entirely in the interests of the ruling, the objectivity of this ruling, the court would avoid the bias and serve to make a neutral court. Meanwhile, after the end of legal proceedings and the filing of closing briefs of the parties, this court held that the deliberations of this court decision is rendered in the presence of print media and electronic ones.
Similarly, it is highlighted by the court, in the early days of this ruling, at the request of the plaintiff was made and approved the final clarification of the legal basis of the request, removing the initial qualification of the application sections 626.640 to 642 of the Civil Code and adding Article 625 / a of the Code. (For details see the tasks relating to the file and the minutes of the judicial hearing of 18.01.2010 and the decision means for this case reflected in the minutes).
FOR THESE REASONS
The court, based on Article 306 and following of the Code of Civil Procedure
DECIDED
The admissibility of the complaint as follows: The defendant's statement "Top Channel" SHA as responsible for the damage suffered by the plaintiff Ylli Pango, resulting from the publication by him of inaccurate information, not real and illegally obtained by the defendant . The obligation of the defendant "Top Channel" SHA not to publish in future articles, interviews or comments to the plaintiff Ylli Pango, which, directly or indirectly may injure himself. The obligation of the defendant "Top Channel" SHA to pay plaintiff Ylli Pango compensation for damage caused, as stated above, a value of 400,000 Euros (four hundred thousand). Rejection as unfounded the other part of the application on the demand of compensation beyond the above limits accepted by the court.
Court costs are borne by the defendant "Top Channel" sha.
Against this decision may be appealed to the Court of Appeal of Tirana within 15 days from the day of publication of this decision, while for the defendant "Top Channel" SHA (which was not present for the decision) the appeal period begins on the date of notification of this decision.
Published in Tirana today 18.06.2010
GREFIERE THE JUDGE
ELON ISUFAJ AGIM BENDO
V