Albania

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1. Introduction

a. Quick summary of the context (including the country’s recent history)

In the early 1990s the Republic of Albania abandoned its communist regime and started its transitions towards a western democracy. Since then, and despite some political instability, the Republic of Albania has been advancing towards that goal by adopting new European oriented laws. Criminality has been (and is) a constant issue during the last 25 years.

b. Type of system (common law; civil law; hybrid)

The Albanian legal system is one of civil law. Under the communist regime (prior to 1990s) the defendant in a criminal procedure had very few rights and the general idea was that people do not need to be defended against the state (this idea rested on the belief that the State bodies can only promote and never violate anyone’s rights). The democratic changes in the early 1990s affected the criminal substantial and procedural law. In 1995 Albania adopted new substantial and procedural laws regarding criminal offenses and procedure. The law Nr. 7895 dated 27.1.1995 “Criminal Code of the Republic of Albania” (as amended) (hereinafter the “CC”) and the law Nr.7905 dated 21.3.1995 on the “Criminal procedure code of the Republic of Albania” (as amended) (hereinafter the “CPC”) are the main acts governing criminal offenses and procedure.

c. The State Sponsored legal aid situation in the country: Every defendant in a criminal procedure is entitled, upon his request, to qualified lawyer (Art. 49 of the CPD). The Chamber of Advocates establishes a list of ex officio lawyers for this purpose and the Court appoints one of them to the defense of the defendant. If the defendant is unable to pay the lawyer, the expenses incurred for his defense are supported by the State.

i. NGOs providing pro bono legal aid: Some of the legal aid NGOs are: “Qëndra për Nismla Ligjore Qytetare”, Tirana Legal Aid Society (TLAS), Qëndra e Shërbimeve dhe Praktikave Ligjore të Integruara (QSHPLI) etc. iii. Number of lawyers (criminal/civil) if known: There is no exact figure about the total number of lawyers and attorneys practicing in Albania. The general feeling is that their number is large and increasing compared to the country’s population.

d. Sources of defendant’s rights?

i. National Sources of Defendant’s rights: The main national sources of the Defendant’s rights are the Albanian Constitution, the Code of Criminal Procedure and the Criminal of Code of Albania. The law No. 108/2014 “On State Police” (hereinafter “Law on State Police” or “LSP”) is also a relevant source as regards the pre-trial procedure along with the Law No. 8328 dated 16.4.1998 “On the rights and treatment of detainees and pre-trial detainees” as amended (hereinafter “Law on Detainees” )

ii. International Sources of defendant’s rights: The European Convention of Human Rights as well as the case law of the European Court of Human rights are the main international sources of defendant’s rights in a criminal procedure. Other international sources ratified by the Republic of Albania include:

- Convention of 25 October 1980 on International Access to Justice (adhered to in 2007); - Convention of 1 March 1954 on civil procedure - Hague Conference (adhered to in 2009); - Convention on Mutual Administrative Assistance in Tax Matters (adhered to in 2013); etc.

2. Pre-trial Procedures

a. Police procedures

i. Complaint/information: Every person has the right (at times the obligation) to report criminal offenses to the so called Judicial Police or Prosecution Office (Article 282 of the CPC).

ii. Arrest, Search and Seizure Laws

● Stops and Frisks: The Law on State Police does not regulate specifically the “stop and frisk” procedure. Nevertheless, several articles of law grant to the State Police very similar rights. For example Article 110 of the Law on State Police provides that the State Police may verify the identity of a person when such person a) is present or in the immediate vicinity of the crime scene and persons that have information about the circumstances of the event; b) to enforce against such person an order issued by the respective bodies; c) the person is suspected of breaching public order and safety d) the person enters or leaves the territory of the Republic of Albania d) considering the time and place, it is believed that the person is involved in illegal acts. Nevertheless, the State Police can conduct a body search only if the person is arrested (Article 113 of the LSP).

● Arrests: Any person may be arrested if he/she is caught in the act of committing a serious criminal offense (or right after doing so) (Article 251 of the CPC). A person may also be arrested if he/she is suspected of a crime for which the maximum jail sentence is 2 or more years.

● Pre-trial detention: The effects of pre-trial detention start at the moment of the arrest.

● Searches: The State Police may conduct a body search on an arrested individual if such search aims at avoiding a real and immediate danger, finding objects that may put in danger the person’s life or that of the others, ensuring evidence for a criminal offense (Art. 113 of the LSP). The body search procedure shall be conducted in respect of the person’s physical integrity and dignity. Premises (except one’s home, office etc) and cars may be searched by the State Police if there is a reasonable doubt that that inside may be the person for whom the Police is looking for or that the premise/car is being held illegally. The user of the premises/car has the right to be present during the search and may ask for a copy of record of the search explaining the reasons thereof. The home, office and similar premises of an individual may be searched by the State Police without the permission of the owner in such search is necessary to avoid an immediate danger for life and health (Art. 117 of the LSP), as well as in cases provided by the CPC (through a decision of the Court).

● Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures). Art. 151.4 of the CPC provides that evidence collected in breach of the law is inadmissible.

iii. Lineups and other identification procedures

● Lineups: Lineups are regulated by Articles 171 and 172 of the CPC. The Lineup procedure should be recorded in detail in a written record otherwise it is invalid.

● Other identification procedures: The CPC provides for the identification of voices, sounds or any other thing that me perceptible by senses (Art. 174 of the CPC).

iv. Interrogation

● Before formal charge in court: Pursuant to Article 108, an officer of the State Police may summon an individual to the police station in order to collect information about a potential violation of the law. Furthermore, Pursuant to Art. 112 of the LSP, after the arrest, the Police shall collect (among other information) details about the execution of the criminal offense for which the individual is arrested. Such details are collected and recorded in presence of the individual’s defendant (lawyer).

● After Defendant is formally charged: After formal charges are brought, the interrogation is regulated by Article 38 of the CPC et. seqq.. The defendants shall be free during the interrogation unless measures to prevent his/her escape are necessary. Techniques or methods to affect the defendant’s will or hi/her ability to remember and evaluate the facts are not allowed. The prosecuting body shall inform the defendant that he/she has the right not to answer. The prosecution body shall also inform the defendant about the acts that are attributed to him/her and notify the evidence that are against him as well as their source (when such fact does not harm the investigation).

● Enforcing the Rules (procedures to protect against illegal interrogation): There is no specific rule providing for the nullity of the interrogations, nevertheless such nullity may be raised on the grounds of Art. 151.4 of the CPC which provides that evidence collected in breach of the law is inadmissible. Furthermore, Article 128.c of the CPC provides that are utterly invalid all the acts conducted by the prosecution body in breach of the dispositions ordering the obligatory presence of the lawyer (interrogations at the police station).

b. Right to Counsel: A defendant may appoint up to 2 lawyers.

3. Rights of the accused at all times:

a. Criminal Law system i. Double jeopardy: Double jeopardy defense is provided by Article 7 of the CPC.

ii. Legality principle: The legality principle is provided by Article 2 of the Criminal Code which reads “No one can be criminally sentenced for an act that was not specifically qualified as a crime or misdemeanor under the law”.

iii. Presumption of innocence: Pursuant to Article 4 of the CPC the defendant is presumed innocent until his guilt his guilt has been established by a final court judgment.

iv. Standards of proof and standards for conviction: The prosecution has the burden of proof to establish that the defendant is guilty. Any doubt concerning the accusation is interpreted in defendant’s favor.

v. Procedure with witnesses: The procedure with witnesses is regulated by Article 153 to 165 of the CPC. Among many rules regulating the procedure, it may be pointed out that witnesses may not give testimony about hear-say or express personal evaluations (unless these may not be severed from the testimony). The persons indicted for a common criminal offense or in a connected case may not give testimony unless their innocence verdict is final and binding.

vi. Capital Punishment: Capital punishment has been abolished in Albania in the year 2000.

vii. Ex Post Facto punishment: Pursuant to Article 3 of the Criminal Code no one may be sentenced for an act which pursuant to the law in force at the relevant time, it was not qualified as a criminal offense. The new criminal law which abolishes a criminal offense has retroactive effect. Article 29 of the Albanian Constitution provides one exception to these rules regarding war crimes or crimes against humanity. These crimes may be prosecuted even if they were not considered as crimes by the national legislation in the time of their commission, provided that they were considered as crimes by the international law.

b. Fair Trial Rights

i. Freedom from prolonged pre-trial detention: Article 263 of the CPC provides for the limits of pre-trial detention depending on the defendant’s situation.

ii. Freedom from punishment:

Pursuant to Article 3 of the European Convention of the Human Rights (which is directly applicable in Albania) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

iii. Right to counsel: Any arrested person has the right to appoint up to 2 counselors and consult them as soon as they are arrested.

iv. Right to habeas corpus: Any individual has the right to complain and seek damages for unlawful imprisonment.

v. Right to medical care: An individual under custody or detention has the right to medical care at all time.

vi. Right to a fair trial: Article 42 of the Albanian Constitution as well as Article 6.1 of the European Convention of Human Rights provide the right to of any individual to benefit from a fair trial.

vii. Right to notice of charges: A defendant has right to be notified about the criminal charges brought against him/her (Article 34 of the CPC).

viii. Right to non self-incrimination: The right to non self-incrimination is recognized in Albania through many ways. Pursuant to Article 36 of the CPC a defendant’s declaration during the procedure in which had not the quality of defendant, may not be used as testimony in a subsequent procedure against him. Furthermore, Article 38.3 of the CPC provides that before interrogating a defendant, the prosecution authority shall inform him/her about its right to remain silent.

ix. Right to a speedy trial: Article 6 of the European Convention of Human Rights provides for any individual’s right to a trial within a reasonable time. Additionally, a defendant may request to be judged through a speedy trial pursuant to Article 403 et. seqq. of the CPC which allows him to benefit from a reduction of 1/3 of the criminal sanction.

x. Right to a trial by jury: The Albanian legal system does not provide for the right of a trial by jury.

xi. Right to impartial judge: The right to an impartial judge is provided under numerous domestic laws of Albania (most notably Art. 42 of the Constitution) as well as Article 6 of the European Convention of Human Rights.

xii. Right to appeal: The Albanian CPC (Art. 407 of the CPC) provides for any individual’s the right to submit a full appeal against a judgment, to submit an appeal on points of law in front of the Supreme Court of Albania as well as to submit a request for the reopening of the procedure.

c. Ways to protect rights

i. Exclusionary Rule or Nullity of Procedure: Art. 151.4 of the CPC provides that evidence collected in breach of the law is inadmissible. Additionally, the CPC provides specific nullities in many cases of breaches of the procedural law.

ii. Civil Action: Any person who was unfairly imprisoned may lodge a civil claim to obtain compensation. The civil law action for damages is also open to any individual who has suffered a damage from any private or public body.

iii. Motions: The defendant may submit motions to exclude specific evidence at the phase of discovery when the Court records the evidence on by one.

4. Rights in prison

i. Conditions of confinement : Article 24 of the Law on Detainees provides that premises in which the detainees and pre-trial detainees live shall be sufficiently spacious, illuminated, well aired and equipped with hygienic facilities. The Law on Detainees provides many more details about the minimal requirements on the detention facilities.

ii. Immigrant detention: The rights of detainees apply to all detainees without discrimination.

iii. Right to medical and mental health care: Detainees have the right to medical and mental care. The court may order a detainee to be transfered to the appropriate institution for the treatment of his conditions.

v. Women’s rights in prison: Female detainees have the right specific rights to counseling and to participate in special programes depending from their situation.

5. Court Procedures

a. Pre-Trial

i. Initial Court Appearance: As a general rule (Article 258 of the CPC) the defendant shall be brought before a court of law within 48 hours from his arrest in order for the court to validate or annul the security measure (arrest).

ii. Charging Instrument: The charging instrument is the accusation act which is notified to a defendant by the prosecution office (Art 34.1 of the CPC).

iii. Preliminary Hearing: During the preliminary hearing the court verifies that parties have received the notifications about the hearing and/or that they are present.

iv. Pre-Trial Motions: Preliminary motions may be submitted during the preliminary hearing with the regard to the court’s composition, jurisdiction, the merge or severance of connected cases and parties legal standing.

v. Discovery: Pursuant to Article 335 of the CPC parties have the right to consult and copy the case file of the procedure until the day of the preliminary hearing.

b. Trial

i. Nature of the Trial: The trial is presided by the chairman of the panel which issues orders to maintain order. Subsequently, the prosecutor shall make e brief description of the accusation act and all parties shall have the right to state their stance. After these declarations the Court will start recording the evidence to be included in the case file. Parties may suggest the collection and record of additional evidence.

ii. Defendant and Lawyers: The defendant and their lawyers have the right to submit motions, written submissions and discuss the arguments and evidence of the case file.

iii. Expert Witnesses: Experts are appointed and conduct their mission pursuant to Article 178 et. seqq. of the CPC. They may be questioned during the hearing.

iv. Victims: Victims of a criminal offense have the right to seek the prosecution of the offender and compensation for their damage (Art. 58 of the CPC). Victims have the right to suggestion the collection of specific evidence.

c. Sentencing: When a defendant is found guilty, the Court shall sentence him/her pursuant to the CPC and CC (imprisonment, fine etc).

d. Appeals

i. Right to Counsel: The right to counsel as described above applies in the same way to the appellate procedure.

ii. Ineffective Assistance of Counsel: The CPC and the CC do no regulate the ineffective assistance of the counsel. Nevertheless pursuant to Article 56 the prosecution office may refer to the chamber of advocates and breach of duty or obligations conducted by the counsellor of a defendant.

iii. Other Grounds for Appeal: Upon submission of an appeal, the Appellate Court shall review the case in all its elements despite the grounds of appeal. Judgments of the Appellate Courts may be contested in front of the Supreme Court by submitting an appeal on points of law (recourse). Judgment of the Supreme Court may be contested in front of the Constitutional Court of Albania as unconstitutional. After termination of the criminal procedure, any judgment that is final and binding may be subject of “request for review” pursuant to chapter IV of the CPC. Albania is also part of the European Convention of Human Rights since 1996 therefore individuals have the right to bring a case to the ECtHR within 6 months from the date of the decision of the domestic court of last instance.