Table of Content

• Comments
  • Purpose
    1. The provisions aim at avoiding any uncertainty in the implementation of the law at the time of its entry into force and in the transitional period until the establishment of the courts against corruption and organized crime, guaranteeing the proper application of the criminal procedural law.
  • Scope
    2. The scope of the transitional provision is to regulate, in particular, the following problems: 

    • the date of entry into force of the Law No.35/2017;
    • the procedural rules to be followed by the prosecution offices and the courts on cases under examination at the time the law enters into force, including the composition of the trial panel;
    • the validity of the acts and procedural acts performed according to the rules before the entry into force of the law.
  • Comments
    3. The amendments and addenda approved by Law No. 35/207 entered into force on 1 August 2017. Based on the recognized principle of timely action of the criminal procedural law, the new procedural norms begin to apply from the time of their entry into force.[1] The difference between the entry into force and the beginning of the application of the material and procedural law has been analysed several times by both the Constitutional Court (CC) and the United Chambers of the High Court (UCHC). In these decisions were emphasized that unlike the material criminal law, where it is applied the principle that the new law does not have retroactive effect, except in cases when it is in favour of the defendant, in the criminal procedure, the new law also has power over the procedural relations which have arisen before its entry into force, for cases under investigation or judgment, except when the law itself provides otherwise.[2]

     

    4. Delays of the full implementation of the justice reform laws have brought some difficulties for the criminal law practitioners.[3] However, it has to be pointed out that the fact that courts against corruption and organised crime are not established yet has an impact for interpretation of the subject matter competences of the courts of general jurisdiction as well as of the serious crimes courts which will cease to exist once courts against corruption and organised crime are established. For these reasons, the lawmaker has resolved the intermediary situation with the adoption of some transitional provisions, an acceptable solution in terms of legislative technique until the establishment of the new courts against corruption and organised crime and the Special Prosecution Office.

     

    5. Article 75/a of the CrPC, before amendments, provided for subject matter competences of the serious crimes court while latest amendments provide for the subject matter competence of the courts against corruption and organized crime.[4] This article (75/a), neither before or after the amendments, provided for the subject matter competence of the District Courts. Their subject matter competences were and are still provided in Article 74 of CrPC. Overall, it is important to mention that courts against corruption and organised crime does not assume completely subject matter competence of the serious crimes courts and that subject matter competence will be changed even for the district courts (mirroring changes in subject matter competences for the special court dealing with corruption and organized crime).

     

    6. Paragraph 1 of the transitory provision foresees competence of adjudication until the establishment of the Court against Corruption and Organized Crime: “…the criminal cases under its substantive jurisdiction according to the article 75/a of the Code amended by this law, shall be tried respectively by the Court of Serious Crimes and judicial district courts”. As said above, Article 75/a never regulated the competences of the courts of general jurisdiction. Having in mind changes in subject matter competences, between district courts and the special courts for corruption and organized crime (that has to be established), the only way to interpret paragraph 1 and the will of the legislator, is that all crimes foreseen in the amended Article 75/a, should be adjudicated by both jurisdictions: the serious crimes courts and district courts, the same as they were adjudicated up to the latest changes.^[5] This means that until the establishment of the special court, the Court for Serious Crimes and the courts of judicial districts continue to maintain their subject matter competence.[6] The same conclusion as from paragraph 1 comes out also from the paragraph 2 of the same article. From its contents it comes clear that all cases that are pending trial before the court of general jurisdiction (district courts) at the time of the establishment of the courts against corruption and organized crime, will be finished by the same courts, meaning the respective district courts.

     

    7. Thus, paragraph 2 of the transitory provision resolves two problems: a) as already briefly mentioned, the competence of the trial of cases, which at the time of the establishment of the courts against corruption and organized crime are still in the trial process, at the courts of general jurisdiction of the first instance or appeal and b) the competence of the trial of cases examined by the courts of general jurisdiction for which retrial was decided after the establishment of the courts against corruption and organized crime. In these cases, the lawmaker has foreseen that all these cases shall continue to be tried by the same courts, thus avoiding, on one side, the transferal of cases from the district courts to the special courts (which would cause confusion and, eventually, delays in the trial) and, on the other side, the unnecessary burden and, eventually, the blocking of the work of the courts against corruption and organized crime with cases tried before their established. The cases that have been adjudicated by the courts of general jurisdiction, but are returned for retrial, after the establishment of courts against corruption and organized crime, will be re-adjudicated by the courts of general jurisdiction. It seems that the lawmaker has wanted to avoid the problems encountered in court practice regarding the implementation of changes of the rules on subject matter competence, for cases that are returned for retrial after the amendments made.[7]

     

    8. The lawmaker has not been expressed about the situation when the case, which is returned for retrial after the establishment of the courts against corruption and organized crime, has been adjudicated by the court for serious crimes, considering that in this case the general rule on subject jurisdiction applies, according to which the cases will pass for retrial to the court having the subject matter competence at the time of taking the decision for retrial. It will be, on a case-by-case basis, either a court of general jurisdiction (according to territorial jurisdiction) or the court against corruption and organized crime. This division will be made on the basis of the provisions of Article 75/a of the CrPC, as amended.

     

    9. In addition, the lawmaker has been silent on cases that, at the time of the establishment of the courts against corruption and organized crime, are still in trial at the courts for serious crimes, at first instance or at appeal. As these courts cease to exist, it is clear that in the transitional period, the cases at trial will have to be transferred, according to the competences assigned by Article 75/a, respectively, to the First Instance Court or to the Court of Appeal against Corruption and Organized Crime and the courts of general jurisdiction, according to the territorial jurisdiction of the latter. Thus, a case at trial, for example, with accusation under Article 109/b of the Criminal Code (Forcing through blackmail or violence to give out the property) will be transferred to the court of ordinary jurisdiction to which the territorial jurisdiction belongs, at the time of committing the crime. In addition, a case at trial, for example, with the accusation under Article 319/ç of the Criminal Code (passive corruption of judges, prosecutors and other officials of the justice system) will be transferred to the courts against corruption and organized crime. In this case, the rule followed is the ordinary one, usually applied in cases of merging of the competent institutions, according to which the rights and obligations of the institution that ceases to exist pass to an existing or recently established institution, according to the relevant competence.

     

    10. Paragraph 3 of transitory provisions stipulates that the acts carried out and the evidence obtained before 1 August 2017, both in trial and during the preliminary investigations, will be valid and usable, even when Law No.35 / 2017 provides various adjustments. For acts carried out starting from August 1, 2017, it is understood that the new rules will apply (tempus regit actum). With this regulation, the lawmaker starts from the purpose to maintain the validity of the acts and the usability of the evidence received prior to the entry into force of the amendments, especially in the case when the amendments to the law bring completely different regulations to an important category of procedural actions. Thus, the taking of biological samples requires compliance, with the consequence of uselessness, as regulated by Article 201/a. This does not mean that biological samples, taken according to the procedure before the amendments, are unusable, automatically. The same may be stated of the act of the defendant’s questioning, who was not given in writing the letter of rights (Article 34/a). However, after the entry into force of the amendments, the prosecution office and the court should interpret the amendments in favour of the accused (in favor rei), giving the defence the opportunity to benefit from the amendments in the guaranteeing sense.

     

    11. Transitory period in regard to the subject matter competence for prosecution offices is regulated in the paragraphs 4 and 5 of this article. The same logic followed in the trial cases before the establishment of the courts against corruption and organized crime, has been also followed by the lawmaker in paragraph 4. This paragraph stipulates that, until the establishment of the Special Prosecution Office, the prosecution office at the First Instance Court for Serious Crimes and Prosecution Offices at the Courts of the Judicial Districts maintain the subject matter competence assigned by Article 75/a of the Code, before amendments made with Law No. 35/2017. Thus, this provision regulates two situations: a) the competence to investigate proceedings that are being investigated by the Prosecution Office attached to the Court of First Instance for Serious Crimes and prosecution offices at the courts of judicial districts at the time of the entry into force of Law No.35/2017, and b) the competence of these prosecution offices for the investigation of criminal proceedings that will be registered from 1 August 2017 until the establishment of the Special Prosecution Office. However, the most important rule is that the transitional provision does not anticipate any transfer of proceedings under investigation from the Prosecution Office at First Instance Court for Serious Crimes to the prosecution offices at the courts of judicial districts and vice-versa. Such a need does not arise, since it is not related to the aim of the norm, therefore the lawmaker did not see it reasonable to adopt transitional provisions for this case. In this logic of the norm, the cases still under investigation, with accusations under Article 283/a of the Criminal Code (trafficking of narcotics), will continue to be investigated by the Prosecution Office at the First Instance Court for Serious Crimes and, since the courts against corruption and organized crime are not set up yet[8], will be sent to the First Instance Court for Serious Crimes.

     

    12. Paragraph 5 of Article 525 of the CrPC resolves the problem of investigative competence and the rules of transfer of proceedings still under investigation at the Prosecution Office attached to the First Instance Court for Serious Crimes and the prosecution offices attached to the in the courts of judicial districts (of general jurisdiction), at the moment of establishment of the Special Prosecution Office. Therefore, upon establishment of the Special Prosecution office, when the proceedings are of the subject matter competence of that prosecution office, the Prosecution Office attached to the First Instance Court for Serious Crimes will transfer these proceedings to the Special Prosecution Office. At the same time, the same prosecution office, if the case does not belong to the subject matter competence of the newly established Special Prosecution office, will transfer the proceedings, to the prosecution offices at the courts of judicial districts but taking into account the territorial competence at the time of commission of the offense. Further on, the prosecution offices attached to the courts of judicial districts will transfer proceedings to the Special Prosecution Office, when criminal offenses belong to the subject matter competence of that newly established Special Prosecution office.

     

    13. The logic of the transitional norm rests on the Constitution of the Republic of Albania. The Constitution foresees the establishment of the special courts against corruption and organized crime only after establishment High Judicial Council. Further on, the Special Prosecution Office is foreseen to be established only after the establishment of the High Prosecutorial Council. For the special courts and Prosecution Office, the Constitution foresees special recruitment criteria for magistrates and special subject matter competences. For this reason, the serious crimes courts or prosecution offices attached to the First Instance or Appeal Courts for Serious Crimes cannot be provided the same from the point of view of subject matter competences as the future special courts or Special Prosecution office that still need to be established.[9] It is important to point out also that Constitution in its Article 141 has removed initial jurisdiction of the High Court. Bearing in mind this constitutional amendment, the lawmaker expressed the will that upon the entry into force of constitutional amendments, for the cases of initial jurisdiction still in the trial process, the High Court had to declare its incompetence, by sending them to the competent courts in the subject matter and territorial aspect.[10] Therefore, even though the lawmaker did not regulate with transitional provision a legal situation provided for already by Article 141 of the Constitution, according to the same logic analysed above, for the cases under investigation in charge of the special subjects, the General Prosecution Office should have also notified the functional non-competence by sending the acts to the competent prosecution offices, according to the subject matter and the territorial competence.[11] 

     

    14. Paragraph 6 of this transitory provision repealed paragraphs 6, 7 and 8 of Article 57 (transitional provision) of Law No. 95/2016 “Law on the organisation and functioning of institution for combating corruption and organized crime” which determined the termination time of the existence of the courts for serious crimes. This means that Law No. 9110, dated 24.7.2003, “On the organization and functioning of courts for serious crimes” was not repealed “at midnight on the 300th day after the entry into force of this law”, i.e., on 1 September 2017. As a consequence, the competences of courts for serious crimes cannot and shall not automatically pass to courts against corruption and organized crime (paragraph 7). In addition, neither the transfer of cases from one court to another nor from the existing prosecution offices to the Special Prosecution Office will be made, as stipulated in paragraph 6 of Article 57 of Law No. 95/2016. However, the mediation situation will be resolved in accordance with the transitional provisions of Law No. 35/2017, dated 30.3.2017 “On some addenda and amendments to Law no. 7905, dated 21.3.1995, “Criminal Procedure Code of the Republic of Albania”, as amended”.

     

    15. Paragraph 7 of Article 525 of the CrPC regulates the composition of the trial panel, aiming to correct a discrepancy situation between different laws. Articles 13, 14 and 14/a of the Code bring significant novelties in terms of the composition of the panels in different cases. Thus, the courts against corruption and organized crime will adjudicate with three judges, both in the first instance and in the appeal, while the courts for Serious crimes adjudicated with trial panels composed of five judges. The High Court reviewed the recourses in the counselling room with a panel of five judges, and with the entry into force of the amendments they will be tried by a three-judge panel.[12] Judicial practice will surely face situations when cases tried by the Courts for Serious Crimes, by a panel of five judges, may be retried, after annulment of the decision, by the courts against corruption and organized crime, which will now have adjudicating panels composed of three judges. For these reasons, paragraph 7 of Article 525 stipulates that the composition of the adjudicating panels will be regulated according to the provisions of Law No.35/2017, despite different provisions in other laws.

     

    [1] In different texts of the law, this principle is expressed in the Latin phrase tempus regit actum: see A. Gaito, Criminal Procedure, Itinera, Guide giuridiche Ipsoa, E-book, Wolters Kluwer, 2015, page 58.

    [2] See the decisions of the Constitutional Court (CC) no. 106, dated 27.05.2002, Kaçani and no. 11, dated 23.04.2009, Bazelli, and the Unifying Decisions of the United Chambers of the High Court (UCHC), No.1, dated 16.04.2004, Ndreu and No.3, dated 06.12.2013, Ajdari.

    [3] See more in the historical part of the comment

    [4] Article 75/a as amended, foresees the same subject matter competences for the Courts against Corruption and Organised Crime as foreseen in the Constitution (Article 135 paragraph 2).

    [5] This means for example, that “Murder committed under other qualifying circumstances” (Article 79 of the Criminal Code) that by the “old” provisions of the CrPC was adjudicated by the Serious Crime Court, will still be adjudicated with the same court while crime of “Active corruption of persons exercising public functions” (Article 244 of the Criminal Code) will stay under adjudication of the District Courts. 

    [6] This comes also from the Constitution, more elaborated in the historical part of the commentary

    [7] See Decision No.11, dated 23.04.2009 of the Constitutional Court (CC), Bazelli, and Unifying Decision No.1, dated 16.04.2004 of the United Chambers of the High Court (UCHC), Ndreu.

    [8] See more historical part of the comment

    [9] See more in historical part

    [10] Indeed, it later did so, but wrongly sent them to the First Instance Court for Serious Crimes.

    [11] In fact, it was followed the same wrong practice as followed by the High Court.

    [12] Law No. 98/2016 “On the organization of judicial power in the Republic of Albania”, Article 31, paragraph 3 provides that cases tried by the courts against corruption and organized crime are adjudicated by the High Court with a panel composed of five judges (in addition, the cases of recourse in the counselling room).

  • Historic context
    16. Criminal Procedural Law with its amendments was one of the justice reform laws together with law No 76/2016 “For some additions and amendments to Law No. 8417, dated 21.10.1998, Constitution of the Republic of Albania, as amended”, Law No 115/2016: “On Governance Institutions of the Justice System”, Law No 96/2016 “On the Status of Judges and Prosecutors in the Republic of Albania” etc, and therefore interpretation of the transitory provisions of the amendments to the CrPC have to be seen also together with the other changes brought up in the justice system in Albania during 2016 and 2017. One of the important novelties brought up by the Constitution is re-evaluation system of judges and prosecutors in order to establish proper functioning of the rule of law. This re-evaluation is carried out in accordance with the Law, but before establishing new institutions foreseen in the Law No 115/2016“On governance institutions of the justice system”.

     

    17. One of the institutions that are foreseen to be established with Law No 115/2016 “On governance institutions of the justice system” is High Judicial Council. The judge members of the HJC are subject to the transitional evaluation in accordance with the law as foreseen in paragraph 5 of the Article 179 of the Constitution. In early 2018 the process of the transitional evaluation of the candidate judge members was still ongoing. Moreover, according to Article 277 paragraph 2 Governance Law, the HJC is established only on the day when the last member is elected by the competent authorities. Therefore, at the beginning of 2018, the HJC was not yet established.

     

    18. Article 135 of the Constitution foresees that judges of the special court against corruption and organized crimes will be appointed by the High Judicial Council according to the Law. Therefore, as long as HJC is not established (as determent by the Constitution) the judges cannot be promoted to the courts against corruption and organised crime. Only once this promotion is completed these courts will start to operate and the serious crimes courts cease to exist. This interpretation is confirmed by Article 179 paragraph 8 of the Constitution which clarifies that: “The Serious Crimes Court of First Instance and the Serious Crimes Court of Appeal shall assume the name, function and competence of the first instance court and appeals court within 2 months of the establishment of the High Judicial Council, in accordance with the law”. Further on, following the same logic as for the Courts, Constitution provides for that Serious Crimes Prosecution Office will cease to exist once Special Prosecution Office is established. All this brings us to the conclusion that until the new institutions are established some of the justice reform laws, even though are in place are not able to be fully implemented.

     

    19. We can say that the adoption of transitional provisions was dictated by the need to regulate the competence to carry out preliminary investigations and the adjudication of cases, for the intermediary period from the entry into force of the amendments August 1, 2017) until the establishment of the Courts against Corruption and Organized Crime and Special Prosecution office.
  • International acts
    No Comment
• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  20. The ECHR observes that the principle that the rules of the criminal procedure should be defined in the law and this is a general principle of the law, intended to protect the defendant, whose interests may be affected by the uncertainty of the procedure (Cöeme )[1].

   

  [1] Cöeme and others versus Belgium, §102, application No. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, 22 June 2000.

• Legislative material
  No Comment
• Related articles

  Constitution: Article 42, paragraphs 2 and 141.

  The European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 6 §1, Right to a fair trial;

  Law No. 95/2016 “On the organization and functioning of institutions combating corruption and organized crime”, Article 57, paragraphs 6, 7, 8;

  Law No. 98/2016 “On the organization of the judicial power in the Republic of Albania”, Article 31, paragraph 3;

  Law No. 115/2016 “On governance institutions of the justice system”;

  Law No. 96/2016 “On the status of judges and prosecutors in the Republic of Albania”.

• Sublegal acts
  No Comment
• Decisions

  Decisions of the High Court 

  Unifying Decision No.1, dated 16.04.2004 (UCHC), Ndreu;

  Unifying Decision No.3, dated 06.12.2013 (UCHC), Ajdari

   

  Decisions of the Constitutional Court 

  Decision No.106, dated 27.05.2002 (HC), Kaçani;

  Decision No.11, dated 23.4.2009, Bazelli.

   

  Decisions of the European Court of Human Rights 

  Cöeme and others versus Belgium, Applications no. 32492/96 32547/96, 32548/96, 33209/96 and 33210/96, decision dated 14 October 2000, http://hudoc.echr.coe.in t/fre?i=001-63450 (last visit on 29.8.2017);

• Literature

  Gaito Alfredo, Criminal Procedure, Itinera, Guide giuridiche Ipsoa, E-book, Wolters Kluwer, 2015, pages 58-68.

• Archive
  No Comment