KOMENTARI ELEKTRONIK
CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ALBANIA   |   7905

Article 128-a: Absolute invalidity

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1The procedural acts shall be absolutely invalid (null and void) when the provisions concerning the following are not observed:

arequirements to be a judge in an actual case and the minimum number of judges to establish judicial panels pursuant to the provisions of this Code;

bthe prosecutor’s prerogative to conduct the criminal prosecution and to participate in the proceeding;

2A procedural act qualified by law as absolutely invalid (null and void) cannot become valid.

Table of Content

      1. The provision has a guaranteeing character and seeks to achieve the required balance between the need for effectiveness and speed of court proceedings and the right of the accused party not to be tried on the basis of absolutely invalid acts affecting its essential interests. It aims to guarantee the security of a due legal process, avoiding arbitrariness. The possibility of returning the proceeding back in the case of finding an absolute invalidity is a guarantee for the person’s protection from the abuse of the process, although it has an inevitable impact on the length of the trial and may delay its conclusion within a reasonable time.[1]

       

      [1] Article 28 paragraph 3 of the Constitution

      1. The object of the norm provided by Article 128/a is to define the concept of absolute invalidity of criminal procedural acts. From the content of the norm, it appears that the absolutely invalid acts are of a general nature and are related to the main subjects of the proceedings: the judge, the prosecutor, the defendant and his defense counsel, as well as the victim.

       

      1. The provision rules for the impossibility of their correction, which serves as the first distinction, conceptual and practical criterion, among cases of absolute invalidity and possible cases of relative invalidity, the regime of which is provided in Articles 129 and 130 of the Code.
      1. The regime of absolute invalidity of criminal procedural acts is expressly normed in Article 128/a of the Code, following the last amendments. The lawmaker relates the cases of absolute invalidity only with the main subjects of the proceedings: the judge (letter a), the prosecutor (letter b), and the defendant, the victim or the defense counsel (letter c), when his presence is compulsory by law.[1] The developing technique of these cases, without referring to the special provisions of the Code, indicates that cases of absolute invalidity are cases of a general nature, because the specific provision violated, that produces absolute invalidity, remains to be found, construed and enforced, case by case, by the implementers of the Code.

       

      1. The sanction of absolute invalidity protects the fundamental interests of the accused party and the victim related to the fundamental principles of the criminal process, therefore paragraph 2 of Article 128/a imposes a firm sanction: “A procedural act qualified by law as absolutely invalid (null and void) cannot become valid.” This means that absolutely invalid acts cannot be corrected, according to the rules normed by Article 130; the only option is to make the act again from the very beginning, after the proceeding turns back, exactly at the phase where the absolute invalidity was caused. The Albanian system of invalidities of criminal procedural acts is a binary type system, which separates them clearly into absolute (general) and relative (specific) invalidity.

       

      1. Absolute invalidities comply with the principle of taxativity, as set out in Article 128. This means that it is not possible to claim the invalidity of such nature outside the general cases, provided expressly in Article 128/a paragraph 1, letters a), b) and c). The absolute invalidities of the criminal procedural act, in a clear distinction from the relative ones, are subject to a legal regime that is characterized by these essential features: 
      • are also claimed ex officio by the body before which the case is found, even when the interested party, whose interest is prejudiced by the invalid act, does not act;[2]
      • are claimed in every state and instance of the proceeding; no strict terms are anticipated for them, the overcoming of which could cause the loss of the right to claim them at a later time;[3]
      • there is no possibility of correcting them; an absolutely invalid procedural act cannot be made valid. The only way is to return the proceeding to the phase where the invalidation and reinstatement of the act from the beginning were caused.

       

      1. At the preliminary investigation phase, the assessment and the declaration of absolute invalidity is made by the prosecutor,[4] whereas at the preliminary hearing or during the judicial examination of the case, their assessment and declaration is made respectively by the judge of the preliminary hearing[5] or by the court. Absolute invalidity should be ascertained mainly by the prosecutor or the court even if the interested party is not able to ascertain and to claim it.

       

      1. The first part of paragraph 1 letter a) refers to the very important case of fulfilling the conditions for being a judge of a particular case, in terms of the ability to acquire this right, but also in terms of the obligation to exercise it, in full respect of the norms established by the juridical order. The conditions for gaining the right to exercise jurisdictional functions are provided in Law No.96/2016 “On the Status of judges and prosecutors in the Republic of Albania”. On the criterion of fulfilling the conditions for being a judge in a specific case, discussions have been held in our judicial practice regarding the case when a judge, member of the panel, elected by lot, for various reasons, is replaced by another judge, but who had not been selected according to the lottery procedure. In such cases, the criminal college of the High Court has found absolute invalidity,[6] while the United Colleges of the High Court have come up with a unifying decision.[7] Law No.98/2016 “On the organization of the judicial power in the Republic of Albania” foresees in its Article 25 that more detailed rules on the program and procedures on the allocation of judicial cases will be established by the High Judicial Council. However, even though these rules have still not been elaborated, we can say that the violation of the rule for the election of a judge by lot, as foreseen in Article 25 of Law No.98/2016 “On the organization of the judicial power in the Republic of Albania”, violates the “requirements to be a judge in an actual case”, with the consequence of absolute invalidity of the act, pursuant to Article 128, paragraph 1, letter a) of the CrPC.

       

      1. The requirements to be a judge in an actual case are fulfilled or not, depending also on the fact of his/her previous participation in the proceedings. Their observance provides the judge with the fulfillment of the obligations determined by the Constitution and the law, guaranteeing his position above the parties in the process. The purpose of the norm is to ensure the principle of impartiality and objectivity of the judge in the trial process. These conditions are provided in Article 15 of the CrPC. Article 15 rules the noncompliance of the judge with the exercise of functions, hence the requirements to be a judge in an actual case “due to participation in the proceedings”, providing three special cases which, in conjunction with Article 128/a paragraph 1, letter a), in case of noncompliance, bring absolute invalidity. In these cases, the situation regulated by Article 16 of this Code is added to these cases. Further on, paragraph 1 of Article 15 explicitly forbids that the same judge who has given or has participated in the decision at one instance of the trial may exercise the functions “at other instances of the trial or in retrial or review after the final decision”[8]. A judge who has been pronounced by decision at one instance of the trial, during the trial in another instance or in a retrial after the revocation, can hardly remain unaffected by the solution given to the issues of fact and of law in the previous trial. [9] However, even if he/she were to change their opinion due to the principle of objectivity, a judge who resolves the same case in different ways becomes unreliable to the parties and to public opinion. We note that the provision obstructs the judge “who has given or has participated in the decision ...” at one instance of the trial. The grammatical and logical interpretation of the norm leads to the conclusion that the judge, who may have participated in the trial, but was not part of the judicial panel rendering the decision, is not obstructed. We deem that such interpretation is fair, because only in the process of receiving and announcing the decision, the judge shows to the parties and the public his position on the issues of fact and law that he has considered. Thus, there is no obstacle to participating in the other instances of the trial or in retrial or review after the revocation of the decision, for the judge who, although having participated in the judicial examination, was not part of the decision-making at the end of the process.[10] Thus, the Constitutional Court abolished as incompatible with the Constitution a decision of the criminal college of the High Court, because one of the judges who had tried the applicants’ case during the trial in appeal, also participated in the composition of the judicial panel which decided in consultation chamber, the rejection of the recourse submitted by them.[11] The Constitutional Court returned to the principle of impartiality of the judge, in the objective and subjective sense, in some of its decisions. For illustration, we are mentioning a decision of the year 2010,[12] particularly clear in terms of implementing the principle in question. However, in some subsequent decisions, it appears that the Constitutional Court has lost its coherence by taking decisions contrary to clear jurisprudence, established by it over the years for similar cases. For example, in the case when the same judges who resolved the very basis of the case at first instance also examined the request of the same subject for the reinstatement of the right to appeal, the Court did not find impartiality, establishing the concept of “assessment for various facts”.[13] In other words, if the same court takes under review and decides on various facts, though related to the same case, the guarantees of impartiality are not affected.

       

      1. As a problem closely related to the conditions for exercising the functions of a judge in a specific case, the judicial practice has also proposed cases of trial by an incompetent court in the subject matter. According to the Constitutional Court,[14] in decisions delivered before latest amendments to the CrPC, the “expression” “court … appointed by law” in Article 42/2 of the Constitution covers not only the legal basis for the existence of the court itself, but also the composition of the panel charged with reviewing each specific case”[15]. This idea was further developed in 2009 when the Court emphasized that “... if a court has no jurisdiction/competence to adjudicate the defendant in accordance with the provisions applicable under the relevant legislation, it is not” established by law “within the meaning of Article 42/2 of the Constitution and Article 6/1 of the European Convention”.[16] The case in question relates to an issue that was tried by the court for serious crimes, although under the applicable law, at the time of the case trial, the subject matter competence belonged to the ordinary courts of judicial districts.[17] The Constitutional Court has emphasized that the obligation to comply with the boundaries within which judicial jurisdiction is exercised is an issue related to Articles 4/1 (principle of legality) and 34 (principle ne bis in idem) of the Constitution, therefore the exercise of the jurisdiction beyond the competences defined by law may be examined when the violation of the procedure violates the constitutional rights for a due legal process,[18] as it relates to the respect of the right to be tried by a court designated by law. Following such idea, that Court concludes that the violation of the rules on the subject matter competence causes absolute invalidity, in contrast to the violation of the territorial competence, which causes invalidity of the relative nature.[19] Such approach finds support in Article 83 of the CrPC, which rules a different juridical regimen of establishing subject matter and territorial incompetence: in the first case, even ex officio, in any state and instance of the process (typical of absolute invalidities), while in the second case, by the interested party and only before the judicial examination (typical for relative invalidity) has commenced. The jurisprudence of the Constitutional Court, regarding the relationship between the violation of the rules on subject matter competence and due legal process, has been applied in several decisions of the criminal college of the High Court[20]. Two cases are almost identical to the case of Bazelli,[21] whereas in another case,[22] although not the essential cause of annulment of the decision, the college found absolute invalidity because the defendant was not tried in the first instance by the military court, but by the court of ordinary jurisdiction. Thus, while these decisions have been brought before amendments to the CrPC, we believe that the same criteria of absolute invalidity of the act, in each respective case, pursuant to the Article 128/a of the CrPC - will apply.

       

      1. Paragraph 2 of Article 15 of the CrPC brings two novelties. The previous norm excluded from participation in the trial the judge of the preliminary investigations who reviewed the requests submitted by the prosecutor. At present, he is excluded from the trial also when reviewing the requests of one of the parties to the proceeding (i.e. also the requests of the defendant). Moreover, the incompatibility of the judge of preliminary investigations with the judge of the preliminary hearing, in the same proceeding, is also normed. The norm intends that the judge of the foundation trial be placed in the psychic situation of the lack of prejudice of the facts subject to the charge and of any element with evidence value that may go both in favor of the defendant and against his interests. For this reason, he should not be introduced from the phase of preliminary investigations with the facts and evidence; they must be presented by the parties, at trial, in full equality between them. This is the reason of the norm, which prevents the participation in the foundation trial of the judge who has deemed each request of the parties at the investigation phase, with the aim of ensuring his impartiality in the foundation trial, as a very important element of the due legal process (Hauschildt).[23] Following the same logic, the judge of preliminary investigations, familiar with the acts, cannot be the judge of the preliminary hearing, who evaluates the proposed resolution by the prosecutor at their conclusion. The norm makes a meaningful determination, specifying that the above rules apply when dealing with “the same proceeding”, they do not apply in cases when the proceedings involving the judge are different. This is a very important definition, which should be specifically emphasized. The criterion that is followed in order to distinguish one proceeding from another comes from the study of the material element of the crime under investigation (or adjudication) in its three objective components: criminal act, consequence and causal connection.[24] Regarding the competence to review cases related to personal freedom by the court that adjudicates the case, the criminal college has established a broad judicial practice.[25] Thus, personal security measures may also be required at the trial phase of the case, and this does not render non-compliant the court examining the foundation. In addition, the courts emphasize that the judge is non-compliant with the adjudication of the case when he expresses his opinion regarding the security measure; in a case when the judge who was part of the college of the Court of Appeal who examined the appeal against the security measure, but did not express himself because the defense counsel withdrew the appeal, the criminal college of the High Court deemed that he was not prevented from participating in the foundation trial.[26]

       

      1. According to the amended provision of paragraph 3 of Article 321, the court which will adjudicate the case, will be the same court that will take evidence. However, a judge who accepts a request for the provision of evidence, in the sense of Article 15 paragraph 2, is incompatible with the composition of the court, both in the trial hearing and in the trial of the foundation. Meanwhile, he does not have any obstacles to proceed with the examination of any request of the parties during the preliminary investigations, in the same proceeding. The reason for this change stems from the fact that the provision of evidence is nothing more than one part of the judicial review, which, for the reasons provided by the law, is carried out since the phase of preliminary investigations. In the case of declarative evidence, such as the testimony, the direct perception of the judge is of great importance, in order to then ajudicate the credibility of the witness. Thus, the provision of evidence must be made by the same court that will examine the foundation of the case and there is no inconsistency or infringement of the due legal process. Contrary, if it were to proceed otherwise, absolute invalidity could be caused due to the composition of the court.[27]

       

      1. Minimum number of judges necessary to establish the judicial panels pursuant to the provisions of this Code is the second criteria foreseen under paragraph 1 letter a) of this Article. The number of judges in the panel is provided for in Article 13 and 14 of the CrPC. Here it has to be stressed that, according to Article 13, paragraph 3/1 of the CrPC, it is foreseen that the Anticorruption and Organised Crime Court rules with a judicial panel composed of three judges. This provision differs from provisions on the number of judges of Article 24 paragraph 3 of Law No.98/2016 “On the organization of the judicial power in the Republic of Albania”.

       

      1. Paragraph 3 of Article 15 prevents the exercise of a judge’s function by a person who, “in the same proceeding”, has performed the duty of the prosecutor or has committed judicial police actions or has been a defense counsel, representative of a party or witness, expert, victim or person who has filed a criminal report or complaint. Also, this norm, which in case of disrespect is sanctioned with absolute invalidity, aims to put the judge in the position of the third person on the parties in the process. It is based on the rule that the basic procedural functions should be charged to different subjects, because it cannot be a question of the role of the judge on the parties when, in the same proceeding, he may have performed other procedural functions (prosecutor, judicial police officer, expert, etc.), or when he is summoned to adjudicate his case (denunciator, victim, etc.). Referral to the term “proceeding” indicates that the rule is not valid only for the foundation trial, but also for the adjudication of each request of the parties at the phase of preliminary investigations. For cases of non-compliance of this nature there has been no judicial practice.

       

      1. Article 16 of the Code prevents the participation in the proceedings of judges, who, either between them or with other participants in the process, are in family, kin or in-law relations. Such prohibition, sanctioned with absolute invalidity in conjunction with Article 128/a paragraph 1, letter a), aims to ensure the principle of the impartiality of the judge in the proceeding. Regarding the use of the term “proceeding”, the same remark can be made. Even for hypotheses of this nature, clearly expressed by the norm, we have not been able to find illustrative cases of the judicial practice. However, the jurisprudence of the Constitutional Court strongly emphasizes the importance of the principle of impartiality in the objective sense, which requires that justice should not only to be done, but should also be seen that it is being done, both by the parties and by the public.[28]

       

      1. The cases of absolute invalidity related to the prosecutor are provided in Article 128 paragraph 1, letter b). Absolute invalidity related to the prosecutor may be claimed or found in two cases: when the prosecutor’s right to prosecute is violated or when his participation in the proceeding is violated. The prosecutor is the only subject to whom the Constitution[29] and the CrPC recognize the power to prosecute. The meaning of the provision is clear: the prosecutor is the only subject of the criminal proceeding that has the right to draft a charge and to evaluate, at the end of the investigation, whether to request that the case is sent to court or decide on its cessation. The Code also gives the prosecutor the right to undertake, in certain cases, initiatives to open the path for special trial rites.[30] For this reason, the cases, when the right that the law gives to the prosecutor to fulfill his accusing function is violated, are sanctioned with absolute, incorrigible, invalidity.[31] In a process of the parties, the participation of the prosecutor in the proceeding is important. Except the cases when the court examines requests drafted by the prosecutor (security measures, requests for delivery of the case to the court, requests for obtaining evidence, hearing of the final discussion, etc.), the Code provides several cases that rule the opinion of the prosecutor.[32] However, it will be the judicial practice that will determine if the prosecutor’s omission will have to be considered non-participation in the proceedings, with the consequence of absolute invalidity under Article 128/a paragraph 1, letter a) of the CrPC.[33]

       

      1. Cases of absolute invalidity related to the defendant, his defense counsel and the victim are provided by Article 128/a paragraph 1, letter c) of the Code. The right of the defendant to participation in the process conducted against him/her is the materialization of the right to self-defense, known at the level of a consistent principle of domestic law, and in a series of international documents and charters. The Constitution, in its Article 31, provides the right of anyone who is accused to defend himself personally or through a legal defense counsel, providing sufficient facilities to truly exercise that right, and sanctioning the principle of contradiction in its Article 33: “everyone has the right to be heard before being judged”. The principle of the right to defense is also provided in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[34] and in Article 14 of the International Covenant on Civil and Political Rights.[35] Thus, both domestic law and International Acts, sanction “the self-defense principle of the accused person”, in addition to his right to be technically assisted by the defense counsel appointed by himself or designated by the state, when he does not have the necessary financial means. Effective realization of this right dictates the necessity of summoning the defendant in the proceedings against him, whose non-compliance is sanctioned with absolute invalidity. The norm aims to satisfy two fundamental principles of the procedure: ensuring the contradiction in the process and guaranteeing the right to the defendant to be self-defended from the accusations in his charge.

       

      1. Judicial practice had revealed misunderstandings regarding the legal obligation to summon the defendant during the trial of his case at the Court of Appeal. This problem of law enforcement was resolved by the unifying decision of the United Colleges of the High Court,[36] which specifically addresses the meaning of the interconnection between the concepts of “summoning” and “notice” of the defendant, free or pretrial detainee, to appear at the Court of Appeal, a solution that is valid for the other phases of the proceedings. The United Colleges noted that the courts made an artificial separation between the two notions, orientated the interpretation according to a concomitant concept, concluding “... that the order to summon a free or arrested defendant at the Court of Appeal cannot be understood and be separated from his notification and the procedural rules to be applied to this notice.”[37] Despite the seemingly clear meaning of the norm and accurate orientations of the above-cited unified decision, it has not been possible to avoid errors of interpretation in the practical activity of the courts regarding the observance of the provisions on summoning the defendant. In this case, the High Court’s criminal college in a number of decisions has reiterated that without the procedures of summoning and notification of the defendant, it is impossible to open the way for his trial in absentia.[38] The criminal college has drawn attention to the obligation for compliance with the procedure set out in Articles 140 and following of the Code, for the notification of the free defendant when he is summoned to be tried at first instance court and at the court of appeal; such procedure should be respected even in cases when, the personal security measure of “arrest in prison” has been imposed against him and it has not yet been executed.[39] This is the solution proposed in some subsequent decisions.[40] In cases when it is known that the defendant is abroad, it cannot be applied the procedure of notifying the defendant who is not found,[41] but that of notifying the defendant abroad.[42] In such cases, failure to comply with the notification by registered letter with notice, even during the trial at the Court of Appeal, makes the procedure irregular, causing absolute invalidity.[43] In addition, notification to the defense counsel cannot replace the notification of the defendant in person.[44] Hence, the High Court notes the need to fulfill two elements: documenting the fact that the defendant was summoned and that the summons was communicated through the notification. For the criminal college, it is important to respect the order of the notification of the free defendant, according to the norm set forth in Article 140 of the Code. The lawmaker prefers the defendant to be personally notified and, when this is not possible, to follow a certain order, which gives the security that, in this way, he can effectively become aware of the act of the summons. Such fair attitude of the college is emphasized in some of its decisions.[45] The importance of respecting this norm, in terms of the realization of the right of defense, is also emphasized by the Constitutional Court.[46] For the criminal college, it is also important the quality of the person to whom the summons is communicated, in the sense of his proximity to the defendant, when the latter is not possible to be personally notified. Only communicating a summons to a relative, who lives or cohabitates with him/her, creates more certainty that the defendant is aware of the act of the summons. Therefore, in the College’s view, the notification is deemed to not have been made, with the consequence the absolute invalidity of the act, when it is unknown to whom the summons was communicated,[47] when it is not known the kin relations between the person to whom the summons is handed over and the defendant[48] or when the person signing for the receipt of the notice is the cousin of the defendant.[49], [50] Regarding the obligation to notify the defendant during the trial at first instance, the college has drawn attention to the fact that the notification of the defendant for a court hearing, which does not take place for various reasons, does not discharge the court from the obligation to make the notifications for the next hearing. Failure to follow this procedure causes absolute invalidity.[51] We note that the rules of the defendant’s notification of the proceedings against him, at the court of appeal, do not make sense to apply when the defendant has provided with a special power of attorney the defense counsel assigned by him/her; such act means that he is aware of the process that is being conducted against him and expresses the will to be represented by the defense counsel, waiving personal defense. In addition, the rules in question are operative at the trial phase; they apply to the defendant, so they cannot extend to the final phase of the final decision execution, i.e. for the convicted person as well. We hereby mention that the presence of a convicted person in the procedures of the decision’s execution is simply optional: he is heard by the court, either directly or by a letter-rogatory, only when he asks himself.[52]

       

      1. With the amendments to the Code, the lawmaker also aimed to strengthen the victim’s guarantees, by sanctioning with absolute invalidity the violation of the provisions related to his/her summons. Thus, the victim is effectively provided with the same rights as the defendant in relation to the procedures of summons to be present in the criminal process. Since the law makes no distinction, the judicial practice of the High Court on the summons of the defendant may serve as a guiding criterion regarding the rules to be respected for summoning the victim into the process. However, we note that there is a feature that should be mentioned: the provision for preliminary actions at the Court of Appeal, anticipates the summons of the civil claimant, but not of the victim when he/she is not legitimized as a civil claimant in the criminal process.[53] Furthermore, it has not been submitted as a reason for the rejection of the decision the non-compliance with the provisions related to the participation of the victim in the adjudication at the Appeal.[54] From an interpretation of the norm in the perspective of the principle of taxativity, it may be deducted the will of the lawmaker to summon the victim only in the first instance trial, and at the court of appeal to be notified only when he/she is legitimated as a civil claimant in the criminal process. The solution to this discussion remains a problem that will be solved by judicial practice in the future.

       

      1. The lawmaker has also sanctioned with absolute invalidity cases when the mandatory presence of the defense counsel is not respected. The presence of the defense counsel is mandatory in the strict cases provided by Article 49, as amended, of the Code. However, since the provision in question leaves open the mandatory defense “in any other case provided by law”, we note that the Code provides two other cases of mandatory presence of the defense counsel: in the procedure of taking evidence during its preliminary provision[55] and during the examination of cases related to the execution of criminal decisions.[56] The criminal college of the High Court has maintained the rule that the defense counsel chosen by the defendant cannot be replaced by a defense counsel appointed ex officio by the proceeding body, if it is not proved that he has been notified, but he has not been appeared.[57] In the case when the defense counsel appointed by the defendant for various reasons, decides to waive from the defense, the criminal college, in the interpretation of Article 55 paragraph 1 of the CrPC, imposes on the obligation of the defense counsel that for the waiver to notify not only the proceeding body, but also the defendant.[58] When the defendant expresses the will to be defended by a certain defense counsel and, the latter requires time to be introduced with the acts and to talk in advance with his client, the court must give him the necessary time in order to guarantee the right to effective defense.[59] When the defendant takes time to choose the defense counsel, is informed of the date of the trial when he should appear together with the defense counsel elected, but he does not appear, of course, the court has the right to continue the trial with a defense counsel assigned ex officio.[60] The presence of the defense in the decisions of the Constitutional Court is closely related to the satisfaction of the principles of contradiction and equality of arms, which ensure the development of a due legal process in the constitutional sense. The jurisprudence of the Constitutional Court has emphasized the importance of compulsory defense in the case of child defendants[61] and the control of the regularity of the notification for the defense party,[62] and the importance of effective technical protection during the adjudication of law cases.[63] This Court also emphasized the importance of defending the defendant from the phase of the preliminary investigations[64], not only during the judicial examination of the case. This is very important since clear rules are established to understand the proceeding and the process as an indivisible integrity, with the obligation of the body which proceeds in order to ensure, at the very beginning, the presence of the defense counsel when the law provides it to be mandatory. Failure to comply with this procedure would cause absolute invalidity of the acts and the whole process would become irregular due to the violation of the constitutional principle of protection. As mentioned above, the Constitutional Court has made some very important decisions regarding the criteria for deciding to refuse the recourse in cases when it is not signed by the defense counsel.[65] Before deciding to refuse the recourse, the college should be ensured for guaranteeing the right of defense by verifying two elements: first of all, the fulfillment of the obligation of the judicial secretariat to inform the defendant of the fact that the recourse must be signed by the defense counsel, so that he will be able to complete it[66], and secondly, if the defendant remains without a defense counsel, the fulfilment of the obligation by the presiding judge to appoint a defense counsel ex officio. In essence, the Constitutional Court orientates an elastic interpretation of Article 435 paragraph 2 of the CrPC.

       

      [1] Article 49 of the CrPC

      [2] Compare with Article 130, paragraph 1, letter c) CrPC.

      [3] See for comparison the terms provided by Article 129 on relative invalidity.

      [4] Article 130 paragraph 4 CrPC

      [5] ibid.

      [6]Decision No.769, dated 20.12.2006, Kabashi, etc. (HC Criminal College), Decision No. 64, dated 14.02.2007, Rustemi (HC Criminal College); Decision No. 00-2010-392 (185), dated 3.3.2010, Nikolla (HC Criminal College).

      [7]Decision No.2, dated 24.1.2011, Salis, etj. (HC Criminal College), §11. The United Colleges considered the rule of the lot equal to the procedural rules governing the composition of the panel, resulting in the violation of the right of the parties to be tried by a court “established by law”, consequently with the absolute invalidity of the decision.

      [8] The barrier to participate in the review of the decision after its annulment is added by Law No. 35/2017, according to the Italian model (Article 449). Such addendum was preceded by a decision of the Constitutional Court, which considered a violation of the principle of impartiality in the trial the fact that four judges, who reviewed the defendant’s recourse, also participated in the college that rejected the request of the defendant for the revision of the final criminal decision; see the decision of the Constitutional Court No. 70, dated 17.11.2015, applicant Doda, §25. See also, in the same decision, the paragraphs § C-1, 18, 22, 23.

      [9]Decision No. 2, dated 12.01.2005, Muçi, etc. (HC Criminal College); both at the first trial and after the retrial, the judges M.Q. and I.B. were members of the panel at the Court of Appeal. The Criminal College of the High Court rejected the appeal court’s decision and returned the case for retrial to the same court, with another panel of judges, referring to Article 128.1, paragraph a), in conjunction with Article 15.1 of the CrPC. See also:

      Decision No. 00-2013-977 (178), dated 29.5.2013, Kelmendi (HC Criminal College), §§ 12-13, 22.

      Decision No. 00-2011-429 (65), dated 28.4.11, Lleshi (HC Criminal College).

      Decision No. 00-2010-1201 (851), dated 29.9.2010, Stragu (HC Criminal College): the defense raised the claim that two judges of the Court of Appeal for Serious Crimes, who tried the defendant Ded Stragu, participated in the trial of this defendant when they were judges at the Court of Appeal in Shkodra, which is openly contrary to the requirements of Article 15/1 of the CrPC. 

      [10]See Decision No. 189, dated 18.4.2003, Sulaj (HC Criminal College); for contradictory resolutions, you may observe decisions: Decision No. 00-2010-1180 (841), dated 22.9.2010, Bylyku (HC Criminal College) and decision No. 440, dated 30.9.2009, Ejupi (HC Criminal College).

      [11]Decision of the Constitutional Court No. 12, dated 13.04.2007, applicant Elezi, Curri. In the reasoning of its decision, the Court expressly refers to Article 15.1 of the CrPC, arguing that the very important assessment, whether or not to be filed for review at court hearings the recourses against final criminal penalties must be made “…by an impartial tribunal.” See, also, the decision of the Constitutional Court No. 38, dated 15.10.2007, applicant Kaçi.

      [12]Decision of the Constitutional Court No. 21, dated 29.04.2010, applicant: Meçe, §§ 12-13.

      [13]Decision No.8, dated 27.2.2014, applicant: Dhima, §§ 20-21. See, in the same decision, paragraph A - §§16-17, 19.

      [14]See Decision No.14, dated 17.04.2007, applicant Koçiu, etc.

      [15] Citation as per the decision.

      [16]Decision of the Constitutional Court No.11, dated 23.4.2009, applicant: Bazelli.

      [17] see Law No. 9276, dated 16.09.2004 “On some addenda and amendments to the Law No.7905, dated 21.03.1995 “Criminal Procedure Code of the Republic of Albania”, Article 4, as amended.

      [18]“… excesses of competences may be reviewed by this Court when there has been a violation of the procedural law that has violated the constitutional rights for a due legal process. The obligation of compliance by the judge with the limit of the competence is, inter alia, a prerequisite for not allowing many judges to exercise the same power with decisions for a particular fact, violating the constitutional principle of a person's legality or judgment twice for the same act (ne bis in idem), provided respectivelty by Articles 4/1 and 34 of the Constitution. Therefore, for each potential case and issue, the law provides a competent court to adjudicate.” (citation according to the decision)

      [19]“Failure to comply with the subject matter competence renders the judicial decision absolutely null and void and the claim for non-compliance with this competence may be raised by both the defendant/tried person and mainly at every stage of the proceedings. In contrast to subject matter competence, the act given in the absence of territorial competence is a relatively invalid act and is declared as such by the court on the request of the parties before the court hearing begins.” (citation according to the decision).

      [20]Also, before latest amendments to the CrPC

      [21]Decision No.00-2010-266 (135), dated 17.2.2010, Lleshi (HC Criminal College); Decision No. 00-2010-399 (220), dated 10.3.2010, Bajramaj (HC Criminal College).

      [22]Decision No. 00-2011-216 (42), 23.2.2011, Lepuri (HC Criminal College).

      [23]This topic was not out of the scope of the Strasbourg Court, clearly expressed in the case Hauschildt v. Denmark, where a violation of Article 6.1 of the Convention was found because the judge who chaired the trial panel at first instance and the judges who considered the case at appeal were invested in the previous stages of the proceedings disposing of the applicant’s personal freedom.

      [24]You may read more about this topic in: Ligori H., «Një vendim, tri probleme», Jeta Juridike, No.2, December 2007, page 33.

      [25]See Unifying Decision No. 7, dated 14.10.2011, Kumbaro (KBGJL); Decision No. 00-2012-1403 (277), dated 17.10.2012, Hasani (HC Criminal College).

      [26]Decision No. 00-2011-437 (66), dated 28.4.11, Qosja (HC Criminal College). Such position of the High Court was also confirmed by the Constitutional Court with decision No.18, dated 2.4.2012, applicant Qosja, §14: “14. The Court notes that Article 15/2 of the CrPC states that “the judge who has validated ... may not participate in the trial ...”, which means that this provision requires the judge to state on the grounds of the security measure. In the present case, the participation of the judge from the Court of Appeal in Shkodra in the trial of the security measure was formal and he did not give any opinion regarding the substance of the case, since the case prosecutor resigned from the appeal filed with that court. In these conditions, the Court finds that this judge is not in the conditions of non-compliance provided in Article 15/2 of the CrPC, and there was no reason to give up the judgment of the specific case in foundation (citation according to the decision).

      [27]Article 342 paragraph 4 of the CrPC.

      [28]See Delcourt v. Belgium, 17.1.1970, cited by the Constitutional Court.

      [29]Article 148 paragraph 1 of the Constitution.

      [30]The prosecutor has the right to undertake a direct trial in order to proceed with a criminal order of punishment and to reach an agreement with the defense for guilty plea and the determination of the punishment

      [31]There is a clear distinction with the accusing victim in the case of the so-called “private accusation”. See also: Decision No. 3, dated 06.02.2008 of the Constitutional Court, applicant: Court of Bulqizë Judicial District.

      [32]Articles 223.4 (deletion of telecommunications’ registration), 400.2 (giving consent to direct judgment), 471 (compulsory participation and provision of opinions on issues related to the execution of criminal decisions), etc.

      [33]Italian doctrine deals with the concept of prosecutor’s participation in the proceedings in its narrow sense, including in this concept any initiatives of the prosecutor different from the practice of criminal prosecution. His participation in the proceedings expresses a residual value in relation to the conduct of criminal prosecution and includes “... all provisions that discipline the prosecutor’s procedural cases, other than those related to the prosecution”. The above concept is expressed, first of all, in the participation of the prosecutor in the judicial examination of the case, but also in his initiative for imposing personal or property security measures. It is interesting the attitude of jurisprudence that directly relates the notion of the prosecutor’s participation in the proceedings and the invalidity which stems from it to the obligation of his notification in order to have the real possibility to exercise his functions, but not with the cases when he does not wish to take advantage of this opportunity. Such concept extends both to the theme of security measures and to the foundation issues. Thus, the lack of an opinion by the prosecutor regularly notified, according to Italian jurisprudence, does not constitute a cause for sanctions of invalidity. See Dominioni Oreste, “Commento al nuovo codice di procedura penale”, a cura di M. Chiavario, UTET, Turin 1990, page 267; cited from Di Geronimo P., “La nullità degli atti nel processo penale”, fatto&diritto, Collana diretta da Paolo Cendon, page 74.

      [34]Article 6. The right to a due process. ECHR.

      [35]Article 14 paragraph 3; The International Pact was adopted and opened for signature, ratification and accession by the United Nations General Assembly by resolution 2200 A (XXI), dated 16.12.1966. It entered into force on 23.3.1976. The Republic of Albania adhered with law no. 7510, dated 8.8.1991.

      [36]Decision No.1, dated 15.02.2001 (KBGJL), Lika, etc.

      [37]This interpretation, very straightforward, is in line with the foreign doctrine that comments: “Summons” constitutes the vocatio tool in iudicium at first and second instances and it includes: a) the order of summons to trial; b) its communication through notification”. See Tonini P., “Manuale di procedura penale”, 8° edizione, Giuffrè Editore, 2007, page 175.

      [38]Decision No. 158, dated 02.04.2008, Sina (HC Criminal College).

      [39]Decision No. 96, dated 20.02.2008, Rakaj (HC Criminal College). According to the College, although the defendant may have been set under the security measure “arrest at prison”, in the conditions when it was not executed, the defendant is considered free and for its notification the procedures stipulated in Articles 140 and following CrPC should be followed.

      [40]Decision No.00-2013-247 (35), 31.1.2013, Kurti, etc. (HC Criminal College), §§ 16-17.

      [41]Article 141 of the CrPC.

      [42]Article 142 of the CrPC. See decision No. 00-2013-533 of Decision (93), dated 22.2.2010, Kraho (HC Criminal College).

      [43]Decision No. 00-2012-1624 (312), dated 21.11.2012, Dogan (HC Criminal College), §§ 22-23. As an instance of the proper application of the notification of the defendant residing abroad (through the summons), you may see: No.00-2013-1001 of Decision (128), dated 10.4.2013, Zaimi (HC Criminal College), § II.1.

      [44]Decision No. 00-2010-195 (138), dated 17.2.2010, Islami (HC Criminal College).

      [45]Decision No. 00-2013-388 (50), dated 3.2.2013, Rabeli, Shyti (HC Criminal College).

      See, also: Decision No. 00-2013-871 (119), dated 3.4.2013, Goxhaj (HC Criminal College), §§ 19-20.

      [46]Decision of the Constitutional Court No. 30, dated 17.06.2010, applicant: the High Court (United Colleges): “The procedural provisions on notification establish a certain order for the manner in which the acts are notified to the accused, and therefore the order should be respected according to the legal preference for this purpose. With this obligation of the relevant state bodies to strictly notify the defendant and to prove that he is evading justice, is connected his right to participate in the trial, as well as the right of the court to decide on the trial in his absence when the notification provisions have been respected strictly.” (own translation).

      [47]Decision No. 00-2013-871 (119), dated 3.4.2013, Goxhaj, cited in advance (HC Criminal College).

      [48]Decision No. 00-2012-938 (197), dated 4.7.2012, Shehaj (HC Criminal College).

      [49]Decision No. 00-2011-788 (112), 21.9.2011, Zeqo (HC Criminal College), §§ 21, 24.

      [50]Decision No. 00-2013-867 (135), 17.4.2013, Kamaj (HC Criminal College), §§ 24, 26, 29.

      [51]Decision No. 100, dated 20.02.2008, Sula (HC Criminal College).

      [52] Decision No. 00-2012-1404 (242), dated 26.9.2012, Reçi (HC Criminal College).

      [53] Article 426 paragraph 1 of the CrPC

      [54] Article 428 paragraph 1, letter ç) of the CrPC

      [55] Article 321 paragraph 1 of the CrPC

      [56] Article 471 paragraph 4 of the CrPC

      [57] Decision No. 629, dated 08.11.2006, Demiri (HC Criminal College).

      [58] Decision No. 612, dated 03.10.2007, Hyseni (HC Criminal College).

      [59] Decision No. 00-2013-864 (124), 10.4.2013, Toshi (HC Criminal College), §§ 26-27, 31-32.

      [60]Decision No. 00-2014-811 (86), dated 19.3.2014, Seferi (HC Criminal College).

      [61]Decision of the Constitutional Court No.13, dated 10.06.2005, applicant Brahimaj: “The Constitutional Court has concluded that, in addition to other principles, the High Court is obliged to respect the contradictory nature and equality of the parties in the trial. The application of these principles in the criminal trial requires that the defendant, a child, through his or her defense counsel be presented and heard in the same way as the prosecutor. The correct application of these principles would exclude the disadvantage of one party towards the other. In the specific case, the High Court violated the principles even though a recourse was examined that by changing the decisions of the other instances of the trial burdened the position of the child defendant ... Under these circumstances, the Constitutional Court for failure to enforce the fundamental principles of the trial, evaluates the decision 565, dated 10.11.2004 of the High Court unconstitutional” (citation according to the decision).

      [62]Decision of the Constitutional Court No. 7, dated 19.02.2007, applicant: Lala: “The Constitutional Court deems that the notification made in contradiction with the law is included in the constitutional examination only when the litigant party has been prevented from exercising the right of defense due to the non-notification, which is guaranteed by Article 42 of the Constitution and Article 6 of the European Convention of Human Rights, as an important element of the due legal process. The Constitutional Court held that in the case under examination, the High Court notified the date of the trial of this case inaccurately ... The Criminal Chamber of the High Court holding the trial of the case without first verifying the reasons for non-appearance of the representative of the defendant has failed to take the appropriate steps to ensure that he enjoys the recognized rights” (citation according to the decision).

      [63]Decision of the Constitutional Court No. 5, dated 04.03.2008, applicant Zeka: “The trial at the High Court, unlike the strict trial proceedings conducted in ordinary courts, has the feature of the filing of only legal arguments. The complexity of court proceedings at the High Court is also confirmed by the legal provisions that sanction that the parties should be represented in this trial by the lawyer. Therefore, examination by the High Court mainly of law matters, not only fully justifies the representation with lawyer in hearings, but moreover it becomes necessary to guarantee the defendants an effective and professional protection. Given the specificity of the case under examination, when the case was adjudicated on the basis of the recourse submitted by the prosecutor requesting the aggravation of the defendant’s position and the fact that neither the defendant nor the lawyer were present at trial, the Criminal College of the High Court should have not conducted the trial without allowing the accused party to realize the legal protection. In terms of guaranteeing a due legal process, or the Criminal College of the High Court it was necessary to take measures in order to prevent the conduct of the hearing in the absence of the representative of the defendant’s interests because it was the only way that the defendant, through the representative figure of the lawyer, realise the right to be defended” (citation according to the decision). See also decision No. 23, dated 13.10.2005, applicant: Xhakja.

      [64]Decision of the Constitutional Court No. 20, dated 20.07.2005, applicant Kurpali: “The constitutional principle that guarantees the right of defense in the preliminary investigations has been violated. It is proved that the applicant has been investigated and tried in absentia. The investigation of the case started on 10.06.1997, and until 25.03.1998, no lawyer was appointed in absence for defending the defendant. The decision to notify the acussation is dated 13.02.1998 but was not communicated to the lawyer because no defense lawyer was appointed by this date. In addition, the minutes on the recognition of the case materials, the decision on filing the case to the court and the request for trial do not result to have been notified to the lawyer. These actions carried out at the phase of preliminary investigations have completely denied the defendant the right to defense, violating constitutional standards and those of the European Convention of Human Rights” (citation according to the decision).

      [65]Decision of the Constitutional Court No. 38, dated 30.12.2010, applicant Perati (§ 3); No.2, dated 25.1.2012, applicant Bukaçi (§12, 13, 14); No. 22, dated 23.4.2012, applicant: (§ 14-18).

      [66]See the decision of the United Colleges of the High Court, No.5, dated 15.9.2009, Dredha, etc. (HC Criminal College).

      1. Article 128/a of the CrPC (former Article 128) incurred only one significant change in letter c) of paragraph 1, which sanctions with absolute invalidity even the disrespect of the provisions related to the summons of the victim in the process. Such change is a reflection of the important changes in the text of the Code, which aim for the victim of the offense to have the role that pertains to him/her and to be represented with all the rights in the criminal process in accordance with international standards.
    • No Comment

  • Decisions of the European Court of Human Rights

    1. The European Court of Human Rights has emphasized the importance of the composition of the court, the guarantee of its impartiality and the notification of the defendant as elements of a due process. In the case of Hauschildt,[1] the Court found a violation of Article 6.1 of the Convention because the judge who presided the trial panel and the judges who examined the case at appeal were invested in the previous stages of proceedings by disposing over the applicant’s personal freedom. But this rule does not apply when the judge has not expressed a decision during the procedure (Bulut).[2] The notification of the defendant to participate in the proceedings against him constitutes an indispensable element of a due legal process and provides the important principle of the contradiction in the process (Poitrimol).[3] In these decisions, the Court also asserts the right to effective protection of the accused person, which, although not absolute, is a fundamental element of a fair trial.[4] The Strasbourg Court returned to this problem in the case of Belziuk[5] , emphasizing the importance of understanding the procedure as a whole, which cannot be considered fulfilled by ensuring the presence of the defendant only during the first instance trial. The same principles were emphasized again by the Court in the case of Asciutto.[6]

     

    [1] Hauschildt v Denmark, 24 May 1989, Application No 10486/83

    [2] Bulut v Austria, 22.02.1996. Application No 17 358/90

    The applicant raised the case in the light of Article 6-1 of the Convention, because of the composition of the panel. The applicant’s claim was rejected by the Court, with this reasoning “34. In fact, it has not been established that he had to take any procedural decisions at all.  His role was limited in time and consisted of questioning two witnesses.  It did not entail any assessment of the evidence by him nor did it require him to reach any kind of conclusion as to the applicant's involvement. In this limited context, the applicant's fear that the Innsbruck Regional Court lacked impartiality cannot be regarded as objectively justified” (version in Albanian language).

    [3]Potrimol v France, 23.11.1993. Application 14032/88; Mr Poitrimol complained that the Aix-en-Provence Court of Appeal had convicted him in absentia without his counsel being able to put the case for the defence. “The defendant's appearance is of particular importance for reasons such as his right to be heard and the necessity to check the accuracy of his statements and to compare them with the statements of the victim...” version in Albanian language).

    [4]ibid.: “Although not absolute, the right of any accused person to be effectively defended by a lawyer, as the case may be and assigned ex officio, is among the basic elements of the fair trial. The accused person does not lose such favor simply because of his absence in the judicial debate”

    [5] Belziuk v Poland, 25.3.1998. (45/1997/829/1035) paragraph 38: “... Had he been present at the appeal hearing, he would have had an opportunity to challenge his conviction and the submissions of the public prosecutor and to present evidence in support of his appeal. It is also to be noted that the applicant’s interests were not in fact represented at the appeal since there was no counsel present on his behalf. It is immaterial that he chose not to be legally represented, as the Government have maintained (see paragraph 8 above). Under Article 6 §§ 1 and 3 (c) of the Convention taken together he had the right in the circumstances to be present at his appeal and to defend himself in person. It follows that the applicant’s right to a hearing in his presence has been violated” version in Albanian language).

    [6] Asciutto v Italy, 27.11.2007. Application No. 35795/02

  • No Comment

  • Constitution: Articles 28.3, 31, 33.1, 142.1;

    European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 6 §1 (the right to a due legal process);

    Criminal Procedure Code: Articles 15, 16, 49, 55.1, 58, 83, 128, 129, 130, 140 and following, 321.1.3, 342.4, 426.1, 428.1, letter ç), 435.2, 471.4;

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

    Law No.98/2016 “On the organization of the judicial power in the Republic of Albania”.

  • No Comment

  • Decisions of the Constitutional Court: 

    No.14, dated 17.04.2007, Koçiu, etc.;

    No.11, dated 23.4.2009, Bazelli;

    No.70, dated 17.11.2015, Doda;

    No. 12, dated 13.04.2007, Elezi, Curri;

    No. 38, dated 15.10.2007, Kaçi;

    No.21, dated 29.04.2010, Meçe;

    No.8, dated 27.2.2014, Dhima;

    No.19, dated 2.4.2014, Beqiraj;

    No.18, dated 2.4.2012, Qosja;

    No.27, dated 01.10.2003, Sulaj;

    No.3, dated 06.02.2008, applicant: Court of Bulqizë Judicial District;

    No.30, dated 17.06.2010, applicant: the High Court (the United Colleges)

    No.13, dated 10.06.2005, Brahimaj;

    No.7, dated 19.02.2007, Lala;

    No.5, dated 04.03.2008, Zeka;

    No. 23, dated 13.10.2005, Xhakja;

    No.20, dated 20.07.2005, Kurpali;

    No.2, dated 25.1.2012, Bukaçi;

    No.38, dated 30.12.2010, Perati;

    No.22, dated 23.4.2012, Balliu.

     

    Decisions of the High Court: 

    Decision No.769, dated 20.12.2006, Kabashi, etc.;

    No.1, dated 15.02.2001, Lika, etc. (unifying decision, KBGJL);

    No.2, dated 24.1.2011, Salis, etc. (unifying decision, KBGJL);

    Decision No.00-2010-266 (135), dated 17.2.2010, Lleshi;

    Decision No.00-2010-399 (220), dated 10.3.2010, Bajramaj;

    Decision No.00-2011-216 (42), 23.2.2011, Lepuri;

    Decision No.2, dated 12.01.2005, Muçi, etc.;

    Decision No.00-2012-1457 (268), dated 17.10.2012, Gjokeja;

    Decision No.00-2013-977 (178), dated 29.5.2013, Kelmendi;

    Decision No.00-2010-1201 (851), dated 29.9.2010, Stragu;

    No.7, dated 14.10.2011, Kumbaro (unifying decision, KBGJL);

    Decision No.00-2012-1403 (277), dated 17.10.2012, Hasani;

    Decision No.00-2011-437 (66), dated 28.4.11, Qosja;

    Decision No.00-2010-1180 (841), dated 22.9.2010, Bylyku;

    Decision No. 418, dated 18.04.2007, Buçpapaj;

    Decision No. 104, dated 27.02.2008, Hyskaj, Çela;

    Decision No.00-2010-353 (187), dated 3.3.2010, Rustemi, etc.;

    Decision No.59, dated 06.02.2008, Metko;

    Decision No.00-2011-1106, dated 27.12.2011, Pllumbi;

    Decision No.24, dated 31.01.2007, Vathi, etc.;

    Decision No.282, dated 15.03.2007, Shahini, Hoxhallari;

    Decision No.158, dated 02.04.2008, Sina;

    Decision No.96, dated 20.02.2008, Rakaj;

    Decision No.00-2013-247 (35), 31.1.2013, Kurti, etc.;

    Decision No.00-2013-533 (93), dated 22.2.2010, Kraho;

    Decision No.00-2012-1624 (312), dated 21.11.2012, Dogan;

    Decision No.00-2013-1001 (128), dated 10.4.2013, Zaimi;

    Decision No.325, dated 24.05.2006, Daja, etc.;

    Decision No.00-2010-503 (331), dated 7.4.2010, Halilaj, etc.;

    Decision No.00-2011-584 (95), dated 13.7.2011, Tinaj, etc.;

    Decision No.00-2010-195 (138), dated 17.2.2010, Islami;

    Decision No.00-2013-388 (50), dated 3.2.2013, Rabeli, Shyti;

    Decision No.00-2013-871 (119), dated 3.4.2013, Goxhaj;

    Decision No.00-2012-938 (197), dated 4.7.2012, Shehaj;

    Decision No.00-2011-788 (112), 21.9.2011, Zeqo;

    Decision No.00-2013-867 (135), 17.4.2013, Kamaj;

    Decision No.00-2012-1404 (242), dated 26.9.2012, Reçi;

    Decision No.00-2011-208 (37), 16.2.2011, Sukaj;

    Decision No. 629, dated 08.11.2006, Demiri;

    Decision No. 612, dated 03.10.2007, Hyseni;

    Decision No.00-2013-864 (124), 10.4.2013, Toshi;

    Decision No.00-2013-856 (129), 17.4.13, Piperi;

    Decision No.00-2014-811 (86), dated 19.3.2014, Seferi;

    Decision No.00-2010-1027 (431), dated 7.5.2010, Fejzulla, etc.;

    No.5, dated 15.9.2009, Dredha, etc. (non-unifying decision of the United Colleges of the High Court).

     

    Decisions of the European Court of Human Rights: 

    Asciutto against Italy, application n° 35795/02, decision dated 27 November 2007, http://hudoc.echr.coe.int/fre?i=001-83510, (last visit on 19.8.2017);

    Belziuk against Poland, application no 45/1997/829/1035, decision dated 25 March 1998, http://hudoc.echr.coe.int/fre?i=001-62705, (last visit on 20.8.2017);

    Bulut against Austria, application no 17358/90, decision dated 22 February 1996, http://hudoc.echr.coe.int/fre?i=001-62530, (last visit on 21.8.2017);

    Delcourt against Belgium, 17.1.1970, application no 2689/65, decision dated 17 January 1970, http://hudoc.echr.coe.int/fre?i=001-62025,  (last visit on 22.8.2017);

    Hauschildt against Denmark, application no 10486/83, decision dated 24 May 1989, http://hudoc.echr.coe.int/fre?i=001-62058, (last visit on 21.8.2017);

    Poitrimol against France, application no 14032/88, decision dated 23 November 1993, http://hudoc.echr.coe.int/fre?i=001-62415, (last visit on 20.8.2017). 

     

    Decisions of the Cassation Court of Italy: 

    Criminal Section VI, decision no. 1444, dated 6.2.1998;

    Criminal Section II, decision no.6916, dated 8 July 1996, Camapanale;

    Criminal Section II, decision no.8392, dated 28 February 2002, Clausi G. and others;

    Criminal Section V, decision no.9047, 15 July 1999 (session 15 June 1999), Larini S., etc.;

    Criminal Section VI, decision dated 3.6.1993, De Tommasi.

  • Piermaria Corso (a cura di), “Codice di procedura penale anotato con la giurisprudenza”, Terza edizione, CELT, 2004;

    Paolo Di Geronimo, “La nullità degli atti nel processo penale”, Fatto & Diritto, Collana diretta da Paolo Cendon, Giuffrè Editore, 2006;

    Henrik Ligori, “Një vendim, tri probleme”, Jeta Juridike, No. 2, December 2007;

    Henrik Ligori, “Research on the invalidity of the acts in our criminal procedure system”. Dissertation for the protection of the scientific grade “Doctor of Sciences”, UT, Faculty of Law, 2016;

    Giorgio Spangher, (diretto da), “Atti processuali penali, patologie, sanzioni, rimedi”, Wolters Kluwer, 2013;

    Paolo Tonini, “Manuale di procedura penale”, 8° edizione, Giuffrè Editore, 2007.

  • No Comment
Henrik Ligori
Idlir Peçi, Koraljka Bumči