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

Article 129: Relative invalidity

Previous Next

1Invalidities, other than those provided for by Article 128, may be declared upon the request of the parties

2If the party is present, the invalidity of an act must be challenged before it is performed and, when this is not possible, immediately after it has been performed.

3Invalidity related to the acts of the preliminary investigations and of the acts concerning the pre-trial admission of evidence must be challenged in the preliminary hearing or in trial hearing, before the judicial examination starts, pursuant to article 355 of this Code.

4The invalidity ascertained during the trial may be challenged together with the appeal against the final decision.

5Time limits to raise or challenge invalidity may not be extended.

Table of Content

      1. This provision has a safeguarding character and it aims at setting the appropriate balance between the need for effectiveness and the speed of judicial procedures and the rights of the accused party not to be adjudicated on the basis of invalid acts, affecting their interests. This provision is, from this prospective, also a guarantee for the protection of the person against abuse with the process and its conclusion within a reasonable time.[1] The fixed (preclusive) limitation periods for lodging and filing objections, regulated by paragraph 5, do not allow to the parties to return the process to the previous phase and extend the time for its conclusion.

       

      [1]Article 28 paragraph 3 of the Constitution

      1. The scope of the provision provided for in Article 129 is to set out the concept of relative invalidity of the procedural acts, the way of filing and contesting them, as well as the timing within which the parties need to assume of this right. The provision makes a clear distinction between the relative invalidity and the instances of absolute invalidity, being explicitly provided for in Article 128/a of the Code.
      1. The relative invalidities are invalidities of a specific nature, provided for explicitly in the special provisions of the Code, sanctioning less significant flaws of the criminal procedural acts compared to the absolute invalidity instances. They do not protect essential interests of the accused party, being connected to the fundamental principles of the criminal proceedings, but they sanction specific procedural infringements, being provided for explicitly in the provisions of the Code, which might have an impact on the finding of the decision.

       

      1. The relative invalidity of the criminal procedural acts, is different from the absolute ones and is subject to the legal regime being characterised by the following essential features: 
      • they are submitted by the interested party, whose interest has been infringed by the invalid act;
      • they are raised within the timing foreseen in the law, related to the consequence of relinquishing the right to lodge them at a later moment (preclusive time periods);
      • there exists the possibility of correcting them; under certain conditions, a relatively invalid procedural act may become valid.

       

      1. Upon the request of the interested party, at the stage of preliminary investigations, their evaluation is done by the prosecutor, while during the preliminary hearing or during the judicial examination of the case, the evaluation shall be made, respectively by the judge of the preliminary hearing[1] or by the court.

       

      1. Article 128 of the Code, as amended, sets out explicitly a sanctioned rule: “The procedural acts shall be invalid only in the cases expressly provided by this Code.”. This rule is acknowledged as the principle of taxativity (explicitly providing for the invalidity instances)[2], such principle strictly prohibiting the extended interpretation or the analogy in the matters of invalidity cases[3]. Thus, the act may be contested in terms of invalidity only where the procedural law sanctions explicitly the non-observation of the form of the act conditioning it with its invalidity. Let us take as an example the provisions regulating the separation or merging of cases.[4] The decision being made beyond the instances provided for in this Code, is an irregularity of the act (which may be subject to disciplinary sanctions), however, there is no relative invalidity, since the lawmaker has not provided for such consequences in the contents of the provision. For example, provision regulating the appointment of the judicial hearing[5] provides that it should be made within ten days from the lodging of the request of the prosecutor or the accusing victim. Where this time period provided for in the law is not observed, no invalidity emerges, since the law does not provide explicitly for it and, in such case, there is just an irregularity of the act of the presiding judge of the panel.

       

      1. In the first paragraph of Article 129, the lawmaker regulates that relative invalidity “..., may be declared upon the request of the parties”. This provision regulates, in its essence, the regime of the relative invalidity and it serves as the first criterion differentiating it from the category of absolute invalidity. The initiative of finding out and asserting them is assigned by the provision to the interested party, however, provided that the mechanism of automatic rectification has not been activated yet. The logic of restricting the possibility to assert the relative invalidity, ascribing this right only to the parties to proceedings, is relied on the need to balance their interests with the interests of the justice that the proceedings be concluded within a reasonable time, without permitting unnecessary delays.

       

      1. The time periods to assert or to object the invalidities of relative nature, are qualified by the lawmaker as time periods “which cannot be extended”[6] (paragraph 5 of Article 129). The rationale of this provision is to avoid unnecessary delays of proceedings to the detriment of justice, in the instances of the acts being relatively invalid, which, as explained above, are not connected to essential interests of the proceedings. The provision contains various regulations, depending on the fact whether the party is or is not present during the commission of the act. The rule of preventing the commission of invalid act applies, regulating the refutation based on invalidity “before it (the act) is accomplished” if the party is present. For example, according to Article 158 of the Code, some persons are exempted from the obligation to testify, and for this reason the court should make this known to them prior to them testifying; otherwise their testimony shall be invalid. If the court does not make known to them this right of theirs, the defence lawyer being present has to object immediately, so that they hinder the accomplishment of the invalid act. If he does not object to the accomplishment of the act, he loses the right to assert this invalidity at a later stage. However, if this is not possible, the invalidity has to be asserted “immediately after having been made”. Thus, according to Article 245 of the Code, the court decision for imposing the security measures should contain, connected to the consequence of invalidity, inter alia, even the personal data of the person whereon the measures is imposed (letter ‘a’). The defence lawyer being present in the hearing cannot find out this invalidity prior to it occurring, since he becomes aware of it at the moment when he is handed over the copy of the grounded decision. This is the moment when the decision may be challenged due to invalidity, by way of appeal. Asserting this invalidity at a later stage of the proceedings is not possible. If the party is not present, the assertion and objection based on invalidity respects the time period, according to the condition and stage of the proceeding: invalidity connected to the acts of preliminary investigation and those accomplished for perpetuating evidence should be objected to during the preliminary hearing (paragraph 3 of Article); if the case does not go through the preliminary hearing,[7] the objection should be made prior to the judicial examination being declared opened.[8] The invalidity being found out during the adjudication may be challenged by way of the act of the complaint against the final decision (paragraph 4 of the Article).

       

      1. If relative invalidity is not asserted within the preclusive time periods, as per above, the parties waive the right to assert it in the subsequent stages of proceedings.[9] The relative invalidity shall, under such circumstances, be rectified[10], for the purposes of proceedings, it shall be considered to be valid. At the same time, the relative invalidity shall be rectified even where the defendant does not object to the decision upholding the criminal order of conviction being issued by the prosecutor, as well as where the court approves the agreement for pleading guilty and imposing the sentence.[11] It should be highlighted that by way of amendments and addenda to Article 130 of CrPC, assertion of invalidity is not taken account of (i.e., if asserted, it shall not be upheld) as long as the invalidity is caused by the party themselves or the invalid act does not affect any of the interests of the party asserting the invalidity. 

       

      1. Invalidity of the decision. We highlighted that the relative invalidity instances are regulated based on the principle of explicit regulation (Article 128). This streamlining choice of the lawmaker does not exclude the instances of invalidity of the judicial decision, which do not fall under the instances of absolute invalidity. The appeal court is entitled to quash the decision of the first instance court and remit the acts for re-adjudication “in each instance where in separate provisions, there is foreseen the invalidity of the decision’,[12] however this does not provide an absolute nature to the flaws of the decision.[13] The invalidity of the judicial decision consists a specific cause for approaching the High Court.[14] In the debate regarding the invalidity of the decision due to flaws in reasoning, the foreign doctrine raises the problem not just from the formal point of view (actual absence of the reasoning part), but specifically in terms of contents, encompassing the logic of reasoning, comprehensiveness and correctness.[15] The elements of the contents of reasoning are very important. Thus, the grounded decisions may be contested based on formal invalidity, however, without contents, the decisions which paraphrase the legal provisions or making use of decorative styles and phrases, missing any contents in sentences.[16] Regarding the rules to be taken account of in the reasoning of the decision, there has been stated more than once by the Constitutional Court for more clarity.[17] In one instance, the criminal chamber of the High Court upheld the decision of the appeal court, the latter declaring the first instance court invalid, for the reasons of absence of reasoning, since the court did not go further quoting in direct speech the statements of witnesses, while falling short of analysing them in connection with the evidence and circumstances of the case,[18] such being a typical case of a decision being just formally grounded. At the same time, the case law of the criminal chamber has set out the orientation that this is an instance of invalidity of the decision, as long as it is signed up only by the presiding judge and by the other members of the panel,[19] referring to Article 383 paragraph 3 of the CrPC.[20]

       

      [1] ibid.

      [2] Spangher G. (diretto da), “Atti processuali penali. Patologie, rimedi, sanzioni“, Wolters Kluwer 2013, page 753-757.

      [3] The same rule applies also for the Italian doctrine and judicial practice, whereof this institute has been taken; see Spangher G., “La pratica del processo penale”, Volume III, E-pub, CEDAM 2014, page 244.

      [4] Articles 92 of CrPC and 93 of CrPC

      [5] Article 333 of CrPC

      [6] Article 145 paragraph 1 of CrPC.

      [7] Articles 400 CrPC, 406/a CrPC and 406/d CrPC

      [8] Article 355 of CrPC

      For case law, see High Court Decision No 00-2010-267, dated 17.2.2010, Yzeiraj. As illustration of wrong solution, you may see: Decision No 532 dated 20.6.2007, Zefi, etc.; Decision No 533 of decision, dated 20.6.2007, Kuqi, Halili (HC Criminal College).

      [9] See Decision No 60, dated 06.02.2008, Shemuni (HC Criminal College).

      [10] See Article 130, par 1, letter a) CrPC. In such cases, there is presumed that the party agrees by way of the “factia concludentia” to the consequences of the act.

      [11] ibid.

      [12]Article 428 paragraph 1 letter ç)

      [13] Prior to the amendments being made by the law no 35/2017, event the High Court was entitled to decide quashing the decision and resolve the case while not returning it for re-adjudication as long as “the decision is invalid ...” (Article 442, paragraph 1, letter ‘b’, repealed), which means that the invalidity of the decision might be rectified by the High Court, for instance, in the event of absence of grounding.

      [14]Article 432, paragraph 1, letter b).

      [15]Di Geronimo P., “La nullità degli atti nel processo penale”, Giuffrè Editore, 2006, page 217.

      [16]For illustration, you may have a look at the instances when the court is using stylistic formulas, which do not indicate anything regarding the grounding: No 00-2012-1685 of Decision (329), dated 5.12.2012, Shquti (HC Criminal College): “18. The Criminal Chamber, while not alleging in the current case an ‘elegantia juris’ evaluates that ... 22. In the legal aspect (factum) they play an important role and their analysis is simply the process of application of the law against the facts ...”.  (quotation according to the decision)

      [17] Decision of Constitutional Court no .3, dated 19.2.2013, Vagenas: “19. The judicial decision should always be logical, appropriately formed and clear in contents.  In its entirety, it should be considered as a unit, whereby the constituent parts are closely connected to each-other. They have to be instrumental and serving each-0ther. The arguments of the grounding part should be based on and logically connected, abiding by the rules of normal thinking. They have to make up a coherent content of the decision, which should exclude any contradiction, being open or implied. These arguments should also be sufficient to support and admit the ordering provisions. The conclusions of the first arguing part should be based not only on the legal acts, but also on the rules and principles characterising the sound logical thinking”. (See decisions of the Constitutional Court no 20, dated 13.4.2012, Stefani and No 38, dated 30.12.2010, Perati)

      [18] No 00-2013-988 of Decision (194), dated 12.6.2013, Telushi, etc. (HC Criminal College).

      [19] No 00-2012-1330 of Decision (253), dated 10.10.2012, Baçi, §§ 25 -27 (HC Criminal College).

      [20] Article 383 paragraph 2, after amendments.

      1. Article 129 of Criminal Procedure Code has not sustained essential amendments. The sequences of paragraphs have been changed in order to highlight the logic of the norm. At the same time, a phrase has been inserted into paragraph 3, thus paving the way for the relative invalidity to be contested even before the judge of the preliminary hearing, such an addendum being dictated through the creation of this new procedural element.

       

      1. In essence, the most relevant amendment having an impact on the application of this provision is the admission by the lawmaker of the principle of the explicit provision of the invalidity (Article 128), which is believed to have an impact on the unification of the case law which is still not consolidated regarding this topic.
    • No Comment

  • Decisions of the European Court of Human Rights 

    1. The invalidity of the decision due to the lack of reasoning is reflected in the ECHR decisions. It has determined the standard by which the judicial decisions should indicate the motives it relies on. (Papon)[1], with sufficient clarity for the defendant have the possibility to effectively assume the right to complaint (Boldea[2] and Hadjianastassiou[3]), reasoning should rely on objective arguments, while its scope might vary depending on the nature of the decision and circumstances of the case (Ruiz Torija[4]). It is not necessary to reflect in detail in the contents of the reasoning about any issue being raised (Van de Hurk[5]), however, it should be clearly stated that the essential issues have been dealt with by the court (Boldea)[6].

     

    [1] Papon v France, application no. 54210/00, 25 July 2002

    [2] Boldea v Romania, application no. 19997/02. 15 February 2007, paragraph 30

    [3] Hadjianastassiou v. Greece, application no. 12945/87, 16 December 1992

    [4] Ruiz Torija v. Spain, application no. 30544/96, 21 January 1999, paragraph 30

    [5] Van de Hurk v. Holand, application no 16034/90, 19 April 1994, paragraph 61

    [6]  Boldea v Romania, quoted above.

  • No Comment

  • Constitution: Article 28.3;

    European Convention of fundamental Human Rights and Freedoms: Article 6 §1 (right to due process);

    Criminal Procedure Code: Articles 60, 93.1/b, 98.3, 100.2, 122, 128, 128/a, 130, 131, 143, 145, 158.2, 171.5, 172.3, 173.3, 245.1, 331.2, 332/ç/1, 339, 355, 360, 400/a, 400/d, 401.2, 406/d/3, 406/e/2, 428/1/ç, 432/1/b, 447.3.

  • No Comment

  • Constitutional Court Decisions 

    No 7, dated 27.4.2005, Durrës; 

    No 38, dated 30.12.2010, Berat;

    No 20, dated 13.4.2012, Stefani;

    No 3, dated 19.02.2013, Vagenas.

     

    Decisions of the criminal chamber of the High Court 

    No 540 of decision, dated 22.10.2003, Regolli, etc.;

    No 350 of Decision, dated 31.05.2006 (complaint against the decision terminating the proceedings);

    No 00-2013-665 of decision (70), dated 27.2.13, Kelmendi;

    No 77 of decision, dated 11.02.2004, Kazasi;

    No 663 of decision, dated 05.10.2005, Kulla;

    No 00-2012-1569 of Decision (313), dated 21.11.2012, Hasani, etc.;

    No 00-2013-702 of decision (117), dated 03.04.13, Doda;

    No 00-2013 -389 of (44) Decision, dated 6.2.2013 (complaint against the decision terminating the proceedings);

    No 00-2010-267 of Decision (140), dated 17.2.2010, Yzeiraj, etc.;

    No 532 of decision, dated 20.6.2007, Zefi, etc.;

    No 533 of decision, dated 20.6.2007, Kuqi, Halili;

    No 60 of decision, dated 06.02.2008, Shemuni;

    No 00-2012-1685 of Decision (329), dated 5.12.2012, Shquti;

    No 00-2013-988 of Decision (194), dated 12.6.2013, Telushi, etc.;

    No 00-2012-1330 of Decision (253), dated 10.10.2012, Baçi.

     

    Decisions of the European Court of Human Rights 

    Boldea v. Romania, application no 19997/02, Decision dated 20 June 2006;

    Papon v. France, application no 54210/00;

    Ruiz Torija v. Spain, application no 18390/91, Decision dated 9 December 2004;

    Van de Hurk v. Holand, application no 160034/90, Decision dated 9 April 1994;

    Hadjianastassiou v. Greece, application no 12945/87, Decision dated 16 December 1992, application no 19997/02, Decision dated 20 June 2006.

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

    Giorgio Spangher, “La pratica del processo penale”, Volume III, E-pub, CEDAM 2014, pages 243-247, 260-262.

    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.

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

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

  • No Comment
Henrik Ligori
Idlir Peçi, Koraljka Bumči