Table of Content

• Comments
  • Purpose
    1. Through the provision of Article 140 of the Code of Criminal Procedure, the legislator has intended to establish a special aspect on the discipline of notifications to a defendant in free state for the first time based on his personal status. Article 140 of the Code of Criminal Procedure intends to guarantee the presence of the defendant in the trial to ensure the right of the defendant in free state to be informed and to be introduced to the acts issued against him, to guarantee his full procedural rights in general and his right to be defended and particularly to be present. The right of the defendant to be defended is guaranteed even by the Constitution of the Republic of Albania, article 31 as well as by the international legislation and the European Convention on Human Rights (hereinafter referred to as ECHR), namely article 6 of the Convention, as well as the International Convention of Civil and Political Rights (hereinafter referred to as ICCPR), article 14 of the Convention.
  • Scope
    2. Article 140 regulates the actions to be undertaken by the proceeding body to notify the defendant at free state for the first time, taking into consideration the fact that the notification is the instrument used by the legislator to notify the defendant in free state regarding an action related to the criminal process against him.
  • Comments
    3. The new provision of article 140 is different from the old provision in several aspects. The new title of the article is “Notification of the defendant in free state for the first time”, meanwhile the title of the old provision was “Notification of the free defendant”. This change in terminology, including the concepts “for the first time” and “state”, taking into consideration even the other amendments in the provision, which are going to be discussed below, reflects the purpose of the legislator to guarantee the procedural rights of the defendant[1] from the first time when he is notified, that is to say from the very first moments when the proceeding body acts for the notification of the defendant at free state. This purpose is also reflected in the provision which stipulates that the notification of the copy of the act is delivered in person to the defendant along with the letter of rights according to the provisions of article 34/a of the Criminal Procedure Code.

     

    4. As far as the notification of the defendant in free state is concerned, the provision stipulates expressively the place where the notification is carried out (the residence or the workplace), when the delivery to the person himself is impossible, and it also stipulates a preferential order of the persons who receive the copy of the act that is notified. This means that in case the body, in charge of the execution of the notification, delivers the copy of the act to a person without respecting this preferential order (an exclusive descending order) or without respecting the order of the actions provided for in article 140, paragraph 1, the notification is not considered to have been executed. Furthermore, under these conditions, the court cannot declare the absence of the defendant and it cannot proceed with the trial in absentia according to the provisions of article 352 of the CrPC. The Constitutional Court shared the same opinion, explaining that: “The procedural provisions for the notifications establish a certain order according to the legal preference for this purpose. The obligation of the respective state bodies to notify the defendant rigorously and to prove that he is absconding justice is connected with the his right to participate in the adjudication as well as the right of the court to make a decision regarding his adjudication in absentia as long as the provisions on the notification have been respected rigorously”.[2] With the same reasoning, the Constitutional Court emphasises that the violation of the rules provided for in article 140 of the Criminal Procedure Code make the process incorrect according to article 42/1 of the Constitution, violating the guarantees provided for in article 6 of the European Court of Human Rights.[3]

     

    5. Unlike the previous provision, article 140 of the Criminal Procedure Code in force, paragraph 1, provides for the content of the notification act and more concretely, the personal data of the person who undertakes to notify and contact the defendant in free state, when the notification cannot be carried out in person. The provision stipulates that some elements shall be respected. The latter are related to the accuracy of the act that will be notified and the execution of the rules for his notification. These elements are an indispensable condition for the notification validity. Their violation causes the invalidity of the notification, considering it as unexecuted.[4]

     

    6. According to the provisions of paragraph 3 article 140 of the Code of Criminal Procedure, the copy of the notification cannot be delivered to a child under 14 years of age or to a person with obvious intellectual disabilities. This means that when the body, who proceeds with the notification, hands in the copy of the act to a person without verifying his age, or to a person, who according to his consideration has obvious intellectual disabilities, in these cases the notification is considered unexecuted again.[5]

     

    7. Paragraph 4 of article 140 of the Criminal Procedure Code provides for, as a rule, the right of the child defendant to be notified through his parents or guardian and in compliance with the special legislation on children. This new provision of the legislator is an extra guarantee regarding the child defendant, a provision which was missing in the former article 140. Despite the general provision of article 2 of the Criminal Procedure Code, in the concrete case, the legislator prefers to guarantee a special protection for the child defendant even regarding the procedural rules, including the notification according to the conditions and the provisions of article 140 as well as according to the special legislation on children. The provision is in compliance with the Constitution, the Convention of the United Nations Organisation (UNO) on the Rights of the Child and the other international standards and norms, which intend to protect the child and to protect effectively the best interest of the child. This provision is in full compliance with the provisions of Article 19 of law no. 37/2017 “Code of Criminal Justice for Children”.

     

    8. Paragraph 5 of article 140 regulates the cases when the persons included in paragraph 1 are absent or are not the appropriate ones or refuse to receive the act. Under these conditions, the proceeding that is applied is searching for the defendant in other places. Again, the purpose is related to making the norm applicable in practice. However, the implementation of the respective provision in practice is carried out by the proceeding body avoiding the potential abuses regarding the term “in other places”. The body that proceeds with this terminology shall consider the orientation of the legislator in article 140 in general, which means that the proceeding body should follow rigorously the rules on the notification provided for by article 140 according to an exclusive descending order and not beyond its provisions.

     

    9. In case the search of the defendant in other places results to be unsuccessful, then the law provides for that the act shall be deposited at the administrative centre of the street or the village where the defendant lives or works. The notice of depositing is displayed on the front gate of the defendant’s house or of the place where he works, at the posting corner and on the webpage of the court, which constitutes a new element compared to the old provision. This provision reflects the development of technology and the purpose to implement it even in the cases of notification. Even in this case, the body enforcing the provision shall take into consideration the fact that the depositing notice shall be displayed on the webpage of the court which proceeds the concrete case.

     

    10. Apart from the notification validity conditions, mentioned above, it is worth mentioning some other conditions provided for in paragraph 5 article 140. Failure to display on the front gate of the defendant’s house or workplace, on the posting corner and on the webpage of the court, the notice on the depositing of the act in the administrative centre of the street or village where the defendant in free state lives or works, makes the notification invalid. Another element of validity is even the signature of the person who undertakes to perform the notification, when the act to be notified is not delivered to the defendant in person, as such a thing was not possible. The law makes such a provision for two reasons: Firstly, the signature is an indicator of the will and the responsibility undertaken by the person who receives a copy of the act to be notified, accepting that this person will notify the person that must be notified, with his will. Secondly, the signature of the person who undertakes to carry out the notification is an additional indicator that the defendant was informed on the act or the action that must be notified to him. Apart from the element of security, the signature has another effect, as it facilitates the work of the court in this prospective simplifying the verification to prove if the defendant has been notified about a certain act or action or not.[6] However, as the jurisprudence of the European Court of Human Rights (mentioned below)[7] explains it, the court shall not have a formal approach in this aspect, particularly about trial in absentia. This means that the signature of the person who undertakes to notify the defendant should not make the court reach the automatic conclusion that he defendant has been notified.

     

    11. The Albanian case law[8] also stipulates that the violation of the notification rules causes an absolute invalidity for the process and the final decision based on article 128/1 letter “c” of the Criminal Procedure Code and the failure to repair the consequence caused by this kind of invalidity, according to the second paragraph of the above article makes the case be re-adjudicated.

     

    12. According to paragraph 7 article 140 of the Criminal Procedure Code, through the first-time notification act, the proceeding body invites the defendant to declare or to choose the residence or the place and the mode of the next notifications for the effects of the proceeding. In case these places are changed, the defendant is compelled to notify in writing or to declare before the proceeding body. In this way, the legislator has provided for an active role of the notification proceeding body to invite the defendant to declare his residence for the effect of the proceeding in general and of the notifications specifically.

     

    [1] See paragraph 2 above

    [2] Decision no. 30, dated 17.06.2010, Abrogation of article 48, paragraph 3; article 410, paragraph 2 of the Code of Criminal Procedure as incompatible with article 43 of the Consitution of the Republic of Albania,  para. 34.   

    [3] Decision no. 9, datë 22.02.2001 of the Constitutional Court, “Abrogation of the criminal decision no. 97 dated 02.04.1999 of the Court of Appeal Tirana and no. 670, dated 01.11.1999 of the Court of Tirana Judicial District”, last paragraph.

    [4] Commentary on the Code of Criminal Procedure, Halim Islami, Artan Hoxha, Ilir Panda, Tiranë, edition 2010, page 191

    [5] Commentary on the Code of Criminal Procedure Halim Islami, Artan Hoxha, Ilir Panda, Tirana, Edition 2010, page 191.

    [6] Decision no. 30, dated 17.06.2010, Abrogation of article 48, paragraph 3; article 410, paragraph 2 of teh Code of Criminal Procedure as incompatible with article 43 of the Consitution of the Republic of Albania,  para. 34.   

    [7] See the section “Decision of European Court of Human Rights”. 

    [8] Decision no. 58, dated 27.1.2010, defendnat:  Islam Karemani, Mirjeta Bregu (KPGJL)

  • Historic context
    13. In the framework of the justice reform, the group of experts[1], invited by the Assembly, found that the provisions that would regulate the notification of the defendant in free state for the first time were not in full compliance with the standards of the jurisprudence of the European Court of Human Rights. In this framework, the amendment of article 140 of the Code of Criminal Procedure was considered to be necessary.

     

    [1] Analysis Document of the justice system in Albania, June 2015, page 87, paragraph 4.2.5

    “Efficiency through the procedural law. The issues related to the notification of the documents still exist and need to be solved. In Albania, the reliable notification of the documents is still a problem in a considerable number of cases, if the defendant has not been registered or cannot be found or if he does not have a mail address. This is not a problem just for the registration of the citizens. The Procedure Codes lack specific provisions that would provide for a broad range of valid notification”.

  • International acts
    No Comment
• International standards/International references/Best examples

  Decision of the European Court of Human Rights

  14. The case treated above, based on the provisions of article 140 of the CPC, have attracted the attention of the European Court of Human Rights, too, in several cases. The European Court of Human Rights considers that it is the duty of the court (which proceeds) to guarantee to the defendant, including the defendant in free state, the participation in the hearing, during the procedure for the first time as well as during the process against him (Sejdovic)[1]. In the same reasoning line, the European Court of Human Rights emphasizes that the authority which proceeds, shall not declare the defendant in absentia just based on the fact that he was not found at a certain address, (Colozza).[2] Therefore, the formal approach towards the notification is acceptable for the European Court of Human Rights and the proceeding authority shall undertake all the reasonable steps to notify the defendant.

   

  [1] Sejdovic v. Italy, 24.03.2005, Application no. 9808/02, para. 84.

  [2] Colozza v. Italy, 12.02.1985, Application no. 9024/80, para 48.

• Legislative material

  ANALYSIS ON THE JUSTICE SYSTEM IN ALBANIA, June 2015

• Related articles

  Code of Criminal Procedure:

  Article 128

  Article 128/a

  Article 137

  Article 138

  Article 143

  Article 352.

• Sublegal acts
  No Comment
• Decisions

  Decisions of the Constitutional Court of the Republic of Albania

  Decision no. 9, dated 22.02.2001;

  Decision no. 17, dated 4.4.2001;

  Decision no. 23, dated 23.4.2001.

  Decision of the High Court of the Republic of Albania

  Decision no. 58, dated 27.1.2010, Defendant: Islam Karemani, Mirjeta Bregu  (KPGJL);

  Decisions of European Court of Human Rights

  Colozza v. Italy, 12.02.1985, Application no. 9024/80;

  Sejdovic v. Italy, 24.03.2005, Application no 9808/02;

• Literature

  Commentary on the Code of Criminal Procedure Halim Islami, Ata Hoxha, Ilir Panda, Tirana, Edition 2010.

• Archive
  No Comment