Table of Content

• Comments
  • Purpose
    1. Article 201/a of the Code of Criminal Procedure is a new provision which provides for rules when the judicial authority decides to carry out in a mandatory way the taking of the biological samples or other medical procedures, which are necessary for investigation purposes or for taking evidence during the trial. According to the way how the provision is drafted, it reflects the best practices of the member countries of the European Union[1]. Also, the purpose of this provision is the fulfilment of the obligations which originate from ECHR and the Constitution of the Republic of Albania.

     

    [1] See Criminal Procedure Code, Croatia 

  • Scope
    2. Article 201/a provides for comprehensively the examination of the person to take from him the biological samples; or the completion of the mandatory medical procedures as well as the actions carried out with the children in these procedures. This provision, article 201/a, is composed of 14 (fourteen) paragraphs. The legislator has used such a legislative technique with the intention to regulate comprehensively what is related to the purpose of this provision[1].   The provision itself contains procedural rules which are related to the detailed stipulations of the procedure that is to be followed by the competent bodies as they take the biological samples or as they carry out the medical procedures, as well as the material ones, which are related to the principles that are referred to by the competent bodies during the implementation of the stipulations of this provision.   

     

    [1] See paragraph “A Purpose” above

  • Comments
    3. Paragraph 1 of article 201/ a of the Criminal Procedure Code provides for a very important element which is related to the fact that the legislator intends to discipline the mandatory procedure of taking the biological samples from the defendant or other persons, or the realization of a mandatory medical procedure, only in compliance with the provisions of this article.

      

    4. The second paragraph provides for the prosecutor’s request on taking the sample or the realisation of the medical procedure on the defendant or another person with the consent of this person. This article does not list the samples that can be taken (however, in practice, they are hair, skin, cells in the internal part of the mouth, saliva, blood, sperm and urine) and also provides for that these samples can be taken to determine the DNA profile or to compare the tracks that have been found with the DNA profile that has been taken. Furthermore, this paragraph provides for that the adoption in writing of the person, the DNA sample has been taken from, is signed in front of the prosecutor who has ordered it. The reason for such a thing is that the sample is usually taken during the investigation and upon the order (request) of the prosecutor.  The consent in writing is provided for with the purpose to avoid abusing with the consent given by the defendant or the third person. 

     

    5. The third paragraph provides for that the person the sample will be taken from for medical procedure, shall provide the consent in writing. The person, the sample will be taken from, or who will be subject to a medical procedure, shall sign a statement in front of the prosecutor, that he grants the consent and confirms that he has been notified with regard to the reason why the biological samples are taken or the reason why the medical procedure is conducted.

     

    6. Through signing the statement before the prosecutor, the legislator intends to regulate an important aspect of this procedure, related to the elimination of the potential abuses during its implementation. Additionally, the legislator intends to involve the prosecutor in an active position regarding the content of the statement compelling him legally to inform the relevant person about the reason for taking the biological samples or the completion of the medical procedure

     

    7. The fourth paragraph of this article provides for the possibility of obtaining the sample or carrying out a medical procedure in case the person is a child. In this case, the parents of the legal guardian give the consent. The purpose of this regulation is related to the fact that, in every decision and activity, the competent bodies shall evaluate with priority the best interest of the child based even on the principles of the Code of Criminal Justice for Children.

     

    8. The fifth paragraph of article 201/a of the Criminal Procedure Code provides for the case when the person has not given the consent regarding the biological samples or the medical procedure. Therefore, if the consent is not provided, such a procedure can be carried out with the request of the prosecutor and with the order of the court. It is important to emphasize the fact that the provision stipulates the conditions of using this procedure.  Firstly, such a provision shall be enforced only if it is deemed necessary, even when it limits the freedom of the second person; secondly, if his health is not damaged and thirdly, if it is necessary to try the facts in the proceeding.  The enforcement of this provision shall be done after the prosecutor and the court evaluate objectively the need, the evaluation that the application of this procedure shall not damage the health of the person as well as the evaluation if such an action is deemed necessary to prove the facts in the proceeding.

     

    9. The fifth paragraph of article of article 201/a of the Criminal Procedure Code provides for expressively even the cases when the medical procedure cannot be carried out, connecting these limitations with the risk against the life of the person, with his physical integrity or health, or highlighting the limitations which may hurt the unborn child or, which according to the medical protocols may cause unjustified sufferings. These provisions are the guarantees of the criminal procedural law in relation to the personal freedoms, the right to life guaranteed by  Article 21 and 25 of the Constitution of the Republic of Albania,  as well as the physical integrity; which are rights guaranteed by articles 3, 6 and 8 of the European Convention of Human Rights[1].

     

    10. The sixth paragraph of article 201/a of the Criminal Procedure Code provides for comprehensively the content of the court decision for taking the biological sample or the medical procedure. This provision fulfils the obligations which originate from the jurisprudence of the ECHR in relation to the legality of the private life limitation[2].

     

    11. The seventh paragraph of article 201/a of the Criminal Procedure Code ensures that at least 3 days before the sample is taken, the respective person, who is the subject of the medical procedure, or the person the sample will be taken from, shall be notified along with other people related to him. The timely notification (3 days ahead) of the person indicates again the carefulness of the legislator towards the person the sample will be taken from or the person who will be the subject of the medical procedure, in order for this person to be notified and to be prepared for the the fulfilment of the orders of the court in its decision.

     

    12. The eighth paragraph of article 201/a of the Criminal Procedure Code provides for the rules regarding the notification of the decision when the person subject to the medical procedure or to the procedure for obtaining the biological sample is the defendant or the victim. In this case the decision is notified to the defendant, to the defence counsel and to the victim. Also, this provision pas a special attention even to the case when the person is not the defendant or the victim.  In this case the decision is notified to the person, to the defendant, to the victim or to his defence counsel.  Furthermore, the provision pays attention even to the case of the child. The notification of the decision for the latter shall be notified to the parents or to his legal guardian.   The stipulation in this provision regarding the notification of the defence counsel is an additional guarantee.  The defence counsel shall observe the process and if necessary shall make the necessary objections based on the law[3].

     

    13. The ninth paragraph of this article provides for the mandatory presence for the persons who are the subjects of the process from whom the blood sample will be taken, or to the medical procedure stipulated with the court decision, who are not present in the specified place where the blood samples will be taken without the legal grounds. The provision stipulates even the procedural aspect of this moment providing for the obligation for the prosecutor who may require immediately to the court to order his mandatory accompaniment and to decide to take the sample or to carry out the medical procedure. The execution of the court order is carried out by the Judicial Police.  Even though the provision itself does not provide for the right to appeal, we may say that in the cases when the interested person or his defence counsel finds that the orders of the provisions of this article have been violated, then the general appeal rules are valid in relation to the acts generated against the law and which are related to the provisions of article 129, the third paragraph of the Criminal Procedure Code.

     

    14. Paragraph 10 of this article intends to ensure that the sample is taken when there is a reason to believe that the information that is required may get lost or may lose the value. In these cases, the sample shall be obtained without the court decision and only upon the prosecutor’s order. In these cases, the prosecutor requires to the court to evaluate the order issued within 48 hours, in compliance with the provisions of paragraph 11 of Article 201/a of the Criminal Procedure Code.  The purpose of this evaluation is to avoid any misuse of the sample that has been obtained.  The medical procedure has not been excluded from these cases to avoid the opportunity that for example the drug that has been swallowed may be absorbed or may lose in different ways.  There is a provision regarding the time limits for the court to render a decision on the request of the prosecutor, within 48 hours, as obtaining the sample of the DNA or the medical procedure is a delicate issue. 

     

    15. Paragraph 12 of this article provides for the rules that shall be followed to obtain the sample or to carry out the medical procedure at the suspicious person or at the defendant. The mandatory presence of the defence counsel has also been foreseen. The mandatory presence of the defence counsel is an additional guarantee in order for the court decision to be implemented in full compliance with its orders[4]. 

     

    16. Paragraph 14 of this article regulates the cases when taking the sample and the results of the analyses are invalid and consequently they are unusable. Their condition of being unusable is related specifically with the rigorous compliance with the conditions and the procedures provided for in general in article 201/a of the Criminal Procedure Code.  The provision of the last paragraph of article 201/a is related closely with the provision of its first paragraph, which stipulates that obtaining the biological samples from the defendant or other persons in a mandatory way, or the conduction of a mandatory medical procedure is carried out only in compliance with the provisions of this article.  

     

    [1] See section “Decision of European Court of Human Rights”

    [2] Ibid.

    [3] See paragraph 13 below.

    [4] See paragraph 13 above.

  • Historic context
    17. In the Document “The Strategy of the Reform in the Justice System”, adopted with decision no. 15, dated 30.07.2015 of the Special Commission, among the objectives provided for in the criminal justice field, the following can be mentioned: (1) The increase of the efficiency and effectiveness of the criminal justice through the consolidation of the mission and the functions of the prosecutor’s office and through the reorganization of its structures and the redistribution of the responsibilities among them, (2) The strengthening of the procedural guarantees in the phase of the preliminary investigation and during the adjudication in the first instance and in the appeal; (3) The strengthening and the improvement of the status and of the legal position of the victim in the criminal process. These objectives became concrete in the Action Plan for the development of the strategy, determining the review of the Criminal Procedure Code even in the parts of the means to look for the evidence.

     

    18. The examination, as one of the means to look for evidence, has resulted problematic regarding the way it is developed and how the evidence is obtained, especially in the cases of examining the persons, in relation to their personal rights and freedoms. The legal reason for the stipulations of this provision is related to the fact that article 199 of the Criminal Procedure Code (the old version), the fourth paragraph, would provide for in a fragmentary and unclear way that, when necessary, as long as they do not pose any dangers for the health, taking the blood and the other body interventions, even without the will of the person, are permitted for the identification of the facts that are important for the case. The vagueness of this provision to take a decision on such a sensitive case, such as the one related to the medical procedures, may impact on the fundamental freedoms, such as the personal freedom, the right to life and the physical integrity.  According to the way how the old provision was written, it did not ensure the rights and the guarantees that the implementation of this provision would offer. These rights are provided for in the   European Convention of Human Rights and in the Constitution of the Republic of Albania, in relation to the body that proceeds as well as in relation to the individual. 
  • International acts
    No Comment
• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  19. The cases that have been treated above, based on the provisions of article 201/a of the Criminal Procedure Code, have received even the attention of the ECHR in several cases where there is a compatibility of this article with the jurisprudence of this Court. Thus, the ECHR explained that regarding the medical interventions that have been conducted against an arrested person, against his or her will, article 3 of the Convention renders an obligation on the state to protect the physical well-being of the persons whose freedom is deprived, for example, offering the necessary medical assistance to them. Nevertheless, the respective persons remain under the protection of article 3 of the Convention, whose requirements do not permit exceptions (Jalloh)[1]. The essence of this case is related to the fact that the medical procedures, which endanger the defendant's health may be treated as an inhuman and degrading treatment and consequently the evidence obtained illegally are in contradiction with article 6 of the ECHR (the privilege against self-incrimination).   What is mentioned above follows the provisions of article 25 of the Constitution of the Republic of Albania, which provides for that none shall be subject to cruel, inhuman or denigrating torture, punishment or treatment.  Also, what is mentioned above is reflected even in the provisions of article 32, the first paragraph of the Constitution, which stipulates that none can be obliged to testify against himself or his own family or to accept his culpability.

   

  20. Through its jurisprudence, the ECHR stipulates the general criteria that shall be fulfilled by the national legislation for the intervention in the private life be in accordance with the law. Two general criteria are the accessibility and the foreseeability in the law. According to the ECHR, the law shall be very clear with its terms to provide to the citizens appropriate indicators for the circumstances and the conditions under which the public authorities are authorized to use this potentially dangerous intervention in the right to respect the private life and the physical integrity. The legislative technique used in the drafting of the provisions of article 201/a of the Criminal Procedure Code and their detailing is in line with what has been evaluated by the ECHR(Kruslin)[2].

   

  21. Furthermore, the expression “in accordance with the law”, based on the meaning of article 8 § 2 of the European Convention of Human Rights, firstly requires that the objected measure shall have some basis on the domestic law, it also refers to the quality of the respective law in order for the law to be accessible for the respective person, who should be capable of predicting its consequences on him and in compliance with the law. (Huvig)[3].

   

  22. Even when the recourse is not motivated by the grounds of the medical need, articles 3 and 8 of the Convention do not prevent the recourse against a medical procedure in contradiction to the will of a suspect, to obtain from him evidence related to his involvement in committing a criminal offence. Therefore, the institutions of the Conventions have found in some cases that obtaining blood or saliva samples against the will of the suspect with the purpose to investigate a criminal offence have not brought a violation of these articles under the circumstances of the cases examined by them[4].

   

  23. However, every recourse towards a mandatory medical intervention to obtain evidence for a crime shall be justified in a convincing way, based on the facts of a special case. This is specifically true when the procedure intends to obtain internally from the body of the individual, the true evidence of the crime for which he is a suspect. The specifically disturbing nature of such an act requires a strict examination of all the surrounding circumstances.  Regarding this, the importance of the respective criminal offence shall be taken into consideration. Furthermore, the authorities shall demonstrate that they have taken into consideration the alternative methods of collecting evidence, too.  Additionally, the procedure shall not pose the danger for a permanent injury in relation to the health of a suspect[5].

   

  24. Also, the way how a person goes through a mandatory medical procedure to obtain evidence from his body shall not exceed the minimal level of the harshness provided for by the jurisprudence of the Court for article 3 of the Convention. Specifically, something that shall be taken in consideration is the fact if the respective person has experienced serious physical pain or suffering because of the violent medical intervention (Peters against the Netherlands, no. 21132/93, decision of the Commission, 6th April 1994, Nevmerzhitsky, quoted above, §§ 94, 97)[6]. In such cases, another substantial consideration is the fact if the necessary medical procedure is ordered and is administered by the doctors and if the respective person is under constant medical surveillance. (Ilijkov).

   

  [1] Jalloh versus Germany, 11.07.2006, Applicatio no. 54810/00, para.69.

  [2] Kruslin v. Francës, dated 24 April 1990, Application no. 11801/85), page 19, point 2. "Quality of the law", para. 26, 27, 30 and 33.

  [3] See Huvig v. France, dated 24 April 1990, Application no. 11105/84, letter A, "In accordance with the law", para. 26. Still there: “Interception and the other interception forms of the phone calls present a serious intervention in the private life and correspondence, and shall be based on a “law” which is specifically correct. Clear and comprehensive rules on this topic shall be in place, especially for the fact that technology at disposal which is used continuously, becomes more sophisticated.” Para.32

  [4] See http://www.echr.coe.int/Documents/Research_report_bioethics_ENG.pdf, page 42/114, para. 70

  [5] See, mutatis mutandis, Nevmerzhitsky v. Ukrahine, cited above.

  [6] See, https://www.coe.int/t/dg3/healthbioethic/texts_and_documents/Bioethics_and_the_case-law_of_the_Court.pdf, page 23, para. 72.

   

• Legislative material

  ANALYSIS OF THE JUSTICE SYSTEM IN ALBANIA, June 2015

• Related articles

  Criminal Procedure Code: Article 199; 

  Constitutions of the Republic of Albania: Articles 21 and 25;

  European Convention on Human Rights: Articles 3, 6 and 8.

• Sublegal acts
  No Comment
• Decisions

  Decisions of the European Court of Human Rights

  Herczegfalvy v. Austria, dated 24th June 1992, application No. 10533/83

  Ilijkov v. Bulgaria, dated 26th July 2001, application no. 33977/96

  Jalloh v. Germany, 11.07.2006, application no. 54810/00

  Nevmerzhitsky v. Ukraine, dated 5.04.2005, application no.  54825/00

  Kruslin v. France, dated 24th April 1990, application no. 11801/85

  Huvig v. France, dated 24th April 1990, application no.  11105/84

• Literature
  No Comment
• Archive
  No Comment