Table of Content

• Comments
  • Purpose
    1. Article 201/b of the Code of Criminal Procedure is a new provision added pursuant to Article 201/a. The purpose of this Article is to provide the procedure of destruction of biological samples which were taken in conformity with the provisions of Article 201/a of the Code of Criminal Procedure. It is considered necessary for such regulation to be guaranteed by the Code of Criminal Procedure, because Albania does not have a special law that ensures the conservation and destruction of biological samples taken and secondly the biological samples are very personal and interfere in the way how personal freedoms and personal data are guaranteed. The provisions of Article 201/b guarantee the protection of personal data related to biological samples (or deriving from biological samples). Article 201/b is in conformity with the provisions of Articles 15-21 and Article 32 of the Constitution of the Republic of Albania. In addition, the provisions of Article 201/b of the Code of Criminal Procedure are in compliance with the provisions of law No. 9887, dated 10.03.2008, (as amended) “On the Protection of Personal Data”[1].

     

    [1] Amended with Law No. 48/2012, and with law no.120/2014

  • Scope
    2. Article 201/b of the Code of Criminal Procedure provides the time for the conservation of biological samples and the obligation that their destruction is made in compliance with the provisions of the Code of the Criminal Procedure and the procedures to be followed by state authorities for this purpose when the defendant is acquitted with a final decision and when the defendant is declared guilty. The provisions of Article 201/b also provide the rules related to DNA profiles of the samples taken at the crime scene and which are not attributed to a certain person.
  • Comments
    3. Through the provisions of paragraph 1 of Article 201/b of the Code of the Criminal Procedure, the legislator intends to discipline two very important elements. It is intended to clearly define the time of conservation of biological samples, by linking the latter with the time that these biological samples serve the purposes of the proceeding and secondly, the general rule that their destruction shall be made in compliance with the rules of the Code. This is also with the aim of avoiding potential abuses in this regard. The lawmaker in this paragraph uses the terms “... serve the purposes of proceeding” in relation to biological samples. The purpose in this case is to deal with the fact that the conservation of biological samples in compliance with the provisions of the law will have to be done as long as the criminal proceeding lasts. A criminal proceeding, as a rule, ends with a verdict of guilty or innocence for the defendant. Following the criminal proceeding, up to the Court of Appeal, the parties, the defense counsel or the defendant may present new evidence or may request re-expertise of biological samples taken, reexpertise which may objectively influence the foundation of the case. In these conditions, it is deemed by the lawmaker to anticipate a logical link for the duration of conservation of biological samples with the need for criminal proceeding for these samples. If the destruction of biological samples is not made in compliance with the provisions of the Code of Criminal Procedure, then this is an element related to the invalidity of the respective acts provided in Articles 128 and 129 of the Code of Criminal Procedure.

     

    4. The second paragraph of this Article provides that the samples taken by the defendant shall be destructed in case he is acquitted with final decision. In this case the destruction is ordered by the court. Such a provision is in compliance with the provisions of Article 4, paragraph two of the Framework Decision of the Council of the European Union, a paragraph which regulates that the personal data are hidden or become anonymous if they are not further required for the purpose for which they were legally collected. Such a provision necessarily requires that the samples be taken in accordance with the provisions of Article 201/a of the Code of Criminal Procedure. The need to keep personal data should be reviewed regularly, with time limits for their deletion[1]. Such a provision is in compliance with the provisions of the first paragraph of Article 3 “Principles of lawfulness, proportionality and purpose” of the Framework Decision, which provides that personal data are collected by the competent authorities only for specific, explicit and legal purposes, in fulfillment of their duties and shall be processed only for the purposes for which they were collected. Acquittal for the defendant with final judicial decision is an indicator for the authorities which proceed for the destruction of the samples taken by the defendant.

     

    5. Paragraph three of Article 201/b of the Code of the Criminal Procedure requires that the prosecutor, the victim or the legal representative of the victim may, within 60 days of the acquittal, request the court within a term of 60 days from the acquittal decision, request the court to order the maintenance of the biological samples taken from other persons, other than the defendant, if the samples shall be used in another criminal case. Such a provision is in accordance with the provisions of the third paragraph of Article 4 of the Framework Decision where it is provided that personal data will not be deleted, but will be blocked only if there are reasonable grounds to believe that the deletion could damage the legitimate interests of the person in question. In addition, the provision also anticipates the circle of persons who may ask the court to maintain biological samples taken by other persons if they shall be used in another criminal proceeding. If such a request is not filed before the court, then the latter orders their destruction.

     

    6. Paragraph four of Article 201/b, provides the term of 20 years for the conservation of biological samples. The term of 20 years for the conservation of biological samples shall be implemented for the cases when the defendant is declared guilty with a final judicial decision. The provision of the term is in compliance with the provisions of the Framework Decision. 

     

    7. Paragraph five of Article 201/b of the Code of Criminal Procedure requires that, when the defendant is declared guilty for an offence for which the Criminal Code provides an imprisonment sentence of not less than 10 years maximum, the court may order the maintenance of samples taken in conformity with law until a term of 40 years. 

     

    8. Paragraph six of Article 201/b of the Code of Criminal procedure links the term for the maintenance of DNA profiles of samples taken in the crime scene and which are not attributed to a certain person with the completion of the prescription of time limits of the offence provided in the Code of Criminal Procedure.

      

    9. Article 201/b, paragraph seven provides the rule that, if the taking of samples is carried out in defiance of the provisions of this Code, the proceeding authority shall order their destruction. Hence, there is an organic connection between the provisions of Article 201/a and Article 201/b of the Code of Criminal Procedure. Such a provision aims at disciplining the procedures for obtaining and destroying biological samples only within legal frameworks, and avoiding possible abuses in this regard by the proceeding authorities which may, as the case may be, be the court or prosecution.

     

    10. Paragraph eight of Article 201/b provides an obligation for the approval of a joint instruction of the Minister of Interior and the Minister of Health for the maintenance of samples, the procedure for their destruction and the time limit for their destruction and the competent authority. The purpose regarding such provision is linked with the fact that the general principle provided by the Code, as a reinforced standard in relation to other sub-legal acts, as is the joint instruction of the two ministers, will need to be further detailed in a sub-legal act.

     

    [1] See Article 4 and Article 5 of the Framework Decision of the Council of the European Union

    http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008F0977&from=EN

    Article 4 Rectification, erasure and blocking:

    1. Personal data shall be rectified if inaccurate and, where this is possible and necessary, completed or updated.
    2. Personal data shall be erased or made anonymous when they are no longer required for the purposes for which they were lawfully collected or are lawfully further processed. Archiving of those data in a separate data set for an appropriate period in accordance with national law shall not be affected by this provision.
    3. Personal data shall be blocked instead of erased if there are reasonable grounds to believe that erasure could affect the legitimate interests of the data subject. Blocked data shall be processed only for the purpose which prevented their erasure.
    4. When the personal data are contained in a judicial decision or record related to the issuance of a judicial decision, the rectification, erasure or blocking shall be carried out in accordance with national rules on judicial proceedings. 

    Article 5 Establishment of time limits for erasure and review:

    Appropriate time limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time limits are observed. 

  • Historic context
    11. In the Document Strategy of the Reform in the Justice System, approved with decision no.15, dated 30.07.2015 of the Special Committe, among the objectives set out in the criminal justice area are: (1) Increasing the efficiency and effectiveness of criminal justice through the consolidation of the mission and functions of the prosecution office, and through the reorganization of its structures and redistribution of responsibilities between them (2) Strengthening procedural guarantees at the stage of preliminary investigations and during the trial at first instance and at appeal; (3) Strengthening and improving the status and legal position of the victim in the criminal process. These objectives were materialized in the Action Plan for Strategy Development, by also defining the review of the Code of Criminal Procedure in the part of the evidence search tools.

     

    12. Article 201/b of the Code of Criminal Procedure is a new provision added pursuant to Article 201/a, since such an adjustment is guaranteed by the Code of Criminal Procedure, because Albania does not have a special law that ensures the conservation and destruction of the sample taken and secondly the DNA samples are very personal and interfere in the way that the personal freedoms and personal data are guaranteed.
  • International acts
    13. Provisions of Article 201/b are in compliance with Article 8 of the European Convention of Human Rights; with Framework Decision of the Council of the European Union, 2008-977 “On the protection of personal data processed in the framework of police and judicial co-operation in criminal matters” and of the European Parliament and of the Council of 24 October 1995 "On the protection of individuals with regard to the processing of personal data and the free movement of such data. Such a provision is also in compliance with the provisions of Article 7a of the Treaty on European Union, which ensures that the free movement of goods, persons, services and capital require not only that personal data should be able to flow freely from one Member State to another, but also that the fundamental rights of individuals should be protected. The provisions of Article 201/b are also in conformity with the provisions of Articles 30, 31 and 34 (2) (b) of the Treaty on European Union.
• International standards/International references/Best examples

  Decision of the European Court of Human Rights

  14. The issues discussed above have also taken the ECHR's attention in some of its decisions. Thus, the fact that personal data can not be collected and held for each case, in particular if the person whose data is collected, is released by a final decision, has been established by the judicial practice of the ECHR. The Court has its own attitude that an individual's concern over the potential use of private information held by the authorities is lawful and important to determining whether an intervention has occurred. Indeed, given the rapid pace of developments in the field of genetics and information technology, the Court can not reduce the possibility that in the future private life interests linked to genetic information may be adversely affected in new ways or in a way that can not be precisely anticipated today (S. and Marper)[1].

   

  15. The Court reiterates that it is equally essential, in this context, such as in phone tapping, secret surveillance and secret information collection, to have clear and detailed rules regulating the scope and implementation of the measures, and the minimum associated protection measures, inter alia, the protection, use, access of third parties, procedures for maintaining integrity and confidentiality of data and procedures for its destruction, providing sufficient guarantees against the risk of abuse and arbitrariness (S. and Marper)[2].

   

  16. Taking of cell material and its retention, and the determination and retention of DNA profiles, extracted from cell samples constitute an interference in the right of respecting private life in the sense of Article 8 § 1 of the Convention Konventës (Van der velden v the Netherlands)[3].

   

  17. Such interference shall be contrary to Article 8 of the European Convention on Human Rights unless it can be justified under paragraph 2 as "in conformity with law", pursuing one or more of the legitimate purposes listed in it and “necessary in a democracy” in order to achieve the purpose or intentions in question. (Peruzzo and Martens[4]).

   

  18. The ECHR through its jurisprudence has determined the gjeneral criteria that the domestic legislation should meet so that interference in private life is in accordance with the law. The two general criteria are accessibility and foreseeability “... However, the law should be quite clear in its terms in order to provide citizens with adequate indicators of the circumstances and conditions under which public authorities are authorized to use this secret and potentially dangerous interference in the right to respect private life and correspondence” [5] (Kruslin)[6]. The legislative technique used in writing the provisions of Article 201/a of the Code of Criminal Procedure, their detail is in line with what is deemed by the ECHR.

   

  19. Further, the expression “in accordance with the law”, in the sense of Article 8 § 2 of ECHR first requires that the contested measure should have some grounds in domestic law; it also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must be capable of predicting its consequences for it and in accordance with the rule of law (Huvig v. France)[7]

   

  [1] S. and Marper v. United Kingdom, 4.12.2008, Applications no. 30562/04 and 30566/04

  [2] S. and Marper v. United Kingdom, 4.12.2008, Applications no. 30562/04 and 30566/04, para. 74.

  [3] See the Guide on Article 8 of the Convention – Right to respect for private and family life, page 28, para. 122; http://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf

  [4] Peruzzo and Martens v. Germany, 4 June 2013, applications no. 7841/08 and 57900/12 

  [5] Author’s translation.

  [6] Kruslin v. France, 24 April 1990, application no. 11801/85), page 19, item 2. "Quality of the law", para. 26, 27, 30 and 33

  [7] See Huvig v. France, 24 April 1990, Application no. 11105/84, letter A, "In accordance with the law", para. 26

• Legislative material

  ANALYSIS ON THE JUSTICE SYSTEM IN ALBANIA, June 2015.

• Related articles

  Code of Criminal Procedure: Article 201/a

• Sublegal acts
  No Comment
• Decisions

  Decisions of the European Court of Human Rights

  S. and Marper v. United Kingdom, 4.12.2008, Applications no. 30562/04 and 30566/04

  Peruzzo and Martens k. Gjermanisw, 4 June 2013, Applications no. 7841/08 and 57900/12 

  Kruslin v. France, 24 April 1990, Application no. 11801/85

  Van der Velden v. Netherlands, 31 October 2012, Application no.  21203/10)

  Huvig v. France, 24 April 1990, Application no. 11105/84, 

• Literature
  No Comment
• Archive
  No Comment