Table of Content

• Comments
  • Purpose
    1. The procedural interception of communications (Article 221-226) establishes legal actions to be conducted in accordance with the Constitution and the Criminal Procedure Code against a suspected person, in order to provide necessary evidence to establish whether a criminal offence has been or will be committed. The Constitution of Albania guarantees the freedom and secrecy of correspondence or any other means of communication[1] but also allows the limitation of the rights and freedoms by law for a public interest or for the protection of the rights of the others. These limitations shall not exceed the limitations provided in the European Convention on Human Rights.[2]

     

    [1] Article 36, Constitution of the Republic of Albania

    [2] Article 17, Constitution of the Republic of Albania

  • Scope
    2. Article 221 describes the limits of permission of the procedural interception of communications. Although it does not give a general definition of the procedural interception it determines the comprehensive criteria necessary to allow the interception of communications. Thus, procedural interception of communications can take place only where there is a proceeding as described in letters ‘a’, ‘b’ and ‘c’ of the first paragraph of the Article 221. Therefore, Article 221 allows interference to correspondence or personal communications, but provides guarantees for persons subject to interception of communications. Furthermore, the provision describes the categories of persons against whom an interception may be ordered.
  • Comments
    3. Albanian legislation classifies interception of communications into two categories: procedural interception of communications and preventive interception. Procedural interception of communications is regulated by the Criminal Procedure Code, while preventive interception by a separate law. The first provision of the Criminal Procedure Code on procedural interception of communication, i.e. Article 221 ‘Limits of permission’ brings various issues to the understanding of the procedural interception. However, the provision does not give a definition of the interception of communications. A definition can be found in the Law on Interception of Electronic Communications and Law on Electronic Communications[1]. Thus, ‘Interception’ is the hidden interference to capture, hear and record the content of the communication and data related with it, between the starting point and arriving point.[2] ‘Communication’ means information exchanged or transmitted between a limited number of users, but not including information transmitted as part of the radio- television broadcasting services via electronic communications network, except the cases where the information may be related to a well-known subscriber or user who receives such information.[3]

     

    4. Another important term in this article is ‘secret interception’ of conversations in private places which is conducted by technical means. Interception of communication is secret when the legislation empowers the authorities to conduct secret interception of communications of persons in private places without obliging the authorities to inform them of the measures taken against them.[4] However, secret interception of communications must be in line with the requirements as provided by the letters ‘a’ to ‘c’ of the paragraph 1 of article 221 and with the Article 8 of the ECHR. The European Court of Human Rights (ECtHR) in its decision “(Zakharov)[5]stated that interception can be secret when the domestic law had pursued the legitimate aims of the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country. It remains to be ascertained whether the domestic law is accessible and contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society.” In addition, ‘secret surveillance’ needs to be distinguished from ‘secret interception’. Interception of conversation is done by technical means while recording of conversations is provided. Surveillance as such should be understood in a broader sense including also video and photographic interception. However, both secret surveillance and interception shall be in accordance with the national law. In case (Klass)^[6], the ECtHR decided that powers of secret surveillance are tolerable under Convention only when it is necessary for safeguarding the democratic institutions. Additionally, the ECtHR emphasized the necessity that the national law of a state shall foresee guarantees that will protect persons from the arbitrary interferences of state authorities. Thus, procedural guarantees for secret interception and secret surveillance are foreseen in the following Articles 222-226.

     

    5. In the first paragraph of the article the legislator uses the term ‘private place’ to describe where shall be allowed an interception of communications but does not give a definition within this law. Referring to the Constitution respectively to the Article 37, ‘residence’ can correspond to a private place in a narrow sense and addressing to the High Court jurisprudence, a private place can be a home or an office where any person who enters is ‘under the control of the owner’.[7] This jurisprudence of the High Court is in line with the jurisprudence of the ECtHR. Respectively, the notion of “home” is an autonomous concept (Chiragov)[8]  and it is not limited only to traditional residences[9], it includes, among other things, caravans and other unfixed abodes (Chapman)[10] and furthermore extends to a professional person’s office or business premises (Niemietz)[11]. Having in mind the jurisprudence of ECtHR is obvious that private place guarantees the right to respect private life of one individual.

     

    6. According to the letter ‘a’ paragraph 1, interception is allowed in the course of a proceeding for ‘crimes committed by intent’ punishable by not less than seven years’ imprisonment. This is in accordance with the requirement of the United Nation Convention Against Transnational Organized Crime (The Palermo Convention)[12] and it is an added procedural and a human right guaranty. The limit to seven years maximum, for the interception of criminal offences, it might lower the cases of unjustified interception by the procedural bodies and protects the constitutional rights of the person better. Interception of communications is allowed only for crimes committed by intent, committed by means of telecommunication or similar technology (letter b), and criminal offences described in Article 75/a, paragraph 1, letter ‘a’ CrPC, essentially offences adjudicated by the Anti-Corruption and Organised Crime Court (letter c).[13]

     

    7. The second paragraph of this article deals with interception in ‘public places’. According to the 2017 amendments, such interception is only admissible to investigate criminal offences punishable by a maximum term of at least three years (as opposed to two years before the amendment).[14] Different from interception in private places, where fundamental rights of individuals for privacy constitute a particular concern for the legislator to balance the necessity of interference with human rights of persons concerned by this measure, interception in ‘public places’ constitutes a lesser interference. This is the reason why the legislator allows such interception for less serious criminal offences in comparison to paragraph 1, i.e. for intentional criminal offences punishable by a maximum term of at least three years. However, in most of the cases criminal activity intends to avoid public places, why the legislator tries to facilitate this interception process.[15] (see comments under paragraph 4)
    8. The Criminal Procedure Code does not provide a definition of ‘public place’. A description of ‘public place’ is given in Venice Commission Opinion on Video Surveillance in Public Places, where is stated that “a public area is a place which can be in principle accessed by anyone freely, indiscriminately, at any time and under any circumstances. Public areas are open to the public.”[16] Surveillances in public places sometimes can occur incidentally since nowadays for security reasons cameras are installed by local authorities in public places (Peck)[17]. In this case surveillance prevented crime. However, surveillance in public places has to be justified, meaning it has to be necessary to protect national security, public safety, prevention of a crime, or it has to serve for the protection of the rights and freedoms of others. People should be notified of their being surveyed in public places, unless the surveillance system is obvious.[18]

     

    9. After having defined the material preconditions of interception in the first two paragraphs, the third paragraph of the article defines its subjective preconditions. Interception may only be ordered against a limited circle of persons enumerated in an exhaustive list, i.e. the suspect of a criminal offence himself (letter a) and suspects communicating with each other (letter b) but also against other persons who are not themselves parties to the procedure. Those third persons can therefore also lawfully be subject to interception of their communication if they are not suspect to have committed any criminal offence, i.e. persons who takes part in transactions with the suspect (letter c). Moreover, precondition can be related for ordering interception or surveillance (or both) of the person that may lead to the discovery of the location or identity of a suspect (letter ç).

     

    10. The fourth paragraph of the article makes clear that the findings made through the interceptions may be used against any of the persons communication with one another, i.e. if in the course of the interception new offences or new offenders are found.[19]

     

    11. The fifth paragraph of the article mentions ‘preventive interception’ referring to the applicable legislation, which is the Law on Interception of Electronic Communications. Article 2 of that Law defines ‘preventive interception’.[20] According to paragraph 5 of article 221 outcomes cannot be used as evidence in a trial. In that respect, paragraph 5 must be seen as a mere reference to a different law and is of no relevance for issues concerning criminal procedures, as the purpose of procedural interception is to search for evidence which can be eventually used in a trial. Law on Interception of Electronic Communications amended in 2017 refers to procedural interception as interception by court decision.[21]

     

    [1] Law No. 9918, dated 19.05.2008 on Electronic Communications in the Republic of Albania.

    [2] Article 3 para. 6 of the Law No. 9157 dated 04.12.2003 on Interception of Electronic Communications.

    [3] Article 3, para. 13 of the Law No. 9918, Dated 19.05.2008 on Electronic Communications in the Republic of Albania.

    [4] Factsheet of the European Court of Human Rights Accessible here: http://www.echr.coe.int/Documents/FS_Mass_surveillance_ENG.pdf

    [5] Roman Zakharov v. Russia, 04.12.2015, Application no. 47143/06, para. (b).

    [6] Klass and Others v. Germany, 06.09.1978, Application no. 5029/71, para. 42.

    [7] Decision No. 00-2015-3108, date 21.12.2015, Criminal Panel of the High Court, Durres Prosecution Office v. Shpetim Shala on Trafficking of narcotics and Failure to report a crime.

    [8] Chiragov and Others v. Armenia, 16.06.2015, Application no. 13216/05, para. 206.

    [9] Chapman case refers to the Gypsies' traditional lifestyle of living in mobile homes which allow travelling.

    [10] Chapman v. the United Kingdom, 18.01.2001, Application no. 27238/95, para. 71-74.

    [11] Niemietz v. Germany, 16.12.1992, Application no. 13710/88, para. 29-31.

    [12] According to Law no. 8920, date 11.7.2002 on the ratification of the Convention by the Republic of Albania, Article 2, letter b, describes “serious crimes” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty.

    [13] Article 221 paragraph 1, letters a, b, c of the Criminal Procedure Code, amended by the Law No. 35/2017 of 30.03.2017.

    [14] Article 221 paragraph 2, according to the Criminal Procedure Code version of 2014 (2. Secret photographic, filmed or video surveillance of persons in public places and use of tracking devices of whereabouts are permitted only when there is a proceeding for intentionally committed crimes which a punishment of imprisonment of no less than two years is provided.)

    [15] Ivas Konini, Disertacion për mbrojtjen e gradës shkencore “Doktor”, Tiparet strukturore dhe instrumentet ligjore të hetimit paraprak. Përgjimet si një mjet i rëndësishëm i kërkimit të provës gjatë procesit të hetimit, Universiteti i Tiranës, Fakulteti i Drejtësisë, p. 8.

    [16] Venice Commission Opinion on Video Surveillances in Public Places by Public Authorities and the Protection of Human Rights, adopted by the Venice Commission at its 70^th Plenary Session, Venice, 16-17 March 2007, p. 4.

    [17] Peck v. United Kingdom, 28.01.2003, Application no. 44647/98, para. 57-63.

    [18] Venice Commission Opinion on Video Surveillances in Public Places by Public Authorities and the Protection of Human Rights, adopted by the Venice Commission at its 70^th Plenary Session, Venice, 16-17 March 2007, p. 15.

    [19] Decision no. 00-2011-946 (129), dated 12.10.2011, Criminal Panel of the High Court, D.SH. v. Prosecution Office at the Serious Crime Court of Tirana, on the evaluation of the authorization of the prosecutor date 17.11.2010 for the interception of the telephone numbers.

    [20] The purpose of the preventive interception is to increase the effectiveness of the activity of intelligence state institutions for the discovery of the unconstitutional, criminal, and delinquent activity, as well as to prevent the consequences that might derive from this activity.

    [21] Law No. 9157, date 4.12.2003 on Interception of Electronic Communications,

    “Article 23

    Interception by court decision

    (Amended by law no. 69/2017 article 21)

    1. The technical processes of interception of electronic communications, through telecommunication equipments, for the purpose of preliminary investigations, shall be conducted according to the articles 221 to 226 of the Criminal Procedure Code. 2. The prosecutor of the competent prosecutor’s office, by an official act, accompanies and communicates the court decision to the electronic interception structure at the General Prosecution Office or Special Prosecution Office according to their competences. 3. The technical process of the listening and transcription may be conducted as well at the prosecution offices of the general jurisdiction and at the Special Prosecution Office according to their competences.”
  • Historic context
    12. Interception of communications as a technique has been used since the invention of distant communication tools to prevent and/or to investigate criminal offences.[1]

      

    13. The Current Criminal Procedure Code was adopted in 1995. Article 221 was amended twice, in 2004 and recently in 2017. These amendments intended to fulfil the international standards and to increase the efficiency of the investigations. In the Analysis of the Justice System, the efficiency of the investigations is also prevented by the deficiency of legislation regarding the interception of communications.[2] Hence, the amendment of this article was necessary to distinguish interception and surveillance in public and private places in order to ensure more guarantees of interception in public and private places.

     

    [1] In Albania, until lately the interception of communication was not explicitly mentioned in the criminal procedural law. The first Albanian Criminal Code, issued in 1928 during the time of monarchy, guaranteed the freedom and secrecy of correspondence and was in accordance with the human rights principles of the time.  Furthermore, in the Fundamental Statue of the Kingdom of Albania (1928) was foreseen as a constitutional right the inviolability of private places and the secrecy of correspondence.

    In the Albanian Criminal Code of 1952, during the communist period, had no provision regarding the freedom and secrecy of correspondence, despite the fact that the Code was issued after the approval of the Universal Declaration on Human Rights (1948). During this period, interception of communications was conducted by the sequestration of the post-telegraphic correspondence authorized by the prosecutor.

    The Criminal Code of 1977 mentioned the infringement of secrecy of correspondence as a criminal offence, but applicability of such a provision was not adequate having in mind the ideology of the time.

    [2] Analysis of the Justice System in Albania, June 2015, drafted by the High Level Experts Group attached at the Ad Hoc Parliamentary Commission on the Justice System Reform, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last time visited on 21.08.2017; p. 142.

  • International acts
    14. Interception of mail and telephone will always be an interference with the fundamental Right of private life, family life and correspondence, as enshrined in Article 8 Para. 1 of the European Convention on Human Rights (ECHR). According to its Article 8 Para. 2, however, interferences will be justified if they are

    -     in accordance with the law,

    -     necessary in a democratic society,

    -    in persistence of a legitimate aim as identified in the Article 8 Para. 2 of the European Convention on Human Rights. 

     

    15. The European Court of Human Rights (ECtHR) dealt with the issue in several decisions and held that “[t]apping and other forms of interception of telephone conversations represent a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (Kruslin) [1], (Huvig)[2].” 

     

    16. An interference will be “in accordance with law”, if it has a legal basis, which is sufficiently precise and contains protection against arbitrary application by public authorities.[3] In (Malone)[4], the ECtHR held, that telephone-tapping regulated by administrative practice, the details of which were not published, which could be changed at any time, constituted a violation of Article 8. 

     

    17. It rests with the state authorities to guarantee that interference is in accordance with the Article 8 of the European Convention on Human Rights (ECHR)[5]. According to the ECtHR’s case law and Article 8 ECHR the interference to the communication must be necessary for the protection of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[6] Limitations set by the articles 221 and 222 follows the standards determined by the ECtHR regarding the criteria that shall be sanctioned in a law that allows the interception of communications.[7]

      

    18. Furthermore, Article 8 ECHR requires a certain “foreseeability of the law” concerned, which must be accessible and formulated with sufficient precision to enable the persons concerned to foresee the consequences which a given action may entail.[8]

      

    19. Any interference must also be “necessary in a democratic society”; the ECtHR held that “the notion of necessity implies that an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (Olsson).”[9]

      

    20. A “legitimate aim”, is one of the aims listed by Article 8 paragraph 2 ECHR, which are interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, protection of the rights and freedoms of others. The state concerned has a wide margin of appreciation in identifying the objectives of the interference, as the grounds for permissible interference are very wide (Handyside[10]).^[11]

      

    21. Very importantly, finally the ECtHR stresses the importance of “adequate and effective guarantees against abuse” of the system. According to the ECtHR, the assessment, whether such guarantees are adequate, “depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law (Klass).”[12] As a consequence, the ECtHR, in principle, desires judicial control of surveillance, but in any case there must be a supervisory body independent of the authorities carrying out the surveillance, which has sufficient powers to exercise an effective and continuous control.[13]

      

    22. Similar to the ECHR, also the Charter of Fundamental Rights of the European Union, December 2000, has a comparable, specific provision on the right to respect for private life. Article 7 of the Charter provides the right of every citizen “to respect for his private and family life, home and communications”.

      

    23. 23. Directive 95/46/EC 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 on the free movement of such data.

      

    24. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).

      

    25. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006, on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. (This Directive was declared invalid[14] by the Judgment of ECJ (Grand Chamber) of 8 April 2014 in joined cases C 293/12 and C 594/12, accessible here: http://curia.europa.eu/juris/document/document.jsf?docid=150642&doclang=EN)

      

    26. The United Nations Convention against Transnational Organized Crime, Palermo 2000, gives the definition of “serious crimes” that shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty. Article 2 letter (b) of the Convention.

     

    [1] Kruslin v. France, 24.04.1990, Application no. 11801/85, para. 33.

    [2] Huvig v. France, 24.04.1990, Application no. 11105/84, para. 32.

    [3] Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001, p. 25.

    [4] Malone v. the United Kingdom, 02.10.1984, Application no. 8691/79. 

    [5] Jan Oster, European and International Media Law, Cambridge University Press, 2017, p. 320.

    [6] Klass and others v. Germany, 06.09.1978, Application no. 5029/71, para. 41; Malone v. United Kingdom, 02.10.1984, Application no. 8691/79, para. 64; Liberty and others v. United Kingdom, 01.07.2008, Application no. 58243/00, para. 56.

    [7] Valenzuela Contreras v. Spain, 30.07.1998, Application no.   27671/95, concludes that “In sphere of monitoring telephone communications guarantees stating extent of authorities’ discretion and manner in which it was to be exercised had to be set out in detail in domestic law in order for it to have binding force which circumscribed judges’ discretion in application of such measures”.)

    [8] Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001, p. 26

    [9] Olsson v. Sweden (No. I), 24.03.1988, Application no. 57324/08, para. 67.

    [10] Handyside v. the United Kingdom, 07.12.1976, Application no. 5493/72, paras. 48- 49.

    [11] Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001, p. 30.

    [12] Klass and Others v. Germany, 06.09.1978, Application no. 5029/71, para.50.

    [13] Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001, p. 48.

    [14] Hilaire Barnett, Constitutional & Administrative Law, Twelfth edition, May 2017, p. 546.

• International standards/International references/Best examples

   A.    Reports, opinions, recommendations and statements

  27. Factsheet of the European Court of Human Rights on Mass surveillance. Accessible here: http://www.echr.coe.int/Documents/FS_Mass_surveillance_ENG.pdf

   

  28. Venice Commission Opinion on Video Surveillances in Public Places by Public Authorities and the Protection of Human Rights, adopted by the Venice Commission at its 70^th Plenary Session, Venice, 16-17 March 2007.

    

  B.     Decisions of European Courts of Human Rights

   Klass and Others v. Germany, 06.09.1978, Application no. 5029/71

  29. Chiragov and Others v. Armenia, 16.06.2015, Application no. 13216/05
  30. Chapman v. the United Kingdom, 18.01.2001, Application no. 27238/95
  31. Niemietz v. Germany, 16.12.1992, Application no. 13710/88
  32. Kruslin v. France, 24.04.1990, Application no. 11801/85
  33. Huvig v. France, 24.04.1990, Application no. 11105/84
  34. Malone v. the United Kingdom, 02.10.1984, Application no. 8691/79
  35. Liberty and others v. United Kingdom, 01.07.2008, Application no. 58243/00
  36. Valenzuela Contreras v. Spain, 30.07.1998, Application no. 27671/95
  37. Olsson v. Sweden (No. I), 24.03.1988, Application no. 57324/08
  38. Handyside v. the United Kingdom, 07.12.1976, Application no. 5493/72
  39. Roman Zakharov v. Russia, 04.12.2015, Application no. 47143/06
  40. Peck v. United Kingdom, 28.01.2003, Application no. 44647/98
• Legislative material
  42. Analysis of the Justice System in Albania, June 2015, drafted by the High Level Experts Group attached at the Ad Hoc Parliamentary Commission on the Justice System Reform, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last time visited on 21.08.2017; 

  43. Explanatory report on the “Criminal Procedure Code of the Republic of Albania”, https://www.parlament.al/wp-content/uploads/2017/01/RELACION-SHTESA-E-NDRYSHIME-7905-KODI-I-PROCEDURES-PENALE-Resized.pdf , last time visited on 21.08.2017
• Related articles

  Constitution: 

  44. Article 17 - “1. The limitation of the rights and freedoms provided for in this Constitution may be established only by law for a public interest or for the protection of the rights of others. A limitation shall be in proportion with the situation that has dictated it. 2. These limitations may not infringe the essence of the rights and freedoms and in no case, may exceed the limitations provided for in the European Convention on Human Rights.” 

  45. Article 36 - “The freedom and secrecy of correspondence or any other means of communication are guaranteed.”

   

   Law: 

  46. Article 221-226 of the Law No.7905, date 21.3.1995 (amended) Criminal Procedure Code of the Republic of Albania; 

  47. Law no. 9157, dated 4.12.2003, on the Interception of Electronic Communications; 

  48. Law no. 9918, dated 19.05.2008, on electronic communications in the Republic of Albania; 

  49. Law no. 8920, dated 11.7.2002 on the ratification of the United Nations Convention against Transnational Organized Crime by the Republic of Albania.
• Sublegal acts
  No Comment
• Decisions

   Decisions of the High Court 

  50. Decision no. 00-2011-946 (129), dated 12.10.2011, Criminal Panel of the High Court, D.SH. v. Prosecution Office at the Serious Crime Court of Tirana, on the evaluation of the authorization of the prosecutor date 17.11.2010 for the interception of the telephone numbers; 

  51. Decision No. 00-2015-3108, date 21.12.2015, Criminal Panel of the High Court, Durres Prosecution Office v. Shpetim Shala on Trafficking of narcotics and Failure to report a crime.
• Literature
  52. Order of the General Prosecutor, date 21.04.2006, on interception. 

  53. Jan Oster, European and International Media Law, Cambridge University Press, 2017. 

  54. Hilaire Barnett, Constitutional & Administrative Law, Twelfth edition, May 2017. 

  55. Ivas Konini, Disertacion për mbrojtjen e grades shkencore “Doktor”, Tiparet strukturore dhe instrumentet ligjore të hetimit paraprak. Përgjimet si një mjet i rëndësishëm i kërkimit të provës gjatë procesit të hetimit, Universiteti i Tiranës, Fakulteti i Drejtësisë. 

  56. Ursula Kilkelly, A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001. 

  57. Raport i Prokurorit të Përgjithshëm mbi gjendjen e kriminalitetit për vitin 2016.
• Archive
  58. Fundamental Statue of the Kingdom of Albania (1928)
  59. Criminal Code (1928)
  60. Criminal Code (1952)
  61. Criminal Code (1977)
  62. Criminal Procedure Code (1953)