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 Law against a suspected person, in order to provide necessary evidence to establish whether a criminal offence has been or will be committed. Article 222 sets strong procedural rules which guarantees that interception of communications is not abused.
  • Scope
    2. Article 222 foresees procedural rules for the permission, time limits and the content of decisions. Moreover, it describes the procedures for issuing decisions permitting interception. As a principle, Article 222, paragraph 1, foresees the obligation of the court to authorize interception in “private communication” upon a reasoned decision, before it can be executed. Paragraphs 2 and 3 foresee exceptions to that rule, especially for cases if otherwise serious damage could be inflicted to the investigation.

     

    3. Article 222, paragraph 4, 5 and 7, foresee procedural regulations, notably by indicating maximum time limits for the taking of decisions, in order to ensure that decisions are issued within a reasonable time, procedural rules for appeal procedures and procedural guarantees by setting time limits for the maximum duration of interception actions [1]

     

    4. Article 222, paragraphs 4 and 6 foresees special rules for accessing private places, paragraph 8 describes the procedure for interception and tracing in public places[2].

     

    [1]Explanatory report of the Criminal Procedure Code, p. 21. Accessible: https://www.parlament.al/wp-content/uploads/KODI-I-PROCEDURES-PENALE-Resized.pdf (last seen 13.09.2017)

    [2] Regarding definition of ‘private place’ and ‘public place’ see comment no. 5 and 8 of Article 221.

  • Comments
    5. Albanian legislation distinguishes between two different categories of interception of communications: procedural interception and preventive interception. Procedural interception is regulated by the Criminal Procedure Code, which, by its definition, determines the rules on the way to conduct criminal prosecution, investigation and trial of criminal offences, Article 2 para. 1. Preventive interception is regulated by a separate law, i.e. Law No. 9157, dated 4.12.2003 on Interception of Electronic Communications (amended).[1] The main difference between preventive interception form procedural one is that preventive interception is done only in very rare and specific cases and the outcome of preventive interception cannot be used as an evidence in the court. (see comment no. 11 of Article 221)

     

    6. Article 222, paragraph 1, sets the regular procedure for all cases of interception as listed in Article 221, paragraph 1.

    Upon (written) request of the prosecutor, the Court shall issue a decision authorizing (or rejecting) the request and give reasons for its decision. At the same time, paragraph 1 formulates the prerequisites for the authorization, which also must be examined by the Court and be subject of its reasoning:

    First, the interception must be indispensable for the investigation. That means, the Court has to examine whether no other investigation techniques constituting a lesser interference of the fundamental rights of the person concerned would feasibly also lead to the desired result.

     

    7. Secondly, a “reasonable suspicion” against the suspect must be given in order to authorize the interception. The CrPC does not provide a definition of ‘reasonable suspicion’. However, reasonable doubt could be seen as “the existence of juridical elements and factual circumstances that convince the court that the person under investigation could have committed a criminal offence as stated in a High Court decision” [2] In the context of ECtHR the 'reasonableness' of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 para. 1 (c) of the Convention. Having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (Stepuleac)[3].

     

    8. While the definition of “evidence” it is provided in Article 149 CrPC.

     

    9. Article 222, paragraph 2, as an exception to paragraph 1, foresees cases when the prosecutor may decide upon the interception without prior court authorisation by a substantial act. The prosecutor may do so only where two prerequisites are met:

    - First, the conditions set in Article 222, paragraph 1, must be met, i.e. the Court would authorize the interception, as the interception is indispensable for the investigation and a ‘reasonable doubt’ against the suspect is given.  

    - Second, the Prosecutor has reasonable grounds to believe that waiting for a prior court authorisation would inflict serious damage to the investigation.  

    ECtHR recognises also authorisation of the interception from the prosecutor, without prior court authorisation. These are the cases where the special circumstances are met, and the prosecutor later has to give reasons for the request, arguing for the necessity of secret surveillance.  Reasonable grounds for interception without prior court authorisation could be found in Szabó[4] case. The ECtHR accepted that it was a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies, including massive monitoring of communications, in pre-empting impending incidents. However, the ECtHR was not convinced that the legislation in question provided sufficient safeguards to avoid abuse.[5] It is important to emphasise that interception authorised only by the prosecutor and for which court authorisation is needed (even afterwards, within the time limits foreseen in the Law), cannot be used as evidence unless it is post authorised by the court (see paragraph 11).

     

    10. The term “serious damage” used in this paragraph is not defined by the CrPC, nor has it yet been interpreted by the Albanian jurisprudence. The Convention on Human Rights neither defines “serious damage”.[6] In any case, one must bear in mind that the European Court of Human Rights stresses the importance of ‘adequate and effective guarantees against abuse’ of interferences into the fundamental right of private life, family life and correspondence by interception of communications, and consequently, in principle, desires judicial control of such interception.[7] Therefore, “simple damage” or “regular damage” will not be sufficient to allow departure from the principle of prior court authorisation, as set by Article 222, paragraph 1, CrPC. On the contrary, the prosecutor will have to invoke specific circumstances or grounds to reason why in the specific case waiting for (prior) court authorisation would cause a risk inflicting such damage that goes beyond the risk immanent in any investigation, meaning that there is a real risk that crucial pieces of evidence would be lost if not acting immediately. The prosecutor will have to indicate these specific circumstances in a reasoned act.

     

    11. According to paragraph 2 the prosecutor is entitled to establish the interception, and must inform the court thereof, immediately, but not later than twenty-four hours of the decision being taken and request the validation of his decision taken. Article 222, paragraph 2, explicitly foresees a duty to inform, but not to request validation by the Court. However, that logically follows from paragraph 2, last sentence, read in conjunction with paragraph 4, first sentence, foreseeing the duty of the Court to decide upon the request of the prosecutor. The Court must then validate the decision taken by the Prosecutor. If the Court does not validate the decision, the interception - which has already started factually - must be stopped immediately and its outcome cannot be used for the further criminal procedure. The results will have to be destroyed. The time limit of the court for deciding on the validation is set by the general rule of Article 222 para. 4, i.e. the court shall rule by reasoned decision in closed session within 24 hours of the submission of the prosecutor’s request.

     

    12. Even though Article 222, paragraph 3, sets a case where the legislator foresees interception only upon the authorization of the prosecutor and does not explicitly says if such interception has to be revaluated by the court, it has to be noted that as follows. Paragraph 4 of this article provides for an obligation that interception grounded by the prosecutor in all cases foreseen by this article (paragraph 1-3) shall be post validated by the court. Thus, the will of the legislator was that the court decides on interception either prior it is preformed either after it is performed in these cases. The only exception to this rule is foreseen in the paragraph 2 of Article 221.

     

    13. Article 222, paragraph 4, first sentence, sets the time for the Court to decide upon a request of the prosecutor to either authorize interception, according to Article 222, paragraph 1, or - in the exceptional cases of paragraph 2 - to validate the act of the Prosecutor already having established an interception in case of serious danger ahead. Within 24 hours of the request of the prosecutor being submitted, the Court shall take a reasoned decision in camera to authorize/validate an interception or reject the request of the Prosecutor. The second sentence of this paragraph, describes the appeal procedure to be followed in case of a Court decision rejecting the request of the Prosecutor. The Prosecutor may file a special complaint with the appeal court within 24 hours. The appeal court then must decide upon the complaint within 48 hours, starting from the receipt of the acts. While the last sentence, foresees that, submitting the request for the validation of interception does not result in its suspension. This norm seems to be dislocated and - according to the literal interpretation - can be connected only with the provisions foreseen in Article 222, paragraph 2. It clarifies that, in the case that waiting for a prior court authorisation would inflict serious damage to the investigation, the Prosecutor may start its practical execution. The validation of the interception and the usability of its results will be granted only ex-post. Systematically, the same would apply during the course of the appeal procedure, after the first instance Court having rejected the request for validation. Taking into account the very short deadlines for both instances, the interception will continue until a final Court decision has been issued on its validation. Upon (final) refusal, its execution must be stopped immediately, and its outcome cannot be used for the further criminal procedure and must be destroyed.

     

    14. Article 222, paragraph 5, indicates an important procedural element, i.e. the duration of the interception, to be foreseen by the interception decision, as amended by Law No. 35/2017 of 30.03.2017, article 118, this paragraph obliges the Prosecutor to indicate the method and the maximum duration of actions, which cannot exceed 15 days. In case an extension is necessary for the course of the investigation, the Prosecutor has to submit a reasoned request to the Court requesting the extension by up to another 15 days. In the reasoned request the Prosecutor will have to outline that the conditions of Article 222, paragraph 1, are (still) fulfilled and the first period of interception resulted in facts or circumstances dictating the need for extending the period. In the reasoned request, the prosecutor will have to describe what these facts and circumstances are. The procedure and time limit the Court has to follow and the procedure for an eventual complaint against a rejecting Court decision are set by Article 222 paragraph 4.

     

    15. Article 222, paragraph 6, describes the special case of a judicial police officer or a qualified specialist needing to access secretly private locations[8] in order to conduct interception of conversations or secret photographic or video interception. As this entails a special interference with the fundamental right of private and family life, Paragraph 6 foresees a Court decision requirement for such a case. That means, the Prosecutor will have to indicate and reason the necessity in the request for authorization, validation or extension of interception, and the Court must then explicitly authorize to access the said locations secretly. Article 222, paragraph 6, also foresees a time limit for implementation of this authorization of 15 days. In such a case Article 8 of the ECHR has to be taken into consideration in order not to violate the right to respect for private and family life. In the case (Antovic)[9]the ECtHR held “that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life and hence it considers that it constitutes an interference within the meaning of Article 8.”

     

    16. Article 222, paragraph 7, clarifies that all acts ordering, authorizing, upholding or extending the interceptions, as well as initiation or ending of any interception measure, shall be kept in the register at the prosecution office. Also, the materials obtained by the interception may be shared only with authorized persons.

     

    17. Article 222, paragraph 8, finally, clarifies that interception for those cases foreseen in Article 221, paragraph 2, i.e. interception in public places or the use of tracing means for the location, may be established by the Prosecutor, without involvement of the Court and without the need to have interception authorized/validated. As interception in a public place constitutes a lesser interference in the fundamental right of private life, family and communication, the legislator allows such action for interception to be authorized by the prosecutor only, without a Court decision requirement.[10]

     

    18. According to the Annual Report of the General Prosecutor on the situation of the criminality, in the year 2016 there were 2283 decisions executed, permitting interception in regard to 676 criminal proceedings. 3943 suspects were intercepted.[11]

     

    [1]Accessible: http://www.qbz.gov.al/Ligje.pdf/komunikime%20elektronike/Ligj_9157_04122003_perditesuar_2017.pdf

    (last seen 25.09.2017)

    [2] Decision no. 61004-00923-00-2012, dated 03.10.201, District Prosecution of Elbasan versus A.H., Penal Chamber of the High Court, para. 15, p. 4.

    [3] Stepuleac v. Moldova, 06.11.2007, Application No. 8207/06, Para. 68.  

    [4] Szabó and Vissy v. Hungary, 12.01.2016, Application No. 37138/14

    [5] In its case-law on secret measures of surveillance, the ECtHR has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed. (Szabó, para. 56.)

    [6] Hamori, Altwicker, Peters, Measuring violation of human Rights, An Empirical Analysis of Awards in Respect of Non-Pecuniary Damage under the European Convention on Human Rights, accessible: http://www.mpil.de/files/pdf4/Quant_Human.Rights1.pdf  p. 6. (last seen 13.09.2017)

    [7] See comment no. 23 of Article 221.

    [8] See comment no. 5 on Article 221 and for the term “secret interception” refer to the comment no. 4 of the Article 221.

    [9] Antovic and Mirkovic v. Montenegro, 28.11.2017, Application No. 70838/13, Para. 55.

    [10] Regarding the term “public places” refer to the comment no. 8 of Article 221.

    [11] Raport i Prokurorit të Përgjithshëm mbi gjendjen e kriminalitetit për vitin 2016, p. 281.

  • Historic context
    19. Refer to comments 12-13 of Article 221.
  • International acts
    20. Refer to comments 14-26 of Article 221.
• International standards/International references/Best examples

  Reports, opinions, recommendations and statements 

  21. Refer to comment 27-28 of Article 221.  

  Decisions of European Courts of Human Rights 

  22. Szabó and Vissy v. Hungary, 12.01.2016, Application No. 37138/14.
  23. Antovic and Mirkovic v. Montenegro, 28.11.2017, Application No. 70838/13.
  24. Stepuleac v. Moldova, 06.11.2007, Application No. 8207/06.
  25. Kennedy v. The United Kingdom, 18.05.2010, Application No. 26839/05.
• Legislative material
  26. Refer to comments 42-43 of Article 221.
• Related articles
  27. Refer to comments 44-50 of Article 221.
• Sublegal acts
  No Comment
• Decisions

  Decisions of the High Court 

  28. Decision no. 61004-00923-00-2012, dated 03.10.201, District Prosecution of Elbasan versus A.H., Penal Chamber of the High Court.
• Literature
  29. Raport i Prokurorit të Përgjithshëm mbi gjendjen e kriminalitetit për vitin 2016. 

  30. Hamori, Altwicker, Peters, Measuring violation of human Rights, An Empirical Analysis of Awards in Respect of Non-Pecuniary Damage under the European Convention on Human Rights, accessible: http://www.mpil.de/files/pdf4/Quant_Human.Rights1.pdf
• Archive
  No Comment