Table of Content

• Comments
  • Purpose
    1. Article 247 of the Criminal Procedure Code intends to specify the cases when the person with a security measure is declared escaped.
  • Scope
    2. Article 247 of the Criminal Procedure Code regulates the actions that have to be undertaken by the judicial police officer or agent and then the court to declare the defendant escaped in accordance with the law. The legislator makes sure that, even in this aspect, after the court examines the full search that has been carried out, it shall declare the escape of the defendant charging, the appointed defence counsel with the duty of the defence. The provisions of article 247 of the Criminal Procedure Code are material as well as procedural ones.        
  • Comments
    3. The first paragraph of article 247 of the Criminal Procedure Code stipulates that when the person with a measure is not found, the judicial police officer or agent keeps minutes, where he reflects the search that has been conducted and shows it to the court which has rendered the decision. Through this provision, the legislator provides for the legal obligation for the judicial police officer or agent who will execute the court order regarding the security measure rendered by the court, reflecting this fact in the respective minutes where he will have to describe all the actions carried out regarding the search of the person against whom the measure is rendered.

      

    4. All the actions carried out by the judicial police officer or agent regarding the search of the person against whom the respective court has rendered a measure, according to the provisions of the second paragraph of article 247 of the Criminal Procedure Code will be examined by the court to conclude if the search has been complete or not. In case the court deems that the search that has been carried out is complete, then the court declares the escape of the person, appoints a defence counsel and orders that the copy of the decision, through which the applied measure has been applied, shall be filed in the secretary. The above obligation for the court is an additional guarantee for the defendant declared as escaped to be defended. The right to be defended is a constitutional right provided for in article 31 of the Constitution of the Republic of Albania as well as in article 6 of the European Convention of Human Rights. What is mentioned above, is in compliance with the provisions of article 14 of the International Convention on Civil and Political Rights. This case has received the special attention of the Constitutional Court of the Republic of Albania, which explains as follows, through it decision no. 37, dated 24.12.2010: “in order for the right of protection to be real, effective and not just theoretical, its exercise should not be prevented, but on the contrary, the court shall take all the legal measures, in the function of the fair process, [...] to ensure a real protection to him, respecting the equality of arms.”

     

    5. In its jurisprudence, the Constitutional Court has emphasized that, particularly in the criminal process, the equality of the arms, the contradiction and, closely connected with them, the realization of the defence for the defendant, guaranteed expressively by article 31 of the convention and article 6 of the European Convention of Human Rights, constitute the most essential elements of the due legal process in the constitutional meaning.

     

    6. We are in the phase of the preliminary investigations, when the security measure has been rendered. This means that the declaration of the escape is not equalled with the trial in absentia. Furthermore, based on the provisions of article 141 paragraphs 2 and 3 of the Criminal Procedure Code, it results that the effects of the absence in the preliminary investigation are dismissed as soon as the investigation is closed. Also, the provisions of article 332/b strengthen this interpretation. According to this provision, it is the duty of the court to verify the presence of the parties and to order the repetition of the notifications in the cases provided in the provision. The same thing can be said about articles 350-352 of the Criminal Procedure Code, which, in their general spirit, require a non-formal approach regarding the presence of the defendant.

     

    7. With law no. 35/2017, in article 247, after the third paragraph, paragraph 3/1 has been added. Here, the legislator provides the definition of the escaped person considering as such the person who despite being aware avoids, willingly, the enforcement of the security measures provided for in articles 233 (Prohibition to expatriate), 235 (Prohibition and obligation to reside in a certain place), 237 (House arrest) and 238 (Precautionary detention in prison) of the Criminal Procedure Code, or the sentence with imprisonment. Through this provision, the purpose of the legislator is to discipline the scope of the concept of the escaped person extending it only within the cases provided for by the provision itself and not beyond it.

     

    8. The element “being aware” in this provision is related to the doctrine of waiving in general. So, it is presumed that the defendant has been informed regarding the decision on the security measure or the sentence. Informing the defendant is carried out in compliance with the provisions of article 246 of the Criminal Procedure Code.

     

    9. “Willingly” means that he has understood his obligation as well as the consequences of avoiding enforcing the measure with his full will. In this context, it is the duty of the court to evaluate the fulfilment of the obligations and of the legal orders of this provision by the judicial police officer or agent. Also, the court shall appoint the defence counsel who will represent the interests of the defendant who has been declared “escaped”, through a court decision.

     

    10. According to the provisions of paragraph 3/2, added after paragraph 3/1 with law no. 35/2017, the procedural consequences of the escape are valid only within the proceeding for which it has been declared. Also, the legislator provides for even the time limit within which the status “escaped” is valid. This status is valid until the execution measure is enforced, revoked, loses its effects, or when the criminal offence or the sentence, for which the measure has been rendered, is dismissed. The above provision intends to avoid the abuses in the practice of enforcing the security measures ordered by the court. The status of escape finishes naturally in the moment when the security measure is executed. The revocation of the security measure by the court means that the security measure does not exist any more. According to the provisions of article 260 of the Criminal Procedure Code, the court may revoke the coercive or the prohibitive measure when it results that the conditions and the criteria for their enforcement do not exist. Under these conditions, the concept of the status “escaped”, declared by the court falls, due to enforcement of the security measure. The dismissal of the criminal offence is provided for in the Criminal Procedure Code article 290, as one of the grounds which do not permit the commencement of the proceeding; and if it has started, it shall be dismissed, despite its status, if this circumstance is found. Under this provision, the status “escaped”, declared by the court for a certain criminal offence, cannot continue, as long as the criminal offence for which it has been rendered, does not exist any more.

         

    11. The fourth paragraph of article 247 of the Civil Procedure Code equalizes legally for every effect, the escaped person with the person leaving the place where he is being held under custody. This means that the escape shall be declared even in the cases when the person who is serving the security measure avoids it voluntarily.

     

    12. The fifth paragraph of article 247 of the Criminal Procedure Code provides for the opportunity for the court to facilitate the search of the escaped person by ordering the interception of the phone calls and of the other communication forms. Interception as a means to search for evidence is provided for in articles 221 to 226 of the Criminal Procedure Code. The right for the secrecy of the conversations and communication may be limited only in the cases and the mode provided for by the law. The provision of the fifth paragraph of article 247 has been included by the legislator himself as one of the cases which limit this right.
  • Historic context
    13. These are some of the objectives foreseen in the field of criminal justice, in the Document “Strategy of the Reform in the Justice System”, adopted with decision no. 15, dated 30.07.2015 of the Special Commission: (1) Increasing the efficiency and the effectiveness of criminal justice through the consolidation of the mission and the functions of the prosecutor’s office as well as through the reorganization of its structures and the redelivery of the responsibilities among them; (2) The strengthening of the procedural guarantees in the phase of the preliminary investigations 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 as well as in article 247 (Search of the person who cannot be found), in chapter “Determination and enforcement of the security measures”.  
  • International acts
    14. European Convention of Human Rights provides for in article 6 (3) (c) the right of the person under investigation or of the defendant to defend himself or to be defended by a legal defence counsel chosen by him. ECHR does not require the presence of the defendant in the judicial examination, such as the case of International Convention on Civil and Political Rights.
• International standards/International references/Best examples

  Decisions of European Court of Human Rights

  15. The purpose of the provisions of article 247 of the Criminal Procedure Code is in compliance with the jurisprudence of the ECtHR, which has emphasized that the authority that proceeds, shall not declare the defendant in absentia, just based on the fact that he was not found in a certain address, (Colozza)[1]. So, the formal approach towards the notification is unacceptable for the ECtHR and the authority that proceeds shall undertake all the reasonable steps to notify the defendant.

   

  16. Also, the ECtHR states that it is the duty of the court (which proceeds) to guarantee to the defendant, including even the defendant at large, the presence in the hearing, during the procedure for the first time as well as during the process against him (Sejdovic)[2].

   

  [1] Colozza v. Italisë, 12.02.1985, Application no. 9024/80.

  [2] Sejdovic v. Italisë, 24.03.2005, Application no. 9808/02, para. 84.

• Legislative material

  Analysis of the Justice System in Albania June, 2015.

• Related articles

  Criminal Procedure Code:

  Article 233

  Article 235

  Article 237

  Article 238

• Sublegal acts
  No Comment
• Decisions

  Decision of the High Court of the Republic of Albania

  Decision no.279, dated 04.06.2008 of the Criminal College of High Court; No.1515/741/112 i Reg. No. 279 of the Decision of the Criminal College of the High Court.

  Decisions of the Constitutional Court of the Republic of Albania

  Decision no.  37, dated 24.12.2010, Ilmir Hajdari, Repeal of decision no.279, dated 04.06.2008 of the Criminal College of the High Court, as incompatible with the Constitution No. 279 of the Decision of the Criminal College of the High Court.

  Decisions of the European Court of Human Rights 

  Sejdovic v. Italy, 24 March 2005, Application no. 9808/02;

  Colozza v. Italy, 12 February 1985, Application no. 9024/80.

• Literature
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• Archive
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