KOMENTARI ELEKTRONIK
CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ALBANIA   |   7905

Article 279-a: Victim's right to information

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1For legitimate reasons, the victim, its legal representative or defense lawyer, are entitled to request information on the state of the proceedings, and to have access and receive copies of acts and evidence contained in the prosecutor’s file.

2The prosecutor may refuse the request if:

athe interest of preserving the secrecy of the investigation exceeds the victim's interest;

bthe interest of the defendant exceeds the victim's interest;

cthe victim has not yet been examined as a witness.

3The victim, its legal representative or defense lawyer are entitled to request information concerning the application, extension, replacement or revocation of precautionary measures against the defendant, unless the notice on these facts could endanger the life or health of the defendant.

Table of Content

      1. Article 279/a of CPC has a double purpose: guaranteeing the right of the victim to information and simultaneously non-infringement of criminal proceedings and of the principle of investigation secrecy as well as rights of the defendant.
      1. Article 279/a of CPC sets out the conditions and the type of information that the victim is entitled to granted in the context of the criminal proceedings, the types of restriction of the right to information and the procedural rules for giving effect to this right in the event of the application of the personal security measure on the defendant.
      1. Article 279/a of CPC regulates concretely the way that the victim is assuming the right to information, being set out in letters ‘d’ and ‘e’ and ‘ë’ of Article 58 of the CPC. Therefore, Article 279/a is seen closely connected to Article 58 of CPC according to which the victim is any time entitled to seek information on the situation of the proceedings, as well as to get acquainted with the acts and evidence, while preserving the principle of the investigation secrecy, to be informed on the arrest of the suspect and his release, under the circumstances set out in this Code as well as to be informed on the non-initiation of the proceedings, termination of proceedings, initiation and conclusion of the trial.

       

      1. Article 279/a, par 1, of CPC sets out the procedural rules in the assumption of the right to information by the victim. Entitled to seek information are the victim and their legal representative and defence lawyer. The provision has in this way regulated guaranteeing the right to information even for the victim lacking the capacity to act. The victim assumes, in such a case and in compliance with Article 58, par 3 of CPC, their rights through their legal representative or custodian, unless this is not in the interest of the victim. The regulation of the legal representation for the victim lacking the capacity to act is in compliance with the international standards[1], setting out the obligation to provide for the representation of the child by a legal custodian, legal organisation or authority which is going to act on behalf of the best interest of the child.

       

      1. The court shall, upon finding any incompliance between the interests of the victim and those of the legal representative or custodian, appoint a special custodian, in compliance with the provisions of the Family Code. The court shall, regarding the appointment of the special custodian, apply the Articles 274-281 and 308 of the Family Code. This regulation is in compliance with the international standards[2], according to which the judicial authorities shall appoint a special representative where, the person assuming the parental responsibility is banned from representing the child in these proceedings as a consequence of the conflict of interest between them and the victim.

       

      1. The right to seek information is also with the heirs of the victim since, according to Article 58, par 4, of CPC, they are entitled to the rights provided for in the letters “a”, “e”, “ë”, “f”, “g” and “j”, of this Article. In order for the rights foreseen in this provision be practically and effectively assumed, the heirs of the victim are entitled to seek the information according to Article 279 of CPC. Where the heir of the victim is a minor, he shall be represented by the legal custodian and in such a case the provisions of the Family Code shall apply.

       

      1. The victim may assume their right to information through their defence lawyer in compliance with the right guaranteed in letter ç) of Article 58 of CPC (Hyperlink) according to which the victim is entitled to select a defence lawyer and, as appropriate, benefit free legal aid according to the legislation in effect. Regarding specific categories of the victims, Article 279/a of CPC is seen closely connected with the provisions of Law 143/2013 ‘On Legal Aid’, as amended, and the law no 117/2017 ‘On legal aid guaranteed by the state’, the latter entering into effect on 01/06/2018.

       

      1. According to Article 279/a of CPC, the right to information includes even the right of the victims to seek information on the situation of the proceedings, as well as to get to know and obtain copies of the acts and evidence contained in the file of the prosecutor. This provision is in compliance with the Article 58 of the CPC. This provision is in compliance with the Article 58 of CPC, and some ratified Conventions[3]. Provided for in such Convention is the obligation to inform the victims according to the conditions provided for in the domestic law regarding their rights and services available to them and the examination of their complaint, charges, general development of investigation and proceedings, and their role therein, as well as the outcome of their case. While according to the EU legislation[4], the information regarding the situation of proceedings includes all the relevant updated data of the case.

       

      1. According to the standards imposed by ECHR[5], informing the victims consists one of the key elements for meeting the positive obligations that the state has in the overall context of the ECHR and in the context of the observation of the absolute rights, such as the right to life. Two elements are prevailing in this respect, in the instances of the use of force by the state bodies (police) incurring the loss of life. First, informing the relatives that the use of force does not consist a criminal offence is essential. Second, the relatives and interested persons should have the possibility to be informed regarding the investigation, hereunder falling the inspection of documents and, as appropriate, providing free of charge legal aid.

       

      1. The right of the victim to information is not an absolute right, but it is restrictable in the instances provided for by law. The victim is entitled to seek information only for legitimate cause and such causes should be substantiated in their request or emerge out of the acts of the criminal proceedings. By ‘legitimate causes’ are implied those causes or circumstances making, to the effect of ensuring their effective participation in the criminal proceedings, the availability of the information indispensable for the purposes of having the rights of the victim practically and effectively assumed. The proceeding authority shall on case basis determine whether legitimate causes for giving effect to the right of the victim to information exist, however, preserving the balance and non-infringement of interests of criminal proceedings, while taking account of the stage it is in, as well as the non-infringement of the interest provided for in the paragraphs 2 and 3 of Article 279/a of CPC.

       

      1. Further to this consideration, the prosecutor may reject the request, if: a) the interest of preserving the secrecy of the investigation prevails over the interest of the victim; b) the interest of the defendant prevails over the interest of the victim; c) the victim has not yet been interviewed as a witness. The provision in letter ‘c’ is clear and it is connected to the non-impacting the victim, who has not been interviewed as a witness, due to the collected evidence. It may well be the case that the victim be impacted by the statements of the defendant or other witnesses and change their statements or testimony, thus distorting the truth. The two other instances provided for in the provision seek a comprehensive evaluation of all the elements and criteria to the effect of determining the prevailing interest. Under these circumstances, the criteria which should be taken account of by the prosecutor in this evaluation may be: the stage that the criminal proceedings are in, the overall dynamics of investigation or proceedings and the role of the victim therein, complexity of the case and the right being infringed by the criminal offence, etc. As referred to above, ECHR[6] has, in its case-law, highlighted the relevance of the right of the victims and their family members to know the truth regarding the circumstances of the of the events, involving massive infringement of the fundamental rights, such as the right to life. In one of the cases dealt with by ECHR[7], the latter has held that the classification ‘secret’ or ‘top secret’ of essential information for the investigation was not justified, recalling the procedural obligation to guarantee the participation of the relatives of the victim in criminal proceedings. However, it is worth highlighting that in the current case, the information sought by the victims was rejected since it consisted a secret for a period of 20-year period. It was exactly this procrastinated duration that brought the ECHR to the finding of a violation of Article 2 of ECHR. The reasoning a contrario in such a case yields the conclusion that the rejection of the information sought by the victim, being temporary and for a short time and due to the preservation of the investigation secrecy, is satisfactory to ECHR. However, the victim should have full access to the information upon the completion of the investigation, since the reason for preserving the investigation secrecy at such a stage ceases to exist.

       

      1. Article 279/a, par 2, of CPC should be considered closely connected with Article 279 of CPC determining the applicable procedural rules for observing the obligation of preserving the secrecy. As highlighted above, the prosecutor may, in the event of need of further investigation, order the preservation of the secrecy of specific acts to the end of the investigation. This implies the restriction of the right of the victim to information regarding these specific acts. The prosecutor may, upon substantiated decision, allow the publication of specific acts or parts thereof.

       

      1. According to Article 279/a, par 3, of CPC, the victim is entitled to seek information regarding the imposition, duration, replacement or lifting the security measures on the defendant, unless the notification regarding these facts might endanger the life or the health of the defendant. This regulation is in compliance with the ratified Conventions[8], sanctioning the obligation of the states to make sure that the victims be informed, at least in the instances where the victim and family might be in danger, and where the perpetrator is at large or is released temporarily or definitely.

       

      1. EU standards[9] determine that the information should be made available without delay. Making information available implies the obligation that all the victims be entitled to obtain the information surrounding: a) the decision on the conclusion of the criminal proceedings and the rounding of such a decision, and b) time and venue of the conduct of criminal proceedings and the type of charges according to the application. The victims with a certain ‘role’ in the criminal justice system are entitled to obtain information according to their request, regarding: a) final decision of the court (and grounds for rendering such a decision) and b) information on the situation of the criminal proceedings. The information may be communicated in person and by the conveyance of various devices (verbally and in writing, including electronic devices).

       

      [1] Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, Article 31, par 4.

      [2] Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, Article 31, par 4.

      [3] Council of Europe Convention on the prevention and combating violence against women and domestic violence, ratified by the law no 104/2012, Articles 19, 56/b/c; Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, Article 31, par 1a/b, 31, par 2; Council of Europe Convention on measures against trafficking of human beings, ratified by law no 9642/2006, Article 12/d/e.

      [4] Directive 2012/29 of European Parliament and Council, dated 25/10/2012, of the European Parliament, establishing the minimum standards of rights, support and protection of victims of crime, replacing the Framework Decision of the Council 2001/220/JHA (published in the Official Journal of European Union, dated 14/11/2012), Article 3, 4 and 6.

      [5] Hugh Jordan v. Great Britain, Application no 24746/94, dated 4 May 2001, regarding the failure to offer the possibility of effective participation of the relatives of the victim in the investigation proceedings, information of the relatives regarding the investigation;

      [6] Ledi Bianku, Odeta Kumbaro, Case-law of the Strasbourg Court, Publication IV, Tirane 2017;

      [7] Association “21 December 1989” and others against Rumania, Applications no 33810/07 and 18817/08 dated 24 May 2011,

      [8] Council of Europe Convention on the prevention and combating violence against women and domestic violence, ratified by the law no 104/2012, Articles 19, 56/b/c; Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, Article 31, par 1a/b, 31, par 2; Council of Europe Convention on measures against trafficking of human beings, ratified by law no 9642/2006, Article 12/d/e.

      [9] Directive 2012/29 of European Parliament and Council, dated 25/10/2012, of the European Parliament, establishing the minimum standards of rights, support and protection of victims of crime, replacing the Framework Decision of the Council 2001/220/JHA (published in the Official Journal of European Union, dated 14/11/2012), Article 3, 4 and 6.

      1. Reflected in the explanatory memorandum to the draft-law[1] on some addenda and amendments tot eh CPC and in the Justice System Analysis[2], being drafted by the Senior level Experts Group attached to the Parliamentary Ad Hoc Committee on the Justice System Reform were the problems consisting in the failure to acknowledge the role of the victim in criminal proceedings and the right to be informed regarding the main developments in the criminal proceedings. The information to the victim regarding the situation of the criminal proceedings prior to the amendments to the CPC was missing out any legal basis and it was in the discretion of the prosecutor to inform the victim or not based on a request of the latter.

       

      1. The determination of the role of the victim and guaranteeing some procedural rights for the victim in criminal proceedings in the law no 35/2017, Article 58 of CPC, make necessary the concrete regulation of the way of having the right of the victim to information assumed. To the effect of applying the international standards regarding the right of the victim to information, set out by the EU legislation[3], some of the Conventions being ratified by Albania[4] and the case-law of ECHR, Article 279/a was added up by CPC.

       

      [1] Explanatory memorandum to the drat-law “On some addenda and amendments to the Criminal Procedure Code”, https://.parlament.al/ëp-content/uploads/KODI-I-PROCEDURES-PENALE-Resized.pdf, pages 5, 6, 11, 13, accessed for the last time on 29.12.2017.

      [2] See Analysis of the Justice System Analysis, June 2015, in http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf accessed for the last time on 29.12.2017, page 12 and 137, 150.

      [3] Directive 2012/29 of European Parliament and Council, dated 25/10/2012, of the European Parliament, establishing the minimum standards of rights, support and protection of victims of crime, replacing the Framework Decision of the Council 2001/220/JHA (published in the Official Journal of European Union, dated 14/11/2012),

      Recommendation (2000) 19 on the role of public prosecution in the criminal justice system and Explanatory Memorandum approved on 06 October 2000 by the Committee of Ministers of the Council of Europe, par 34, regarding the authorisation of parties to undertake the private accusation.

      Recommendation (2006) 8 of the Council of Ministers of the Member States on the assistance to the crime victims of 14 June 2006;

      Recommendation (1985) 11 of the Council of Ministers of the Member States on the position of the victim in the framework of criminal law and procedure of 28 June 1985;

      Recommendation (1987) 21 of the Council of Ministers of the Member States on assistance to victims and the prevention of victimization of 17 September 1987;

      Recommendation (1997) 13 of the Council of Ministers of the Member States concerning intimidation of witnesses and the rights of the defence of 10 September 1997;

      Recommendation (1999) 19 of the Council of Ministers of the Member States on mediation in criminal matters of 15 September 1999;

      Recommendation (2003) 13 of the Council of Ministers of the Member States on the provision of information through the media in relation to criminal proceedings of 10 July 2003, and European Convention on the compensation of the victims of violent criminal offences, of the Council of Europe, dated 24 November 1983.

      [4] Council of Europe Convention on the prevention and combating violence against women and domestic violence, ratified by the law no 104/2012, Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, Council of Europe Convention on measures against trafficking of human beings, ratified by law no 9642/2006,

    • Council of Europe Convention on the prevention and combating violence against women and domestic violence, ratified by the law no 104/2012, guaranteeing the protection of the rights and interest of the victims during the entire stages of the judicial proceedings, specifically the right to information and to be heard; 

      Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009, guaranteeing that the minor victims shall, in the event of sexual exploitation and abuse be informed regarding the charges, overall dynamics of investigation or proceedings and their role therein, as well as the outcome of their case; 

      Council of Europe Convention on measures against trafficking of human beings, ratified by law no 9642/2006, guaranteeing the protection of the rights and interests of the victims of trafficking during the entire stages of the judicial proceedings, specifically the right to information and to be heard;

      Directive 2012/29 of European Parliament and Council, dated 25/10/2012, of the European Parliament, establishing the minimum standards of rights, support and protection of victims of crime, replacing the Framework Decision of the Council 2001/220/JHA (published in the Official Journal of European Union, dated 14/11/2012), aims at making sure that the victims of the crime be provided with the appropriate information, support and protection, as well as be able to participate in the criminal proceedings.

  • Reports, Opinions, Recommendations and Statements 

    Recommendation (2006) 8 of the Council of Ministers of the Member States on the assistance to the crime victims of 14 June 2006; 

    Recommendation (1985) 11 of the Council of Ministers of the Member States on the position of the victim in the framework of criminal law and procedure of 28 June 1985; 

    Recommendation (1987) 21 of the Council of Ministers of the Member States on assistance to victims and the prevention of victimization of 17 September 1987; 

    Recommendation (1997) 13 of the Council of Ministers of the Member States concerning intimidation of witnesses and the rights of the defence of 10 September 1997; 

    Recommendation (1999) 19 of the Council of Ministers of the Member States on mediation in criminal matters of 15 September 1999; 

    Recommendation (2003) 13 of the Council of Ministers of the Member States on the provision of information through the media in relation to criminal proceedings of 10 July 2003; 

    Recommendation (2000) 19 on the role of public prosecution in the criminal justice system and Explanatory Memorandum approved on 06 October 2000 by the Committee of Ministers of the Council of Europe, par 34, regarding the authorisation of parties to undertake the private accusation.

     

    Decisions of the European Court of Human Rights 

    Hugh Jordan v. Great Britain, Application no 24746/94, dated 4 May 2001, regarding the failure to offer the possibility of effective participation of the relatives of the victim in the investigation proceedings, information of the relatives regarding the investigation; 

    Association “21 December 1989” and others against Rumania, Applications no 33810/07 and 18817/08 dated 24 May 2011, regarding the failure to offer the possibility of effective participation of the relatives of the victim in the investigation proceedings, information of the relatives regarding the investigation.

  • Analysis of Justice system in Albania, June 2015, page 12, 137, 150, drafted by the drafted by the Senior level Experts Group attached to the Parliamentary Ad Hoc Committee on the Justice System, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, accessed for the last time on 29.12.2017; 

    Explanatory memorandum to the drat-law “On some addenda and amendments to the Criminal Procedure Code”, https://www.parlament.al/wp-content/uploads/KODI-I-PROCEDURES-PENALE-Resized.pdf, accessed for the last time on 29.12.2017.

  • Article 58 of the Law no 35/2017 On some addenda and amendments to the Law no 7905, dated 21.03.1995 “Code of Criminal Procedure of the Republic of Albania”, as amended by Law no 35/2017; 

    Articles 274-281 and 308 of the Family Code; 

    Law no 143/2013 “On legal aid’, as amended; 

    Law no 117/2017 “On the legal aid guaranteed by the state”, due to enter into effect on 01.06.2018.

     

    Constitution: 

    Article 23 of the Constitution, amended by law no 76/2016;

     

    Law: 

    Council of Europe Convention on the prevention and combating violence against women and domestic violence, ratified by the law no 104/2012,

    Council of Europe Convention on protection of children against sexual exploitation and abuse, ratified by the law no 10071/2009,

    Council of Europe Convention on measures against trafficking of human beings, ratified by law no 9642/2006,

    Law no 7905, dated 21.03.1995 “Code of Criminal Procedure of the Republic of Albania”, as amended by Law no 35/2017.

  • No Comment
  • No Comment

  • Ledi Bianku, Case-law of the Strasbourg Court, Tirane, 2007; 

    Ledi Bianku, Odeta Kumbaro, Case-law of the Strasbourg Court, Publication IV, Tirane 2017; 

    Salvatore Zappalà, The Rights of Victims v. the Rights of the Accused, Journal of International Criminal Justice, Vol. 8, 1 Mars 2010.

  • Laws 

    Article 279 of CPC prior to the Law no 35/2017 amendments.

Ornela Naqellari
Idlir Peçi, Koraljka Bumči