Table of Content

• Comments
  • Purpose
    1. The purpose of this provision is to guarantee that any arrested or detained person is clearly and promptly informed about his rights through the Letter of Rights and the approximation of domestic legislation with European legislation and court practice of the ECHR, regarding the notification of the defendant or the arrested or detained person regarding his rights in the criminal process through the Letter of Rights.
  • Scope
    2. The scope of this Article is: 

    1. to determine the rights of the arrested or detained person, distinguishing them from the rights of the defendant;
    2. to determine the obligatory time of the proceeding authority to notify these rights to the arrested or detained person;
    3. the procedure followed by the proceeding body and the procedural act communicating the above rights.
  • Comments
    3. As noted from its content, in essence, this provision is referring to the first paragraph of Article 34/a of the CrPC[1]. From this paragraph, there have been selected as rights enjoyed by the arrested or the detained person, in addition to the person under investigation/defendant. In order to specifically make the difference between the rights of the person under investigation/ defendant and the rights of the arrested or detained person, the legislator has listed the rights enjoyed by these procedural subjects in two separate provisions, equalizing the position of the person under investigation with that of the defendant on one side and that of the person arrested with that of the detained person on the other side.

     

    4. A defendant is a person to whom the criminal offense is attributed to, through the act of notification of the charge referred in the definition given by paragraph one of Article 34 of the CrPC. A person obtains such quality, as a rule, at the end of the investigations, but he may obtain it at any time of the prosecutor’s assertion that he has sufficient evidence to attribute to the person a specific charge related to the criminal offense being investigated.

     

    5. Meanwhile, the CrPC does not provide any definition of the “person under investigation” as a procedural subject. In fact, in the order of procedural subjects, the CrPC does not list any subject other than the defendant when stating persons suspected of having committed the criminal offense. However, in the provisions of the CrPC, the lawmaker has anticipated that the denomination of the person suspected of committing a criminal offense evolves from the time of registration of the criminal proceeding until the time of submission of the request for its delivery to trial.

     

    6. Thus, initially the person suspected of committing the criminal offense is presented in the code by the term “the person to whom the criminal offense is attributed”, which according to Article 287 of the CrPC is the person whose name is registered in the criminal records by the prosecutor, at the time resulting that it is attributed to him the criminal offense, registered by the person who reports the criminal offense (the denunciator). 

     

    7. Subsequently, the figure of the suspected person evolves to that of “the person against whom the investigations take place”, a figure mentioned in Articles 293/1, 295/1, 296/1 and 2, 302, 303/2–“b” and “d”, 308, etc., of the CrPC. Despite the terminology used, this figure results to be the same as that of the “person under investigation”, who as such is mentioned only in the first paragraph of Article 34/a of the CrPC and in paragraph one of Article 298 of the CrPC. This denomination is only held by persons suspected as potential offenders referring to the data collected during the investigation, which are not such as to support the indictment and the call of the person with the quality of the “defendant”. The Joint Chambers of the High Court have stated that the person against whom investigations take place is a provisional procedural figure that lies between what the CrPC calls a “person to whom the offense is attributed” and the “defendant”, who is a more advanced procedural and relatively more stable figure, which is maintained unchanged, in any state and level of criminal proceedings, until the decision of cessation, innocence or guilt has become final [2]. Despite such distinction between these figures of the author suspected of committing the criminal offense, in paragraph 3 of Article 34/a of the CrPC the lawmaker has recognized the rights set out in paragraph 1 of this provision for the defendant even to the person under investigation and to the person to whom the criminal offense is attributed. The only exception established by the lawmaker in this case is when the law explicitly provides that a certain right belongs to the defendant only as the most advanced procedural figure of the author suspected of committing the criminal offense.

     

    8. Unlike the difference between the defendant and the person under investigation, the arrested person and the detained person differ from one another only in relation to the act on whose basis the deprivation of their liberty has been conducted. Thus, a person may only be arrested on two occasions: i) on the basis of a court decision on the determination of the security measure “arrest in prison” taken under Article 238 of the CrPC; ii) if caught in flagrance under Article 251 of the CrPC; Meanwhile, a person may be detained only on the basis of a prosecutor’s order to detain him or in urgent cases by the judicial police under the conditions set forth in Article 253 of the CrPC. Both in the arrest and in the detention situations, the person is deprived of liberty, and in both situations, he is in the same conditions. This is also the reason that the lawmaker has equalized the case of the arrested person with that of the detained person, recognizing the same rights to them.

     

    9. In addition to the rights stipulated in letters a) to e) of paragraph 1 of Article 34/a of the CrPC, the lawmaker has also designated as exclusive rights of the arrested person and the detained person the following rights: a) to have a confidential meeting with his lawyer, before being questioned for the first time. This provision is a further detailing of the right recognized in point letter dh) in paragraph one of Article 34/a, which is a general right, applied throughout the process. The lawmaker wanted to isolate the moment of the first questioning of the arrested or detained person as an important moment, which requires a special guarantee of the right of defense guaranteed by Article 6 § 3 (c) of the ECHR.

     

    10. Similarly, one of the fundamental amendments to Law No.35 / 2017 is the amendment to Article 256 of the CrPC., which in its first paragraph has determined that, in cases when the person is arrested or detained, he may be questioned only by the prosecutor and the latter may not delegate this obligation to the judicial police officer due to the prohibition provided in the first paragraph of Article 296 of the CrPC. This is an important amendment that guarantees the rights of the arrested or detained person on one side and guarantees the quality of the investigation on the other side. Since, according to the first paragraph of Article 256 of the CrPC the questioning of the arrested or detained person may only be carried out in the presence of the defence counsel in order to be valid and its outcome may be used in the trial, letter a) of paragraph 1 of Article 34 of the CrPC has also provided for the right of the person deprived of his liberty before being questioned for the first time, to be able to meet solely with the defence counsel elected or, in his absence, with a defense counsel assigned ex officio. The European Court of Human Rights in the case of Öcalan v. Turkey has considered as a violation of Article 6 § 3 (c) of the ECHR the fact that the defendant was not assisted by the defence counsel during the interrogation in detention[3].

     

    11. The right of an arrested or detained person to communicate with his defense counsel away from the presence of a third person was considered by the ECHR also in the case of Rybacki versus Poland as a right which is not explicitly defined in Article 6 § 3 (c) of the ECHR, but which is included in it, since, if the defense counsel does not appear to have had the opportunity to discuss with his client confidentially and without surveillance, his assistance would no longer be effective. It is clear that ECHR aims to guarantee rights in a practical and effective manner. According to the ECHR, the privilege of a confidential meeting between the arrested person and his defense counsel encourages open and honest communication between clients and defense counsels as a guarantee to the person and the right of defense [4].

     

    12. It is worth mentioning herein the fact that referring to letter e) in paragraph one of Article 49 of the CrPC, in the cases of questioning the arrested or detained person, the appointment of the defense counsel to the person who has not chosen one or has remained without one - is obligatory. By enabling a meeting with the defense counsel before his first questioning, the lawmaker wanted to guarantee the person, who is deprived of liberty, the right to determine his defense strategy, and consultation with the defense lawyer regarding his rights, among which the most essential is the right to silence and not to respond. Failure to respect the right of an arrested or detained person to meet solely with the defense counsel before being questioned for the first time results in the non-use of his declarations. Such consequence is provided in the third paragraph of Article 256 of the CrPC.

     

    13. Letter b) provides for the rights to access the acts, necessary evidence and the grounds for his arrest or detention. This provision includes two rights of the arrested or detained person: i) the right to know the reasons for his arrest or detention; ii) the right to be informed of the acts and evidence necessary to guarantee his protection.

     

    14. Regardless of the ordering of these rights within the above paragraph, referring to the chronology of criminal proceedings, the logic leads you to the fact that the first to be timely accomplished, of these rights is the right to know the grounds for arrest or detention. When the arrest is made on the basis of a decision to impose the security measure “arrest in prison”, the reasons for the arrest or detention are determined in the court decision, which is immediately handed over to the person at the moment of his arrest by the judicial police officer, as determined of the first paragraph of Article 246 of the CrPC. The obligation of the judicial police in such a case is to inform the person that his arrest is made on the basis of a court decision, as he is suspected of committing a specific criminal offense and to submit a copy thereof together with the Charter of Rights. In the same reasoning, even when the person is detained on the basis of a prosecutor’s order referred to Article 253 of the CrPC, the reasons for his detention are found in the prosecutor’s order to detain him. Whereas, when the person is arrested in the terms of flagrance referred to the provisions of Article 251 of the CrPC or detained upon the initiative by the judicial police under the second paragraph of Article 253 of the CrPC, the reasons for the arrest or detention must be made known to the person by the judicial police in the shortest possible time at the moment of his arrest or detention. Therefore, although the second paragraph of Article 34/b does not provide a clear provision that the detained or arrested person has to be notified immidiatly also about the rights contained in first paragraph, it has to be stated that this comes out from the Article itself. Thus, the detaned person has to have access to all the acts necessary for challenging his/her arrest! If we make this given right in coleration with the time when the person has to be brought in front of the judge after his/her arrest, as foreseen in the Article 258 of CrPC, this would lead us to conclusion that this has to be made at the earliest moment of arrest or detention together with the written letter of rights.

     

    15. As mentioned above, when the prosecutor does not order the immediate release of the arrested or detained person, referring to the provisions of the first paragraph of Article 258 of the CrPC, prosecutor has the obligation to ask the court within 48 hours to validate the arrest or detention. Further more the court has the obligation to review this request as soon as possible . If this is the case, at the same hearing the prosecutor also requires the determination of the security measure against the person. Likewise, in the case of the execution of a court order for the determination of the security measure “arrest in prison”, according to the first paragraph of Article 248 of the CrPC the court has the obligation that, no later than three days from the enforcement of the measure, to interrogate the arrested person. In order to be defended towards the prosecutor’s request in each of these situations, the person deprived of his liberty needs to access the acts related to his arrest or detention (as may be the court’s decision to impose the security measure “arrest in prison”, order of the prosecutor for his detention, relevant minutes, etc.) and to access the necessary evidence for him to realize his defense.

     

    16. The lawmaker has not determined what is meant by the phrase “necessary evidence”, but what results to be clear from the use of this terminology is the fact that the lawmaker has not provided an absolute right of the arrested or detained person in all the investigation materials. This conclusion results not only from the “necessary” suffix used in this provision, but also from the difference in the terminology used by this provision from that of letter ë) of the first paragraph of Article 34/a of the Criminal Procedure Code. . Such difference has been made in order to ensure that the access to acts and evidence of the case by the person who has been deprived of liberty does not affect the investigation. Meanwhile, in the case of the person taken with the defendant’s quality, a figure which, as mentioned above, appears at a more advanced stage of the criminal proceeding, the investigation data that may need confidentiality are, if not non-existent, very rare.

     

    17. Since the lawmaker has not made a definition, in order to determine what will be considered as “necessary evidence”, the definition of Article 7 of Directive 2012/13/EU dated 22 May 2012 “On the right to information in criminal proceedings” helps us. According to this respective Article, as acts and evidence to be made available to the person, who is deprived of liberty, are considered those materials: i) which are essential to effectively challenge the lawfulness of arrest or detention[5] (ii) in favor or disadvantage of the arrested or detained person, such as to enable the person or his defense counsel to protect the legality of the proceedings and the preparation of the defense[6]. Hence, at this stage of the process, the person has the right to access only those acts and evidence that are necessary for him/her to guarantee his/hersright to effectively object the decision or order on the basis of which he was arrested or detained and, as already mentioned not any act or evidence in the investigation file. This is different from the right given to the defendant, once the investigation is terminated, as foreseen in the Article 327 of the CrPC. Once the investigation is terminated the prosecutor has the obligation to make available to the defendant and his defense counsel all the materials collected during the preliminary investigation phase. From the acts or evidence that the arrested or detained person is entitled to access, there are excluded those, whose access may lead to serious threats to the life or fundamental freedoms of another person, and those acts or evidence, whose storage is necessary to protect an important public interest, such as the safeguard of investigative secret or national security [7](paragraph 4 of Article 7 of the Directive). These criteria should serve as guidance for the prosecutor in the determination of acts and evidence that may not be made available to the arrested or detained person and/or his defense counsel. As a rule, the prosecutor must justify such a decision for refusing the request of the arrested or detained person to access acts or evidence of the investigative file.

     

    18. Letter c) reflects the provision of Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings dated: 30 November 2009 and aims to ensure that the person deprived of liberty is able to immediately notify a trusted person, whether he is a member of the family, his employee or a close relative, about his arrest or detention.

     

    19. Although the law does not provide, in certain cases this right may be temporarily restricted for security reasons or to avoid the contact of the arrested or detained person with persons who may have collaborators or to avoid that the person deprived of liberty transmits, through the notification, data that may damage the investigation. In such situations, the judicial police officer must inform the arrested or detained person the restriction of this right. The manner of notification of a family member or a person close to him is not determined by law, but the wording of the provision implies that the law does not guarantee that the notification is made directly by the arrested or detained person (for example, through the phone), but guarantees the right of the person to request that his family member or relative be immediately informed of his arrest, which means that this notification may be made by the proceeding authority.

     

    20. In addition to the foregoing, the law provides for the foreign citizen to have the opportunity to request the notification of the consular representation office or diplomatic representation (embassy) of his country about his arrest or detention, in order for these institutions to be able to attend or to be interested in the procedures followed for him. Whereas, for persons without citizenship who may be arrested or detained in the territory of the Republic of Albania who, because of the lack of citizenship, may not notify any consular or diplomatic authority, the law provides the possibility of requesting the notification of an international organization that protects the rights of persons without citizenship or carries out activities in the field of human rights. The same provision also applies to refugees. A foreigner or a person without citizenship shall be considered a “refugee” for the purposes of this provision, who, because of fear based on prosecution, for reasons of race, belief, nationality, membership in a particular social group or political conviction is located outside the country of his citizenship or usual residence and has no opportunity or desire to seek the protection of that country or return to that country as a result of these circumstances, in accordance with the criteria of Article 1 (A) of the Geneva Convention, the definition given in letter d) of Article 3 of Law No.121/2014 “On asylum in the Republic of Albania”, which is a law approximated with European and international legislation[8]

     

    21. Letter ç) provides for that arrested or detained person is promptly provided with the necessary medical care. If the arrested or detained person requires medical care due to his health condition, he should request this to the police officers and this medical service should be immediately guaranteed. Definitely, if judicial police officers observe themselves such a need, they should ensure that the person receives the necessary medical assistance immediately, under the necessary security measures. Such provision guarantees the right set out in letter (c) paragraph 4 of Article 4 of the Directive.

     

    22. Paragraph 2 of Article 34/b of the Criminal Procedure Code stipulates the obligation of the proceeding authority to immediately inform the arrested or detained person about the rights provided in letters a) to e) of paragraph 1 of Article 34/a of the Criminal Procedure Code. The way a judicial police officer notifies the person who is deprived of his rights is through the submission to the arrested or detained person of the Letter  of Rights upon signature. He is entitled not only to be introduced with such a Letter of rights, but he may also keep it. This provision is set in order to guarantee the real recognition of the  arrested or detained person with his rights and not merely to formally fulfill this obligation. The law does not determine a format of the Letter  of Rights, but provides only the rights that should be listed therein. Meanwhile, the directive in its Annex 1 provides such a model. Based on this model, the General Prosecution Office has developed and distributed a model of the Letter  of Rights[9].

     

    23. It is worth repeating that in the content of the Letter of Rights that the proceeding authority must submit to the arrested or detained person, the rights listed in paragraph 1 of Article 34/b of the CrPC should also be included. In fact, the model of the Letter of Rights drafted by the General Prosecution Office, also includes the rights listed in letters a) to e) of paragraph 1 of Article 34/a of the Criminal Procedure Code, as well as those listed in paragraph 1 of Article 34/b of this Code. It also includes the fact that within 48 hours of arrest or detention, the prosecutor will request the validation of arrest or detention in court, thus fulfilling the requirement of letter (d) of paragraph 2 of Article 4 of the Directive.  

     

    24. In addition, notwithstanding the term “immediately” used by the provision, the submission of the Letter of Rights for an arrested person or a detained person may also be made at a later moment, it is sufficient that such moment is as soon as possible and in any case before he is questioned for the first time. This interpretation is in line with Article 253 of the Criminal Procedure Code and in the spirit of Article 34/b of the Criminal Procedure Code.

     

    [1] See further the comment of Article 34/a of the Criminal Procedure Code.

    [2] Unifying Decision no.2, dated 27.09.2002, Vladimir Ozmaj.

    [3] See the Decision of the ECHR Öcalan versus Turqisë, application no. ­­­­46221/99, decision dated 12.05.2005, last visited on 06.03.2018, para.148.

    [4] See the Decision of the ECHR Rybacki versus Poland, application no. 5479/99, decision dated 09.11.2004, , last visited on 06.03.2018, para.56.

    [5] paragraph 1 of Article 7 of the Directive 2012/13/EU

    [6] paragraph 2 of Article 7 of the Directive 2012/13/EU

    [7] paragraph 4, Article 7 of the Directive 2012/13/EU

    [8] This right has also been provided in the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings dated: 30 November 2009

    [9] A copy of this model is found at the end of the comment.

  • Historic context
    25. The adoption of this provision was dictated by the need to approximate the domestic law with the standards established by the ECHR practice with regard to the freedom of the person, the due legal process and the right of defense guaranteed by Articles 5 and 6 of the ECHR, and the approximation of internal legislation with the acquis communaitaire, including the Letter of Rights according to the Directive.
  • International acts
    26. Article 34/b of the Criminal Procedure Code is in line with the Directive 2012/13/EU dated 22 May 2012 “On the right to information in criminal proceedings”, meeting its requirements along with Article 34/a of the Criminal Procedure Code.

     

    27. Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings dated: 30 November 2009.
• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  28. Article 34/b of the Criminal Procedure Code reflects the practice of the ECHR in relation to the time when a defense counsel is guaranteed for the arrested or detained person, his right to communicate confidentially with with the defense counsel elected or assiogned ex officio before the arrested or detained person is first questioned, as well as the right to have access to the materials necessary to realize his defense and to object the decision that has imposed his arrest or detention. These rights have been elaborated by the ECHR in the following cases:

   

  29. Öcalan versus Turkey, application no. ­­­­46221/99, decision dated 12.05.2005, https://hudoc.echr.coe.int/eng#{"itemid":["001-5562"]}, last visited on 06.03.2018, para.148.

   

  30. Rybacki versus Poland, application no. 5479/99, decision dated 09.11.2004, https://hudoc.echr.coe.int/eng#{"itemid":["001-83164"]}, last visited on 06.03.2018, para.56.
• Legislative material
  No Comment
• Related articles
  No Comment
• Sublegal acts

  Constitution: Article 42, paragraphs 2 and 141.

  European Convention on the Protection of Human Rights and Fundamental Freedoms:

  Articles 5 and 6;

  Articles 34/a, 49, 251, 253, 256, 296, 298 of the Criminal Procedure Code.

• Decisions
  No Comment
• Literature

  Unifying Decision of the United Colleges of the High Court no. 2, dated 27.09.2002, Vladimir Ozmaj, http://www.gjykataelarte.gov.al/web/Vendime_Unifikuese_39_1.php.

• Archive
  No Comment