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

Article 450: Revision cases

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1The revision may be requested:

aif the facts stated in the merits of the decision are not compatible with those of another final judgment;

bif the decision is based on a civil or administrative court decision, which has been revoked subsequently;

cif, after the decision, new evidence appeared or has been discovered which solely or along with the ones already evaluated prove that the decision is wrong;

çif it is proven that the decision was issued as a result of the falsification of the acts of the trial or of another fact provided by law as a criminal offence.

dif the ground for the revision of the final decision results from a European Court of Human Rights judgment making the re-adjudication of the case indispensable. The request shall be filed within 6 months from the notification of that decision;

dhif the extradition of a person tried in absentia is granted on the explicit condition that the case be re-tried. The request for re-trial may be submitted within 30 days from the date of extradition of the person. The request submitted within that time limit may not be refused.

eif the person is tried in absentia pursuant to article 352 of this Code and requests the case to be re-tried. The request shall be filed within thirty days from the date he is informed. The request submitted within that time limit may not be refused.

Table of Content

      1. Generally, the institute of revision aims at rectifying the eventual judicial mistakes connected to the final decisions. Specifically, the amendments made to Article 450 aim at approximating the Albanian legislation in the field of revision of criminal decisions to the international standards connected to the adjudication in absentia, extradition and the enforcement of the ECHR decisions.
      1. Article 450 sets out exhaustively the instances of the revision of the criminal decisions.
      1. The cause of revision referred to in letter ‘a’ of Article 450 pertains to the consistency that the judicial decisions should have. It would seem strange but also repugnant to the principle of the legal security, if the same set of facts obtained a different construction in two different decisions. 

       

      1. Referring to letter ‘b’, the revocation of a civil or administrative court decision, whereon a criminal decision has built, consists a cause for the revision of the criminal decision. This provision pertains to the provisions of Article 71 of the Criminal Procedure Code, the latter determining that the final civil decision is mandatory for the court trying the criminal case regarding the fact whether the criminal offence has occurred or not. At the same time, the administrative or civil decision is binding also in the instances provided for in par 2 of Article 71 of the CPC. Thus, it is easily discernible why the right to seek the revision of the criminal decision emerges, as long as the administrative or the civil decision whereon the criminal decision builds does not exist any more. 

       

      1. Letter “c” provides for the possibility of revision if, after the decision, new evidence appeared or has been discovered which solely or along with the ones already evaluated prove that the decision is wrong. This provision requires, in its essence, that the evidence having been discovered recently, be of such an importance that, were the court aware thereof, it would have rendered a different decision to the one it pronounced. The terms ‘new evidence’ have emerged and detected have been interpreted and unified by the judicial case law of HC.[1]

       

      1. New evidence initially means that we have to do with evidence in the sense of the CPC. The person seeking revision should submit any exhibit of material nature (for instance letters, documents), which ‘(...) in terms of procedural form are evidence, in the sense ascribed to the evidence by the lawmaker in the provision of Article 149 of CPC”.[2] In this sense, they have to contain facts connected to the criminal offence and circumstances of its commission, as well as to have been taken in compliance with the rules set out by the criminal procedural law.[3] Second, the evidence have to be new, in the sense that they have emerged or discovered after the decision being rendered. It should be about ‘(...) evidence, which, although they existed objectively at the moment when the case was examined, they were not submitted by the parties up to the moment that the decision became final, since the parties, until then, were not aware of their existence.”[4] 

       

      1. The evidence is considered to have emerged following the rendering of the decision as long as they have been identified in the course of separate criminal proceedings (minutes of the respective file), which has been conducted after the decision sought to be revised has been rendered, however, bearing no connection to the issues wherefore that decision has been rendered. The evidence have been detected while the parties being interested in the revision carry out verification activities following the rendering of the decision.[5] 

       

      1. The letter “ç” makes possible the revision if it is proven that the decision was issued as a result of the falsification of the acts of the trial or of another fact provided by law as a criminal offence. Forged acts of the proceedings maybe the minutes of the judicial hearings, checks, interceptions etc. While a fact being provided for by the law as a criminal offence may be the false testimony, assumption of violence against the defendant witnesses during the preliminary investigation, passive bribery etc. The forged acts or the facts being provided by the law as a criminal offence shall normally be established by way of a final judicial decision.[6] According to Article 452, par 2, of CPC, the attached to the request being submitted for revision based on letter ‘ç’ of Article 450, shall be the certified copies of the acts referred to therein. This means that the decision for forging the acts or the fact provided for as a criminal offence should be attached to the request for revision. However, encountering the circumstances of Article 290, letters ‘a’, ‘b’, ‘d’, ‘dh’ of CPC, the establishment of the prerequisites for revision shall be done during the examination of the request for revision.[7]

       

      1. By the Law no 35/2017, there were added the letters “d”, “dh”, “e” in Article 450 of CPC. As referred to above, this amendment aims at approximating the Albanian legislation to the international one. Letter ‘d’ facilitates the revision of the criminal decision as long as this is indispensable as a consequence of the implementation of the ECHR judgement. The request for revision shall be filed within 6 months from the notification of that decision. According to Article 452, par 2 of CPC, attached to the request shall also be the ECHR decision. Letter ‘dh’ provides for the revision when the extradition of the person having been adjudicated in absentia was done explicitly conditional on the re-trial of the case. The request shall be submitted within 30 days as of the moment of extradition and it cannot be rejected. Again, according to Article 452, par 2, of CPC, the request shall be recorded with the explicit condition of the retrial of the case. Letter ‘e’ facilitates the revision upon the decision being rendered in absentia, according to Article 352 of CPC. Even this request may be submitted within 30 days of the decision becoming aware of and it cannot be rejected.[8]

       

      [1] Decision no 6, dated 11.10.2002, Edmir Gjokicaj (JCHC).

      [2] Ibid., page 5 - 6. 

      [3] Ibid.

      [4] Ibid.

      [5] Ibid.

      [6] See Halim Islami, Artan Hoxha, Ilir Panda, Criminal Procedure, Morava Publications 2006, page 586.

      [7] Ibid.

      [8] Regarding the international standards in connection with these amendments and the compliance of the Albanian legislation therewith, see the rubrics ‘International Legislation’, ‘Reports, opinions, recommendations and statements’ and ‘Decisions of the European Court of Human Rights’.

      1. The amendments to Article 450 of CPC should be seen in the overall context of the amendments that the institute of revision went through by way of the Law no 35/2017. These amendments ensued as a consequence of reflecting the developments into the judicial case law and changes to the case law of the High Court. [1] Moreover, there is emerging the need of increasing the cases of revision as a consequence of the reform in the field of adjudication in absentia and compliance of the Albanian legislation with Article 46 of ECHR.

       

      [1] See Report on the Draft Amendments to the Criminal Procedure Code, page 37, https://www.parlament.al/wp-content/uploads/2017/01/RELACION-SHTESA-E-NDRYSHIME-7905-KODI-I-PROCEDURES-PENALE-Resized.pdf, accessed on 18.08.2017.

      1. Framework Decision of European Council on European Arrest Warrant in its Article 5, par 1, provides for guarantees in connection with the handover of a person based on an European Arrest Warrant, being issued to the effect of having a decision or a security measure (imprisonment) enforced, having been taken in absentia and the person in question is not aware of the proceedings against him. Under such circumstances, the issuing State (the state seeking the handover) should provide sufficient guarantees to the enforcing state that the wanted person shall have the right to a total revision of the case in his presence granted. In this aspect, all the Member States of the European Union uphold the condition of having the decision revised as long as the person being extradited (handed over) has been convicted in absentia. Such conditions are more frequently seen even in the extradition cases carried out by the Member States of the Council of Europe, as a consequence of the case law of ECHR.[1] In this context, the Albanian legislation complies with the standards of the international legislation.

       

      1. Article 46 ECHR requires the High Signatory Parties to observe the final decision of ECHR where ever they are parties. As it is to be seen hereunder,[2] one of the most effective modus of operandi for the observation of ECHR is the revision of the decision having sparked the complaint to ECHR. This is the reason why the Albanian lawmaker has very appropriately added up the ECHR judgements as a cause for revision. The majority of the Council of Europe Member States have in their own legislation provided for the possibility of having the (criminal) decisions revised as a consequence of the enforcement of the judgements of ECHR.[3]

       

      [1] See the rubric ‘Decisions of the European Court of Human Rights’ at the commentary to Article 352 of CPC. (hyper link).

      [2] See paragraph 13 and 14.

      [3] DH-PR(2005)2.

  • Reports, opinions, recommendations and statements 

    1. The Committee of Ministers of Council of Europe is responsible for following up the enforcement of the ECHR judgements.[1] The Committee is very active in this field. Perhaps one of the best examples is Recommendation (2000)2 highlighting, inter alia, that the practice of supervising the enforcement of ECHR judgements has indicated that, under specific circumstances, the re-examination of the case or re-initiating the judicial proceedings was the most efficient, if not the sole one, for reaching the restitute in integrum.

     

    Decisions of the European Court of Human Rights 

    1. ECHR has highlighted that it has generally no jurisdiction to order the re-instituting or revising the local judicial decisions (Association against the plants of animals Switzerland (No. 2)).[2] The ECHR judgements regarding Article 46 of ECHR have a declaratory character and consequently it is up to the State to choose the most appropriate way of enforcing the Court judgement. (Scozzari and Giunta; Assanidze).[3] However the ECHR case law has indicated that in criminal proceedings whereof infringements of the due process have been found out, the Court shall recommend the re-adjudication of the case as long a this is sought by the person having filed a complaint with ECHR (Öcalan; Krasniki; Gençel).[4] In such cases, the ECHR case law is increasingly considering the re-trial of the case as the most effective instrument for rectifying the consequences of a decision having infringed the guarantees of the due process. Letter ‘dh’ of Article 450 of CPC is in full compliance with the above standards, since the revision is possible as long as a ECHR makes retrial indispensable.

     

    1. ECHR has currently a consolidated judicial case law in connection with the trial in absentia, which per se is not non-compliant with Article 6 of ECHR. However, justice is denied to the person tried in absentia, as long as he/she can not benefit the re-initiation of the judicial examination, thus the examination of the case and charge against him, as long as it is not established that he has renounced his right to be present or that is evading justice (Sejdovic; Colozza; Somogyi; Medenica).[5] This right is automatic and it should not depend on any discretion of the court. From this perspective, letter ‘e’ of Article 450 of CPC is in full compliance with the ECHR standards, since the request for revision in the instances of the adjudication in absentia, under Article 352 of CPC can not be rejected. The persons being adjudicated in absentia under Article 352 are the defendant not being found, evading justice or that cannot be extradited from abroad. In this context, the Albanian legislation goes beyond the guarantees of ECHR and ECHR since ECHR and ECHR do not guarantee the right for re-initiating the judicial examination to the person having renounced his right to be present or to the person evading justice.[6]

     

    [1] See Rules of the Committee of Ministers for supervising the enforcement of the decisions and terms of amicable resolution. See also Article 46 ECHR.

    [2] Association against the plants of animals in Switzerland (VGT) v. Switzerland (No 2) 30.06.2009, No of Application 32772/02, par. 89.

    [3] Assanidze v. Georgia, 08.04.2004, No of Application 71503/01, par. 202; Scozzari dhe Giunta v. Italy, 13.07.2000, No of Application 39221 / 98 and 41963/98, par. 249.

    [4] Öcalan V. Turkey, 12.05.2005, No of Application 46221/99, par. 210; Krasniki v. Czech Republic, 28.02.2006, No of Application 51277/99, par. 93; Gençelv. Turkey, 23.10.2003, No of Application 53431/99, par. 27.

    [5] Sejdovic v. Italy, 24.03.2005, No of Application 9808/02, par. 86; Colozza v. Italy, 12.02.1985, No of Application 9024/80, par. 29; Somogyi v. Italy, 18.05.2014, No of Application 67972/01, par. 66; Medenica v. Switzerland, 14.06.2001, No of Application 20491/92, par. 55.

    [6] See the rubric ‘Decisions of the European Court of Human Rights’ at the commentary to Article 352 of CPC.

  • Report on the Draft Amendments to the Criminal Procedure Code, page 37,https://www.parlament.al/ëp-content/uploads/2017/01/RELACION-SHTESA-E-NDRYSHIME-7905-KODI-I-PROCEDURES-PENALE-Resized.pdf, accessed on 18.08.2017.

  • Criminal Procedure Code: Articles 71, 290, 352, 452.

  • No Comment

  • Decisions of the High Court of the Republic of Albania 

    Decision no 6, dated 11.10.2002, Edmir Gjokicaj (JCHC)

     

    Decisions of the European Court of Human Rights 

    Assanidze v. Georgia, 08.04.2004, No of Application 71503/01;

    Colozza v. Italy, 12.02.1985, No of Application 9024/80

    Gençel v. Turkey, 23.10.2003, No of Application 53431/99;

    Krasniki v. Czech Republic, 28.02.2006, No of Application 51277/99;

    Medenica v. Switzerland, 14.06.2001;

    Öcalan v. Turkey, 12.05.2005, No of Application 46221/99;

    Scozzari ande Giunta v. Italy, 13.07.2000, No of Application 39221 / 98 and 41963/98;

    Sejdovic v. Italy, 24.03.2005, No of Application 9808/02;

    Somogyi v. Italy, 18.05.2014, No of Application 67972/01;

    Association against the plants of animals in Switzerland (VGT) v. Switzerland (No 2) 30.06.2009, No of Application 32772/02

  • See Halim Islami, Artan Hoxha, Ilir Panda, Criminal Procedure, Morava Publications 2006.

  • No Comment
Idlir Peçi
Idlir Peçi, Koraljka Bumči