Table of Content

• Comments
  • Purpose
    1. The purpose of this provision is to determine the position of the victim in a criminal process and his/her procedural rights from the time of registration of the criminal offence until the end of the process, guaranteeing the approximation of domestic legislation with the international legislation and especially with the European one.
  • Scope
    2. The scope of this Article is to determine: 

    1. Victim ‘s rights during the preliminary investigation and trial phase;
    2. The way of exercising these rights if the victim does not have legal capacity to act and
    3. Rights of the heirs of the victim.
  • Comments
    3. The importance of the victim of a criminal offence in the process is indicated by the lawmaker since adding Article 9/a to the Criminal Procedure Code, a norm set out in the section of the General Provisions of the Code, highlighting the obligation of public bodies to guarantee that victims of the criminal offence are treated with respect for their human dignity and are protected from being damaged again during the exercise of rights provided by the code[1]

     

    4. Article 58, although in its paragrah 1 lists the rights of the victim of a criminal offence, does not provide a definition of this term. Such a definition is in fact not provided by any other provision of the Code, even though in special provisions the law provides his/her rights.

      

    5. If we refer to the definition given to the term victim of a criminal offence by the Directive 2012/29/EU of the Parliament and of the European Commission dated 25.10.2012 “On establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA” (Directive 2012/29/BE), on which the amendment made by Law No. 35/2017 is based upon, a victim of crime means: 

    1. the individual who has suffered a damage, including physical, mental, emotional, or economic damage, which is directly caused by the criminal offence (Article 2, letter (a), paragraph (i) of Directive 2012/29/BE);
    2. a member of the family of the person whose death is caused by a criminal offence and who has suffered a damage as a result of the death of the person (Article 2, letter (a), paragraph (ii) of Directive 2012/29/BE).

     

    6. As it is noticed, this definition is narrow and refers only to an individual person, excluding a legal person as a person who may enjoy the quality of a victim of a criminal offence in the process.

     

    7. Unlike the above definition, the lawmaker has not anticipated in any of its provisions in the Criminal Procedure Code the meaning of the victim of a criminal offence, treating as such only individuals. Consequently, there is no reason to prevent legal persons, whether private or public, who are harmed by a criminal offence, seeking to participate in the criminal proceedings, exercising the rights provided by law with the quality of the victim of a criminal offence. Certainly, in such a case, his/her rights will be limited to as far as practicable by a legal person.

      

    8. It is important to reveal the fact that the victim of a criminal offence is not a party in the process, despite participating in it, unless he/she participates in the process with the quality of the civil plaintiff in the criminal process, according to the rules determined in Articles 61 – 68 of the CrPC or when he/she has the role of the accusing victim in the process, according to Article 59 of the CrPC. Although the CrPC provides the victim of the criminal offence as a subject of the criminal offence, the parties in the process are only the prosecutor, who represents the accusation body in the name of the public interest and the defendant, who may defend himself or herself through an assigned or elected defense counsel ex officio, as the person against whom the trial takes place. Consequently, the participation of a victim in the criminal process, having the opportunity to exercise the rights provided by law, does not confer on it the quality of the party in the process. An exception to this rule is the case when the victim of a criminal offence intervenes in the process with the quality of the civil plaintiff, seeking compensation for the damage caused and the case when the victim of the criminal offence assumes the role of the accusing victim, participating as a party in the process, in order to follow the private prosecution. In this latter case, the accusing victim assumes the role of the prosecutor at trial.

     

    9. The rights of the victim of a criminal offence listed in paragraph 1 of Article 58 may be divided into two categories: a) potential rights, which the victim may choose to exercise or not and b) mandatory rights, the exercise of which brings the obligation of the proceeding body to fulfill them. Specifically, the lawmaker has selected to list these rights of the victim of the criminal offence.

      

    10. First right listed is to require the prosecution of the perpetrator. This right of the victim of a criminal offence is related, on one side, to her right to request that the prosecution body conducts criminal prosecution in cases when the offence is prosecuted ex officio and with her right to seek the exercise of criminal prosecution by filing an appeal for the cases provided in Article 284 of the CrPC, cases in which criminal prosecution may not commence without its appeal. When a victim submits a complaint or appeal, minutes is held on his/her statements in accordance with the provisions of Articles 238, paragraph 2 and 284, paragraphs 2 and 3 of the CrPC,[2] .

     

    11. Second right listed is b) to seek medical care, psychological assistance, counselling and other services provided by the authorities, organizations or institutions responsible for assisting the victims of criminal offences[3] . Victims are entitled to access confidential support services of victims, free of charge. The service that should be provided to them by the state must be ahead, during and at a convenient time after criminal proceedings. Such support must be regulated by a special law, so that the acknowledgement of these rights remains not only formal.

     

    12. Victim has a right to communicate in his or her own language and to be assisted by a translator and an interpreter of the language of signs or communication facilitator for people who are not able to speak and hear which aims to facilitate the participation of the victim in the process, being assisted free of charge by a translator, interpreter or communications facilitator, in cases when he/she does not know the Albanian language, he/she does not hear or speak or has limited abilities in speaking and hearing. This provision is in line with the provisions of Article 8, paragraph 2 of the CrPC[4] . The Directive seeks to ensure that victims — based on their personal characteristics (e.g. gender, disability, age, maturity, relationship to or dependence on the offender) — understand and be understood. Therefore, prosecutorial and judicial authorities have to pro-actively assist victims to do so throughout criminal proceedings.

     

    13. Victim has a right to choose a defence lawyer and when it is the case to receive free legal aid pursuant to the legislation into force.This provision recognizes on one side the right of the victim to participate in the process assisted by the selected counsel and on the other side his/her right to receive free legal aid, in those cases when the law provides so. The lawmaker gave a right to the victim to choose a defense counsel. The lawmaker used the term “defense counsel” in this provision and not that of “representative” to make clear the fact that the victim in the process may only be represented through a person who meets the “defense counsel” criteria in the sense of Article 49 of the CrPC and his/her representation may not be performed by whoever, according to the provisions of the Civil Code. It should be noted that the right of the victim to have defence council is not the same as that of the defendant, to whom the prosecuting body has the obligation to appoint a defense counsel ex officio if he does not have an elected defense counsel and asks for one according to the provisions of Articles 49 and 49/a of the CrPC. However, victim has to take care that a defence council he/she chooses is not incopabatible according to Article 49/b. Victim of a criminal offence who does not have the capacity to act, will exercise his/her rights through his/her legal representative.[5] Legal representative is defined in the Civil Code. Therefore his/her legal representative will either choose a defense counsel either seek for a free legal aid. Legal aid is regulated by Law No. 111/20017 “On State guaranteed legal aid” and the victim of a criminal offence benefits free legal aid only in the cases provided in the that law and under its terms.[6] Thus, legal aid, which includes representation of the victim in the court (secondary legal aid) for the victim is provided by advocates upon the request of the interested party and upon decision of the Court[7]. Once the Court grants legal aid to the victim and the defense counsel is appointed to the victim, he enjoys the same rights as the defense counsel paid by the victim himself/herself.[8].

     

    14. One of the rights given to the victim is also right to seek at any time information about the status of the proceedings, and to be acquainted about the acts and evidence, without breaching the principle of investigative secrecy. This right to information of the victim is one of his/her essential rights, which enables him/her to have access to criminal proceedings. Such right of the victim is related to the obligation of the prosecutor to make available the requested information, unless the principle of investigative secrecy is violated. Such right is further detailed in Article 279/a, paragraph 1 of the CrPC while in paragraph 2 of that provision the lawmaker has listed cases when the prosecutor may refuse the request of the victim of a criminal offence to obtain information on the state of the proceedings, to be acquainted with the acts and obtain copies thereof.[9] The ratio for this right given is that all victims are very often forgotten in the administration of justice Therefore being entitled to such information it is clear that this is one of the basic rights in the procedure.

     

    15. Right to require to receive the evidence and submit other requests to the proceeding authority aims to guarantee his/her access to the criminal process and is related to the right to receive information at any time. It should be noted that the victim’s right to file evidence in the process may be applied only during the pre-trial or preliminary hearing phase, as in the foundation trial, there may be submitted only the evidences of the parties allowed by the court at the preliminary phase. If the victim of the criminal offence has evidence, he/she may file them at the prosecutor during the preliminary investigation phase and if the latter has refused to take them, he/she may submit them to the pre-trial judge as in the case when the prosecutor has requested the delivery of the case to court and when the prosecutor has decided to dismiss the charge or the case for a misdemeanor (Article 328 of the CrPC), or has requested to cease the charge or case for a crime (Article 329/a of the CrPC). An exception to this rule is certainly the case of the accusing victim regulated by Article 59 of the CrPC, which may only present evidence to trial. In addition to the right to seek evidence, the lawmaker has also recognized to the victim of a criminal offence the right to file other claims, such as conducting other investigations in certain directions, re-verification of the charge, etc.[10] .

     

    16. The victim of a criminal offence has the right to be informed about the arrest of the person suspected of committing a criminal offence and his/her release. Such right equally constitutes an obligation for the prosecutor to guarantee the implementation of this provision. Obligation of the prosecutor during investigation phase comes out from the Article 279/a. Being informed about the arrest and release of a person suspected of committing a criminal offence guarantees, on one side, the right to information of the victim of the criminal offence and, on the other side, his or her ability to take security measures, either personally, or through relevant instituion. Here has to be pointed out the the victim himself/herself can ask to be notifyed about arrest or relise of the defendant in his/her first contact with the authoroties. This request is binding to the authoroties and it includes notifiaction about imprisoment sentence as well. This right is also foreseen as one of the rigts given by the respective Directive.

     

    17. The victim of a criminal offence has the right to have information on the fate of the investigation and the trial. Such right is also reflected in other provisions of the CrPC, in which the lawmaker has determined the obligation of the appropriate proceeding authority to notify the victim of the commencement, continuation and termination of criminal proceedings. Thus, in Article 291, paragraph 2 of the CrPC, the law provides the prosecutor’s obligation to immediately notify the victim of a criminal offence of his/her decision on non-initiation of the proceeding. Likewise, in Article 328, paragraph 2, the lawmaker has provided the obligation of the prosecutor to notify within five days the victim of the criminal offence of his/her decision to dismiss the charge or the case when proceeding on misdemeanor is conducted. On the other side, the court has the obligation to notify the victim of a criminal offence to participate in the preliminary hearing (Article 332/a, paragraph 1), and in the foundation trial (Article 333, paragraph 2), and to communicate to him/her the final decision in cases when he/she is not present at trial.[11] .

     

    18. Victim has a right to appeal in the court against the decision of the prosecutor for the non-initiation of the proceeding and the decision of the prosecutor or of the judge of the preliminary hearing to dismiss the charge or the case but thisright is not absolute. Thus, the victim has the right to file an appeal within 10 days from the date of notification of the decision of the prosecutor on the non-initiation of criminal proceedings under Article 291, paragraph 2 and of the decision of the prosecutor to dismiss the charge or case in the cases of criminal offences under Article 329, paragraph 1 of the CrPC. This is the right of the victim towards the decision of the pre-trial judge who has accepted the prosecutor’s request on the dismissal of the charge or the case in situation of crimes (Article 329/b, paragraph 6), or when this judge decides on his/her own to dismiss the charge or the case under Article 332/dh, letter ç). Meanwhile, the victim of a criminal offence has no right to file an appeal against a final court decision, as the lawmaker has left such right only to the parties in the trial. If the victim enjoys in the process the quality of the accusing victim or the civil plaintiff in the criminal process, he or she is legitimized to appeal pursuant to Articles 409 and 411 of the CrPC only for the part of the decision that is legitimized.

     

    19. Right of the victim to ask a compensation for the damage and be accepted as a civil plaintiff in the criminal process is right of the victim which was recognized by Albanian legislation even before the amendments to Law No. 35/2017. The way the victim of a criminal offence may claim the compensation of damages in criminal proceedings is by filing a claim and taking the position of a civil plaintiff in the criminal process according to the rules set forth in Articles 61-68 of the CrPC.

     

    20. One of the rights given to the victim is also to be excluded, in the cases provided for by the law, from the payment of every expense for receiving the acts and judicial fee for the submission of the lawsuit connected with the status of the victim of the criminal offence[12]. This right must be guaranteed by special legislation on court fees, as the code only recognizes this right, but its compliance should be regulated in the relevant law.

     

    21. Right to be summoned in the preliminary hearing and in the first hearing derives from the right provided in letter ë) of paragraph 1 of this Article. The lawmaker has determined the obligation of the court to notify the victim of a criminal offence for the preliminary hearing and the first hearing, as its participation in the process is not mandatory. The victim of a criminal offence has the right to take part in the proceedings, but has no obligation to do so and may choose not to be a participant. Consequently, the trial continues regularly if the notification is regular and the victim does not want to appear. Notification of the victim of a criminal offence is provided in Articles 137 and 138 of the CrPC.

     

    22. Victim has a right to be heard by the court even when none of the parties requires him to be summoned as a witness.This right is different from the one when victim has knowledge of the circumstances of the commission of the offence, in which case he/she should participate in the process with the quality of the witness. However, it may happen that the victim is not in these conditions and neither party asks for him/her to be called a witness. In this case, the law has provided the court’s obligation to hear the victim in his/her procedural position as a victim of the criminal offence, so that he/she may express his/her views on his/her behavior and experience for the criminal offence. However, it is important to mention that this provision provides a right of the victim and not a duty of the victim.

     

    23. The lawmaker has chosen that the list of rights defined in paragraph 1 of Article 58 of the Criminal Procedure Code be indicative and not exhaustive. For this reason, this provision has provided the possibility for the victim to have other rights, set forth in specific provisions of the law, such as, for example, the right to hear through the video-conference, etc.

     

    24. In paragraph 2 of the provision, the lawmaker has anticipated the obligation of the proceeding authority (judicial police officer, prosecutor and court) to immediately notify the victim of the criminal offence on his/her rights listed in paragraph 1 of the law. In order to guarantee the introduction of the victim with these rights, the lawmaker has determined the obligation of the proceeding body to hold minutes of the procedural action taken. Therefore, it is up to the prosecutor that as soon as he/she realizes that victim is known, prosecutor has to inform the victim about his or her rights. This could be done similar to the bill of rights given to the defendant. The most important thing is that this is recorded and that this becomes part of the file. This right has to be seen together with Article 128/a paragraph 1 letter c.[13] It is understood that the introduction of the victim of a criminal offence with his/her rights, performed by the court, is reflected in the court hearing process and there is no need to be signed by the victim.

     

    25. In paragraph 3 of the Article, the lawmaker has arranged the case of the victim who has no capacity to act. The concept of ability to act is a juridical-civil concept, which is defined by Articles 6-10 of the Civil Code. A child victim under 14 years of age exercises his/her rights through a legal representative (parent) or his/her guardian in cases when the parent does not exercise parental responsibility under the Family Code, while the person who has been deprived of his/her ability to act exercises such rights through his/her guardian, assigned according to the provisions of the CrPC and the Family Code. An exception to this rule is the case when it is not in the victim’s interest, as it may be, for example, the situation when the legal representative or guardian is defendant, or between him and the victim of the offence there is a conflict. In such a case, the lawmaker has determined the obligation of the court to appoint a special guardian, in accordance with the provisions of the Family Code[14]

     

    26. In order to emphasize the importance of the child in the criminal process and the special protection guaranteed to him/her by the state, the lawmaker has adjusted in a special provision the rights of the child victim, as defined in Article 58/a of the CrPC.[15]

     

    27. In paragraph 4 of the provision the lawmaker has defined the rights of the heirs of the victim, willing to recognize their right on one side and, on the other side, to determine the limitations that the heirs of the victim have in relation to the rights that only the victim of a criminal offence may enjoy.[16] The lawmaker has not provided any definition of the circle of persons who may enjoy the quality of the heir of the victim of a criminal offence, particularly in circumstances when the circle of persons may be very broad and their identification difficult for the prosecuting body. We deem that in that case definition of the Directive has to be taken into account. Article 2, of Directive 2012/29/EU[17] includes in the the victim of a criminal offence also certain family members. However, it is up to each state to limit the number of family members who may benefit from the rights set out in the Directive taking into account the individual circumstances of each case. Therefore, by leaving it open legeslateor left this to the judicial practice that should be guided by the framework given by the Directive. This would be in our opinion: “family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person's death”.

     

    28. It should be said that, although our lawmaker has not chosen to limit the circle of persons explicitly he has linked the rights of the heir of the victim of a criminal offence with the interest, identification and knowledge of the address of their place of residence, such as in Article 328, paragraph 2.

     

    [1] Article 9/a, paragraph 2 of the CrPC.

    [2] Provisions which are in harmony with Article 5, paragraph 1 of Directive 2012/29/EU

    [3] Right is provided in conformity with Article 8 of Directive 2012/29/EU

    [4] In line with Article 5, paragraph 2 and 3 and 7 of Directive 2012/29/EU

    [5] See the following paragraph 26

    [6] See article 11 and 12 of the Law on Legal aid

    [7] See article 21 and 22 Law on Legal aid

    [8] The right of the victim to be assisted with legal aid is also set out in Article 13 of Directive 2012/29/EU

    [9] Article 6 of Directive 2012/29/EU

    [10] Article 10, point 1 of Directive 2012/29/EU

    [11] Article 11 of Directive 2012/29/EU

    [12] Article 14 of Directive 2012/29/EU

    [13] See comments under Article 128/a

    [14] Articles 275-278 of the Family Code

    [15] See the comment on Article 58/a of the CrPC.

    [16] The restriction of these rights is also in compliance with Article 2, paragraph 2, letter (a) of Directive 2012/29/EU, which provides that Member States may limit the rights and number of heirs that may enjoy these rights depending on the circumstances.

    [17] See paragraph 1 letter a and b of the respective provision of the Directive http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF.

  • Historic context
    29. Until the amendments to Law No.35/2017, the criminal procedural law recognized as a procedural subject the party damaged from the criminal offence provided by Article 58 of the CrPC and other related provisions. In its original version, Article 58 provided as a possibility of a person damaged by a criminal offence and his/her only the right to demand the prosecution of the perpetrator and compensation for the damage.

     

    30. Then, paragraph 3 was added by Law No. 8813, dated 13.06.2002 “On some addenda and amendments to the Criminal Procedure Code” , which acknowledged the right of the party damaged by the criminal offence to file a request with the proceeding body and request the taking of evidence, recognizing the possibility to appeal the decision of the prosecutor in case of non-acceptance of such request within 5 days of receiving such notification.

     

    31. Notwithstanding these provisions, a series of guarantees were not anticipated for the party damaged by the criminal offence regarding his information, protection and support, his participation in the trial, etc. The weak role of the victim of a criminal offence in the criminal process and the role of the prosecutor in guaranteeing his/her rights has been identified as a shortcoming of this process, which was in conflict with international standards. This fact is also evidenced in the Justice System Analysis in Albania, where deficiencies are considered the lack of anticipating mechanisms for the physical protection of victims and their families; respect for the right to legal aid when legitimated as a party to the proceedings; recognizing the rights, taking measures to avoid their psychological and emotional harm; avoiding the requestioning of the victim; long-term physical and psychological assistance to victims; protecting their dignity during the questioning, avoiding direct contact between the victim and the defendant; reimbursement of expenses made by damaged parties as a result of active participation in the process; the right to appeal against the decision of the proceeding authority; protection of private life; the right to compensation through restorative justice etc.[1].

     

    32. In the Justice Reform Strategy, it was determined as an objective the reform the role of the victim in the criminal process, harmonizing the relevant provisions with the provisions of Directive 2012/29/EU and the ECHR practice in this regard. Specifically, in the strategy, measures were taken to provide a broader circle of rights for victims of crime and their family members in the CrPC in accordance with EU directives and international standards, ensuring: i. their access to justice bodies; ii. the right to be informed; iii. the right to be counseled and effectively protected by a lawyer, free of charge; iv. the right to compensation; v. fair and proportional indemnity; vi. reimbursement of expenses; vii. delivery of psychological and medical assistance; viii. the right not to be startled[2].

      

    33. In order to guarantee the improvement of the current provisions of the CrPC and their harmonization with the content of Directive 2012/29/EU, the lawmaker amended by Law No. 35/2017 not only Article 58 of the Code, but also other related provisions, which provided the rights of the victim of a criminal offence.

     

    34. It is also worth mentioning the fact that the lawmaker has replaced the term damaged by a criminal offence with the term victim of a criminal offence to guarantee the harmonization of the terminology of domestic legislation with acquis communautaire. Despite the negative connotation that the term victim has in everyday life, in the present-day Dictionary of Albanian Language, the victim is defined as the person who is injured or killed in an accident, who is injured by earthquakes, floods, etc., or the person who unjustly suffers misfortune by someone. So, this term does not only mean the person who loses life from an occurrence, but also the person who is harmed by it.

     

    [1] The Justice System Analysis in Albania, June 2015, drafted by the High Level Expert Group at the Ad Hoc Parliamentary Committee on Justice System Reform, Criminal Justice System, page 179-180, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last visited on 75.08.2017.

    [2] The Justice System Reform Strategy https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, page 26, last visited on 27.08.2017.

  • International acts
    35. Directive 2012/29/EU of the Parliament and of the European Commission dated 25.10.2012 “On establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA”

     

    36. Article 58 of the CrPC is in harmony with the provisions of the above directive and reflects the rights provided therein. Moreover, as explained above, without having a definition of the term “victim”, Article 58 includes both natural and legal persons, providing protection for a category of subjects which are not recognized by the directive. The same reasoning applies to the case of the heirs of the victim of a criminal offence, which includes a broader circle of subjects than the one provided by the directive.
• International standards/International references/Best examples
  No Comment
• Legislative material
  37. The Justice System Analysis in Albania, June 2015, drafted by the High Level Expert Group at the Ad Hoc Parliamentary Committee on Justice System Reform, http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last visited on 27.08.2017;

   

  38. 38. The Justice System Reform Strategy https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, last visited on 27.08.2017;

   

  39. Report on the draft-law “On some addenda and amendments to the Criminal Procedure Code”, https://www.parlament.al/wp-content/uploads/KODI-I-PROCEDURES-PENALE-Resized.pdf, last visited on 27.08.2017.
• Related articles

  Law:

  Articles 9/a, 49, 49/a, 58/a, 61-68, 279/a, 283, 284, 291, 328, 329, 329/a, 329/b, 332/a, 332/dh, 333, 409 and 411 of CrPC.

  Articles 6-10 and 360 of the Civil Code.

  Articles 275 - 278 of the Family Code.

• Sublegal acts
  No Comment
• Decisions
  No Comment
• Literature
  No Comment
• Archive

  Laws

  Article 58 of the CrPC.

  Law No. 8813, dated 13.06.2002 “On some addenda and amendments to the Criminal Procedure Code”.