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

Article 75-a: Jurisdiction of the Anti-Corruption and Organised Crime Court

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1The Anti-Corruption and Organised Crime Court shall adjudicate:

athe crimes provided for by Articles 244, 244/a, 245, 245/1, 257, 258, 259, 259/a, 260, 312, 319, 319/a,319/b, 319/c, 319/ç, 319/d, 319/dh, 319/e,

bany crime committed by structured criminal group, criminal organization, terrorist organization and armed gang pursuant to the provisions of this Code.

ccriminal charges against the President of the Republic, Speaker of Parliament, Prime Minister, member of the Council of Ministers, judge of the Constitutional Court and the High Court, General Prosecutor, High Justice Inspector, Mayor, member of the parliament, deputy minister, member of the High Judicial Council and High Prosecutorial Council, and directors of independent and central institutions defined in the Constitution or in law.

çcriminal charges against above former officials, when the offence was committed on duty.”

Table of Content

      1. The purpose of this provision is to determine the subject matter jurisdiction of the Anti-Corruption and Organised Crime Court in order to increase the efficiency of the fight against these phenomena. Since the lawmaker has chosen to regulate in a separate constitutional provision the subject matter jurisdiction of the Anti-Corruption and Organised Crime Court, the procedural law aims to fully and clearly reflect the purpose of the constitutional lawmaker, avoiding any potential enlargement or narrowing of the provision, which would fall into contradiction with the provisions of Article 42, point 2 of the Constitution.
      1. The scope of this Article is to determine the subject matter jurisdiction of the Anti-Corruption and Organised Crime Court, ensuring compliance of this legal provision with Article 135, point 2 of the Constitution. Furthermore, this article provides for the subjects, the criminal charges against whom, shall be adjudicated by Anti-Corruption and Organised Crime Court, regardless the type of the offence for which the charge has been filed.
      1. Article 75/a of the Criminal Procedure Code is a translation of Article 135, point 2 of the Constitution, which has detailed those elements of the constitutional provision that required to be explained and detailed by the procedural law.

       

      1. Unlike the definition of the subject matter jurisdiction of the Court for Serious Crimes, which has always been left to the ordinary lawmaker, in the case of the Anti-Corruption and Organized Crime Court, the lawmaker has chosen to regulate this issue at the constitutional level, stipulating expressly: a) the category of crimes; and b) the special subjects that fall within the scope of this court.

       

      1. Based on the mandatory constitutional regulation for it, the lawmaker has detailed in letters a) and b) of Article 75/a the meaning of the constitutional term “criminal offenses of corruption and organized crime”. In order to determine the category of crimes in the field of corruption, the procedural law in letter a) of Article 75/a has listed all criminal offenses set forth in the Criminal Code as criminal offences of this field. The term used by the lawmaker in this letter of the law is “crimes”, as all the above-mentioned criminal offences provide such a punishment measure that categorizes them as “crimes” in terms of Article 1, paragraph 2 of the Criminal Code.

       

      1. This category of crimes enters into the subject matter jurisdiction of the Anti-Corruption and Organized Crime Court regardless of the subject charged of having committed the crime. Consequently, any person charged with having committed one of the crimes set out in letter a) of Article 75/a) of the Criminal Procedure Code will be adjudicated by the Anti-Corruption and Organized Crime Court.

       

      1. The constitutional term “criminal offences of organized crime” has been given a meaning by the lawmaker, stating that any offence committed by one of the special forms of cooperation, qualified as such in Article 28 of the Criminal Code, will be considered as an offence in the jurisdiction of the Anti-Corruption and Organized Crime Court. Referral was made to special forms of co-operation provided by the Criminal Code, according to the risk in the ascendant order, as the meaning of organized crime is given precisely in Article 28 of this Code, which provides for 4 special forms of cooperation in the field of organized crime: i) structured criminal group, which means a special form of cooperation, involving three or more persons for the commission of one or more offences, in order to realize material and non-material benefits; ii) criminal organization, defined as the highest form of cooperation, involving three or more persons and which is distinguished by a particular degree of organization, structure, stability, duration, and the purpose of committing one or more crimes, in order to realize material and non-material benefits; iii) armed gang, which represents a special form of cooperation that, by possessing weapons, military munitions and other necessary means, is aimed at the commission of crimes provided in Chapters V, VI and VII of the Special Part of the Criminal Code and iv) terrorist organization, defined as a special form of a criminal organization, consisting of two or more persons, who have a lasting long-term cooperation with the aim of committing offences with terrorist purposes.

       

      1. Criminal charges listed in letter a) of the provision and the charges for any offence committed in one of the forms of special cooperation of organized crime as defined in letter b) of the Article shall be examined by the Anti-Corruption and Organized Crime Court even in cases where the defendant is a minor/child, but in this case the court will apply the special provisions for minor/child defendant provided by the Code and the Criminal Justice Code for Children, adopted by Law No. 37/2017 and which shall enter into force on January 1, 2019.

       

      1. In letter c), the Article 75/a strictly carries the definition and terminology used in Article 135, point 2 of the Constitution, regarding the jurisdiction of the Anti-Corruption and Organized Crime Court to examine any criminal charge raised against public officials of three categories: i) public officials expressly defined by the constitutional provision and listed in letter c) of Article 75/a of the Code, such as: President of the Republic, Speaker of the Parliament, Prime Minister, member of the Council of Ministers, judge of the Constitutional Court and the High Court, General Prosecutor, High Justice Inspector, Mayor, member of the parliament, deputy minister, member of the High Judicial Council and High Prosecutorial Council,; ii) directors of independent and central institutions defined in the Constitution; iii) directors of independent and central institutions defined in law.

       

      1. The terminology “criminal charges” used by this paragraph of the provision is taken from the Constitution, aiming for the legal text to remain loyal to the constitutional regulation and include any offence committed by the above-mentioned officials during the period when they are on duty, even when the criminal offence for which a charge was filed, is different and is not included in the category of offences listed in letter a) of the Article.

       

      1. In letter ç) of Article 75/a of the Code, the lawmake has translated the last phrase of Article 135, point 2 of the Constitution, which determines as the jurisdiction of the Anti-Corruption and Organized Crime Court even the “criminal charges against former officials mentioned above”.

       

      1. Using the same terminology “criminal charges”, the lawmaker aimed to give sense to this constitutional regulation by limiting the jurisdiction of the Anti-Corruption and Organized Crime Court for those criminal charges brought against persons who had exercised, before the time of filing the charge, one of the functions set out in letter c) of Article 75/a of the Code only this criminal fact, for which a charge was filed, was committed during the period when the person exercised the function of the public official. Such regulation was made by the lawmaker in order to give sense to the constitutional provision without losing the purpose for the establishment and functioning of the Anti-Corruption and Organized Crime Court to adjudicate all cases of criminal offences of corruption and organized crime and the criminal offences committed by special subjects during the period they exercise a public function.

       

      1. The interpretation of the constitutional provision by the lawmaker also comes in line with the interpretation given to this provision in point 2 of Article 8 of Law No. 95/96 entitled “Primary subject matter jurisdiction”, where the lawmaker stated that the Anti-Corruption and Organized Crime Court will have the subject matter jurisdiction even in cases when “the public official or high level official leaves during the investigation period”.

       

      1. The primary subject matter jurisdiction of the Anti-Corruption and Organized Crime Court, determined in Article 75/a of the Code is also complemented with the amendment of the Article 80 of the Code, where the lawmaker has regulated the secondary subject matter jurisdiction of this court in cases of related proceedings. Hence, in all those cases when we deal with related proceedings, which are partly within the jurisdiction of the Anti-Corruption and Organized Crime Court and partly under the jurisdiction of ordinary courts and the proceedings can not be divided, the case will be examined by the Anti-Corruption and Organized Crime Court, which takes precedence from the subject matter jurisdiction aspect. The provisions of the above-mentioned articles should be read in close connection with Article 28 of Criminal Procedure Code which provides for the cases when the prosecutor shall transfer the acts to another prosecution office or to the General Prosecution Office.

       

      1. In accordance to Article 81 of Criminal Procedure Code, the same provision applies when one of the defendants is a minor/child, but in such a case for this defendant the court shall apply the special provisions for minor/child defendants provided by the code and the Criminal Justice Code for children, adopted by Law No. 37/2017 and which shall enter into force on January 1, 2019.

       

      1. Article 75/a of the Code will start to apply, at the time of the establishment of the Anti-Corruption and Organized Crime Court, as the subject matter jurisdiction of this provision is and may only be exercised by this special court. Until its establishment, the Court for Serious Crimes will continue to exercise its competences as provided for under Article 75/a of the Code before the amendments made to Law No.35/2017. As mentioned above, Article 75 / a of the Code carries the provisions of Article 135 paragraph 2 of the Constitution. Meanwhile, the transitional provisions of the Constitution, namely Article 179, paragraph 8, stipulate that the transfer of cases must take place under the law and after the creation of the Special Court. The law defining the transfer of cases is precisely the Criminal Procedure Code. The transitional provisions of the Code, in fact, do not provide any transfer of cases under adjudication by the Court of Serious Crimes to the courts of the judicial districts and vice versa. Such a need does not appear and is not related to the scope of the norm, so the lawmaker did not see it reasonable to provide for a special regulation. Following this logic of the norm, cases sent for adjudication, lets assume under charges in accordance to Article 283/a of the Criminal Code (trafficking of narcotics), will continue to be tried by the Court for Serious Crimes.

       

      1. According to paragraph 1 of Article 10 of the Law no. 95/2016 (Hyperlink) the Anti-Corruption and Organized Crime Court will be located in Tirana and will exercise its criminal jurisdiction throughout the territory of the Republic of Albania. The composition of the panels and the respective competence is regulated by the articles 13 and 14 of the Criminal Procedure Code.
      1. The Law No. 9110, dated 27.04.2003 established the courts for serious crimes with the aim of increasing the effectiveness of the fight against organized crime and serious crimes, and improving the quality of adjudication of these cases (see Article 1 of the Law). These courts started functioning on January 1, 2004.

       

      1. The subject matter jurisdiction of these courts was determined in Article 75/a of the Criminal Procedure Code, which was initially added to Article 13 of the Law No. 8813, dated 13.06.2002, according to the competence of the Court for Serious Crimes, the crimes committed by armed gangs and criminal organizations, each crime would be punished at a minimum no less than 15 years of imprisonment and the crimes provided by Articles 140 and 284/a of the Criminal Code in force at that time, including the cases when they were committed by subjects who were in the competence of military courts or by minors/children.

       

      1. Later, this provision was amended several times by Law No. 9276, dated 16.09.2004, Law No.9911, dated 05.05.2008, Law No. 145/2013, dated 02.05.2013 and Law No.99/2014, dated 31.07.2014, extending the subject matter jurisdiction of the court for serious crimes to the subject of the fight against organized crime and corruption of a category of public officials. 

       

      1. Despite the function of this court, in the analysis of the justice system reform, the need to strengthen the fight against corruption and organized crime is presented as one of the essential elements of the reform in criminal justice[1].

       

      1. In response to such concern in the Strategy on Justice System Reform, legal and constitutional amendments were proposed, which regulated the establishment of a specialized and special anti-corruption investigation and adjudication structure, based on successful models of regional countries[2].

       

      1. Based on this strategy, the amendments to the Constitution of the Republic of Albania approved by Law No. 76/2016 provided in Article 135, paragraph 2 of the Constitution, the establishment of a special court against corruption and organized crime in order to adjudicate criminal offences, and all the other offences committed by high officials or former high official, reflecting the need for the establishment of a specialized and special anti-corruption structure provided Strategy on Justice System Reform Strategy adopted by the Parliament of the Republic of Albania[3]. In addition, the above amendments have provided as constitutional bodies in Article 148, point 4 and 148/dh of the Constitution the institution of the Special Prosecution Office and Independent Investigation Unit for the criminal prosecution and investigation of criminal offences of corruption, organized crime and criminal cases according to Article 135, point 2 of the Constitution.

       

      1. Pursuant to the above constitutional amendments, it was adopted Law No. 95/2016 “On the organization and functioning of institutions for combating corruption and organized crime”, published in the Official Bulletin No.194, dated 20.10.2016, which entered into force on 04.11.2016. This law provides the rules for the organization and functioning of the Special Prosecution Office against Corruption and Organized Crime and the Independent Investigation Unit, the primary subject matter jurisdiction and other competences of the Special Courts against Corruption and Organized Crime and the Special Prosecution Office, the way of appointment and the conditions and the criteria to be met by judges, prosecutors, judicial police officers and judicial civil servants appointed to these institutions, and the rules for the organization and functioning of the image control, monitoring of financial and telecommunications data of the above persons.

       

      1. Constitutional amendments related to the establishment of the Special Prosecution Office and the Anti-Corruption and Organized Crime Court had to be necessarily reflected in the Criminal Procedure Code, as the main law defining the rules on the conduct of criminal prosecution, investigation and adjudication of crimes, and the jurisdiction and competence of courts and prosecution offices. For this reason, Article 75/a of the Criminal Procedure Code has been amended in accordance with Article 135, point 2 of the Constitution.

       

      [1]Document: Analysis of the Justice System in Albania, http://reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, pages 276 – 277, 283 and 286, last visited on  25.07.2017.

      [2]Document: Strategy on Justice System Reform  httpsc://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, pages 43 -44, last visited on  25.07.2017

      [3]Strategy on Justice System Reform , Part III, Criminal Justice, Objective 1 “Increasing the efficiency and effectiveness of criminal justice through the consolidation of the mission and functions of the prosecution office, and through the reorganization of its structures and the redistribution of responsibilities between them”, page 21  (the Albanian language version https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, last visited on 25.07.2017).

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    1. Analysis of the Justice System in Albania, June 2015, 177 pages, prepared by the Group of High Level Experts of the Ad Hoc Parliamentary Committee “On Reform of Justice System” http://www.reformanedrejtesi.al/sites/default/files/dokumenti_shqip_0.pdf, last visited on 25.07.2017;

     

    1. Strategy on Justice System Reform https://www.reformanedrejtesi.al/sites/default/files/draft_strategjia_versioni_shqip.pdf, last visited on 25.07.2017;

     

    1. Report on the draft-law “On some addenda and amendments to the Criminal Procedure Code”, https://www.parlament.al/wp-PENALE-Resized.pdf, last visited on 25.07.2017.

  • Constitution: 

    Article 135, point 2 of the Constitution, as amended by Law no. 76/2016; 

    Law: 

    Articles 8, 9 and 10, point 1 of the Law No. 95/2016 “On the organization and functioning of the  institutions combating corruption and organized crime”. 

    Articles 285 and 286 of Law No. 35/2017, dated 30.03.2017 “On some addenda and amendments to Law No. 7905, dated 21.03.1995 “The Criminal Procedure Code of the Republic of Albania” (as amended)”.

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  • Laws 

    Article 13 of Law No. 8813, dated 13.6.2002 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”; 

    Law No. 9110, dated 24.7.2003 “On the organization and functioning of the Courts for Serious Crimes”; 

    Article 4 of Law No. 9276, dated 16.9.2004 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”; 

    Article 5 of Law No. 9911, dated 5.5.2008 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”; 

    Article 1 of Law No. 145,dated 02.05.2013 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”; 

    Article 1 of Law No. 21,dated 10.03.2014 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”; 

    Article 1 of Law No. 99,dated 31.07.2014 “On some addenda and amendments to Law no. 7905, dated 21.3.1995 “The Criminal Procedure Code of the Republic of Albania”.

Joana Qeleshi
Idlir Peçi, Koraljka Bumči