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

Article 89: Cases of conflicts

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1There is a conflict, in any state and instance of the proceedings, if two or more courts concurrently take or refuse to admit for adjudication the same charge attributed to the same person.

2Conflicts among prosecution offices of the general jurisdiction during the phase of the preliminary investigations shall be settled by the higher-ranking prosecutor. In cases of conflicts during the preliminary investigations between the Special Prosecution Office and another prosecution office, the competence and the jurisdiction of the first shall prevail. The provisions of articles 28 and 29 of this Code shall apply.

3During preliminary investigations, no conflict of territorial jurisdiction because of connected proceedings may be raised.

Table of Content

      1. The purpose of the provision provided by Article 89 of the CrPC is to regulate the procedural relation and the conflict resolution mechanism between different courts and prosecution offices, whenever disputes arise in the exercise of territorial, subject matter competence or due to the connection of proceedings.

       

      1. Criminal jurisdiction precedes conflict resolution by establishing clear norms over competencies, based on the rule for the resolution of the case within a reasonable time. In this respect, delays due to conflicts on competence are unacceptable to criminal jurisdiction, so they should be resolved as soon as possible
      1. The scope of the provision provided by Article 89 is to determine the state of the conflict over competence between courts (paragraph 1), the rules for resolution of conflicts over competences among prosecution offices (paragraph 2), and the determination in which stage of the criminal proceedings no conflict is permitted to be raised (paragraph 3).
      1. The term “jurisdiction” can make sense taking into consideration the function or the body exercising it[1]. If we refer to the function, jurisdiction is the state function that consists in law enforcement, in every specific case, through the coercive force exercised by the impartial court. If we refer to the body that exercises it, jurisdiction is the state power exercised by bodies that enjoy the features of independence and impartiality. In essence, jurisdictional functions are exercised only by the courts,[2] although the procedural law is also expressed for the jurisdiction of the prosecution office. It should be considered that the jurisdictional authority is dispersed, it is attributed to many bodies, which have limited powers, as defined by law (see paragraph 5).

       

      1. In this sense, jurisdiction and competence are not the same concepts. Competence is that part of the jurisdictional function which is exercised by a particular body, namely, the measure of the jurisdiction exercised by a given body, the perimeter within which that body exercises its jurisdiction. Regarding the foregoing, the competence to exercise criminal jurisdiction of the subject matter (type of offense), the territory (place where the offense was committed), the subject being charged, the function to be carried out at a phase or degree of proceedings (function of the prosecution or trial) and possible link with other proceedings.

       

      1. The mechanism for resolving disputes over the competencies between the bodies of judicial jurisdiction does not present new features: as before the changes, the conflicts on competences between the judicial district courts or between the latter and the Serious Crime Courts or the Courts against Corruption and Organized Crime once they are established are resolved by the High Court (Article 91).

       

      1. We mentioned that the exercise of jurisdictional functions belongs to particular bodies. On the other side, any body exercising judicial functions is also a judge of its competence. Thus, judge dealing with the respective case might raise a conflict of competence on the specific case. Paragraph 1 of Article 89 regulates the case of positive conflict (“if two or more courts concurrently take … for adjudication the same charge”), and the case of negative conflict (“if two or more courts concurrently … refuse to admit for adjudication the same charge”), stating their non-competence.

       

      1. The conflict on competence may be raised by the prosecutor, the defendant or the private parties (Article 91), but it may also be declared ex officio by the court (Artilce 83). The law stipulates that subject matter non-competence may be raised and declared at any state and level of proceedings. Territorial non-competence and the one of the joinder of connected proceedings (Articles 79 and 80), can be raised or objected within strict terms, until the commencement of the judicial examination. After the expiry of such term, these types of conflicts on competence cannot be raised nor objected. According to the Constitutional Court, the territorial competence of the court is closely linked with the composition of the panel charged with the examination of each specific case, therefore the word “law” means the legislation on the establishment and competence of courts.[3]

       

      1. These rules are important for the consequences they produce regarding the acts of the process: the violation of the provisions on subject matter jurisdiction causes invalidity of absolute nature, (Article 128/a) whereas the violation of those for the territorial competence and the competence that has a cause joinder of connected proceedings causes only invalidity of relative nature (Article 129).

       

      1. When the court notes its non-competence during the first instance trial, upon request or ex officio, declares it by a decision and sends the acts to the court that it considers to be the competent court (Article 85). When the latter does not accept its competence (the case of negative conflict), it is obliged to object it before the High Court.

       

      1. Conflicts on competence between the courts of the judicial districts or between the latter and the Serious Crime Courts or Courts against Corruption and Organized Crime once they are established are solved by a decision of the High Court. The decision of the High Court is compulsory (Article 86 paragrafi 2); it is notified to the courts in conflict, the respective prosecution offices, the defendant and the private parties and the conflict is considered to be resolved. This does not prejudice the right of the parties to challenge the High Court’s decision for unconstitutionality before the constitutional jurisdiction. From this rule there is an exception, which relates to the case when new proven facts dictate the need to change the legal qualification of a criminal offense, the cause for which another court becomes competent.[4] Let us assume the case of a negative conflict on the competence between the Court of Tirana Judicial District and the Court against Corruption and Organized Crime, which is resolved by the High Court by appointing the first as the competent court. In the case , when new evidence is found during the trial, which dictates the need to change the legal qualification of the offense (let us say that the offense was not committed in simple cooperation, but in the form of a structured criminal group), the court is entitled to declare its non-competence and submit the acts to the Court against Corruption and Organized Crime, although the High Court has otherwise resolved the conflict over the competence. Thus, we have to mention that this might cause the new conflict of competence.

       

      1. The non-competence of the court may also be declared, upon the request of the parties or ex officio during the trial at the court of appeal. Before the amendments proposed by Law No. 35/2017, the court of appeal was entitled to note any type of non-competence. Following the new amendments, it has the right to decide only in the cases when it notes subject matter non-competence (Article 86), which should also include non-competence due to the subject’s characteristics, as in these cases the right to be tried by a court determined by law is violated. In the optics of the lawmaker, alternative cases of subject matter non-competence and what stems from the merger of proceedings due to connection cannot be raised or ascertained by the court of appeal. In the aforementioned special case, the court of appeal annuls the appealed decision and sends the acts to the competent court in the case.

       

      1. The adjudication of the case by a non-competent court in the subject matter aspect has been dealt by the jurisprudence of the Constitutional Court as a problem closely linked with the conditions to exercise the functions of the judge in a specific case. In a decision of 2007,[5] the Constitutional Court stated that “the phrase “court ... determined by law” in Article 42/2 of the Constitution covers not only the legal basis for the existence of the court, but also the composition of the panel charged for the examination of a specific case”. 

       

      1. The rule of paragraph 2 under this Article stems from the need to resolve cases of conflict over the competence between the two prosecution offices, when the proceedings are still in the preliminary investigation phase. Even in this case, conflicts over competence may be of a positive or negative nature.

       

      1. Negative conflict between prosecution offices of general jurisdiction (Article 28 paragraph 1 and 2) exists when the prosecutor deems that the criminal offense he or she proceeds is in the subject or territorial competences of another court of general jurisdiction. In that respective case he/she declares his non-competence and sends the acts to the competent prosecution office. When the latter does not accept such solution, we are in the conditions of a negative conflict on the competence, which is resolved by the General Prosecutor, who decides which will be the competent prosecution office to proceed.

       

      1. On the other hand positive conflict between prosecution offices of general jurisdiction (Article 29 paragraph 1) arises when the prosecutor becomes aware of the fact that a homologous prosecutor investigates the same fact and the same person for whom he is conducting investigations. In such a case, he informs that prosecution office by asking it to send him/her the acts. The proceeding prosecutor, when considering that he should not accept the request, informs the General Prosecutor, setting forth a positive conflict over the competence. The latter has the right to decide which will be the competent prosecution office and, where appropriate, order the immediate delivery of the acts (Article 29 paragraph 2).

       

      1. Even though there may be no dispute about territorial competence, since the Special Prosecution Office extends the territorial competence throughout the territory of the Republic of Albania it might occure conflict of competences on subject metter or due to the connection of proceedings.[6] In the relations between the prosecution offices of the judicial district courts and the Special Prosecution office, regarding the subject matter competence or due to the connection of proceedings, the Cfief of the Special Prosecution Office is the one who takes decisions. So, practically the possible conflicts over competence are unilaterally resolved. In practice two cases may be ascertained: 
      1. The prosecutor of the Prosecution Office of the Judicial District Court, when he/she deems that the criminal offense for which he/she investigates is in the competence of the Special Prosecution Office or is aware that this Prosecution Office conducts investigations for the same fact and in charge of the same person for whom he/she proceeds (positive conflict), he/she informs the Chief of the Special Prosecution Office by sending the acts. It is the latter who has the right to decide whether to accept the acts or to resubmit them to the previous prosecution office. The law establishes the obligation of the sending prosecution office to accept the acts returned by the Special Prosecution Office (Article 28 paragraph 3).
      2. When the prosecutor of the Prosecution Office against Corruption and Organized Crime is aware that a prosecution office of ordinary jurisdiction is conducting investigations for the same fact and in charge of the same person for whom he/she proceeds (positive conflict), he/she informs the Chief of the Special Prosecution Office. It is the latter who reviews the acts and decides who is competent. If he/she considers that the competence belongs to the office he/she runs, he/she makes a decision and notifies the relevant prosecution office requesting the delivery of the acts. The law establishes the obligation of the prosecution office requested to declare its non-competence and to send the acts to the Special Prosecution Office (Article 29 paragraph 3). Thus, the Code establishes the absolute priority rule of the Chief of the Special Prosecution Office in relation to the prosecution offices of general jurisdictions to resolve the cases of negative or positive conflicts over competence.

       

      1. Paragraph 3 of Article 89 imposes a prohibition of general nature: in the pre-trial phase, there is no reason to raise a positive dispute over the territorial competence, due to the rules of connection of proceedings.In other words, this means that at the phase of preliminary investigations, the territorial jurisdiction is determined by the direct rules for its assignment (Articles 76 and following) and not by reason based on the logic of connected proceedings.[7] Therefore the establishment of such a conflict is not allowed to the parties and prosecution offices or courts in conflict. Conflicts of this nature may eventually arise only between bodies of ordinary jurisdiction, because the Special Court has territorial jurisdiction extending over the entire territory of the Republic. The foregoing prohibition applies only to cases of positive conflict over the territorial competence that relate to the reason of connected proceedings. This means that there is no obstacle that, at the phase of preliminary investigations, there may be raised a dispute over the territorial jurisdiction pursuant to Articles 76 and 77 of the Code.

       

      1. The logic of paragraph 3, Article 89 is based on the reason that the prosecutor at the competent court for the slightest criminal offense (or later committed) has the opportunity to conduct investigations for the offense. But, after being made aware of the connected proceedings, its is prosecutor who makes a decision to send the acts to the prosecutor of the competent court, based on Article 82 of the Code. It is important to highlight that paragraph 1, Article 82 provides an important rule: in cases of related proceedings, when several courts have the same subject matter jurisdiction, the territorial jurisdiction belongs to the competent court for the most serious offense. When the acts are equally serious, the territorial competence belongs to the court where the prosecution office, that has first recorded the criminal offense, exercises the functions. For example, lets suppose that the investigated person A attempted to kill with a gun the person X, a fact noted in the city of Durrës. The author immediately left the crime scene. The prosecution office of Durrës District Court, on the acts committed at the scene, recorded a proceeding for the crime of deliberate murder, which remained an attempt, in charge of an unknown person, according to Articles 76 and 22 of the Criminal Code. A week later, in the city of Tirana, a person was arrested in flagrance of armed robbery, according to Article 141 of the Criminal Code, whereby the prosecution office of Tirana Judicial District Court registered another proceeding. Since the act of ballistic expertise proved that the weapon seized in Tirana was the weapon of the murder crime in Durrës, it is understood that the investigations of the respective prosecution offices are related, pursuant to Article 306 paragraph 2 letter b) of the CrPC. From this moment they have to co-ordinate the work and exchange acts, information or instructions given to the judicial police (Article 306 paragraph 1).

       

      1. Thus, according to the paragraph 3 of Article 89; the prosecution office of Durrës judicial district, during the preliminary investigations, cannot raise a positive conflict on the territorial competence deriving from the connection of proceedings (the crime weapon was seized in Tirana), requesting the acts from the prosecution office of Tirana, with the argument that it is investigating for the more serious crime (Article 82 paragraph 1 of the CrPC). The prosecution office of Tirana has the right and is free to investigate the criminal facts in its competence. It is up to the prosecutor at this prosecution office to evaluate the moment when to declare the non-competence, by passing the acts to the prosecution office that is investigating the most serious criminal offense, in this case, the prosecution office at the Court of Durrës Judicial District.

       

      1. The rule we commented above proves that the competence deriving from the connection of proceedings[8] is a mechanism that attributes competence to the bodies of jurisdiction autonomously, regardless of the rules of subject matter or territorial competence.

       

      1. Consequences of non-competence shall be deemed from several viewpoints: validity of acts done, use of evidence taken and validity of security measures set by a non-competent court. We hereby highlight that, in each case, the lawmaker starts with the principle of maintaining the effects of the acts done, evidence taken, and security measures assigned by a non-competent court. Therefore, if the acts are done by the prosecution office which is then declared non-competent, for any reasons, are fully valid and may be used to prove facts according to the procedure determined by law (Articles 28 paragraph 4 and 29 paragraph 3). If the evidence is taken by the prosecution office or the non-competent court, they are usable on condition that they were taken in compliance with the law (Articles 151 paragraph 3 and 32 paragraph 2 of Constitution). They may be used during the preliminary investigations in order to support the requests of the prosecutor, and to evaluate in the preliminary hearing whether the case should be referred to the court. Definitely, they may also be used when proceeding with any of the special rites of the trial: a summary trial, a penalty order or when the case is resolved by a plea bargain and acceptance of punishment. However, during the judicial examination of the case, there is a feature regarding the statements given to the court which is non-competent in the subject-matter: for objecting the content of the statement, it is set the condition for the person to have spoken again, for the same facts, before the competent court, despite the fact whether he/she is a witness (Article 362), a private party (Article 365 paragraph 2) or a defendant (Article 370 paragraph 1). It is not allowed that statements are accessed in the process with the permissible reading mechanism.

       

      1. Security measures set by the non-competent court lose effects in case when, within ten days from the receipt of acts, the competent court does not decide on the security measure.[9] The time starts to be calculated from the day when the acts reach the competent court. The situation is a little more complex when non-competence is announced by the prosecutor, at the phase of preliminary investigations. In such a case, when a security measure is assigned towards the person under investigation, the prosecutor shall immediately notify his decision to both courts (Article 84 paragraph 2). The court which has imposed the measure shall, within three days of receiving the notification, forward to the competent court the security measure file (as well as any other act performed by it, i.e. telephone tapping). The ten-day term starts to be calculated from the day of the arrival of the security measure file at the competent court.

       

      [1] Tonini P., Manuale di procedura penale, 11a edizione, Giuffrè Editore, Milano 2010, page 56.

      [2] The Prosecution Office is organized and functions near the judicial system (see Article 148, paragraph 3 of the Constitution).

      [3] See Law No. 98/2016 “On the organization of judicial power in the Republic of Albania”.

      [4] The term “higher court”, used in the text of the provision and which has remained unchanged, does not appear to be a suitable term. This is not the case for a higher court, but for a court of the same level, as may be the special court or the special department for children in the same district court.

      [5] Decision No.14, dated 17.04.2007 of the Constitutional Court, Koçiu, etc.

      [6] See Article 11 of Law No. 98 / 2016 "On the Organization of Judicial Power in the Republic of Albania ".

      [7] See the Cassation Court of Italy, Criminal Section III, Decision No. 1744, dated 11 August 1993 [Di Stefano, etc., pages 98-99]

      [8] See Article 306 paragraph 2 of the CrPC

      [9] Article 88 of the CrPC

      1. The new constitutional provisions anticipate the establishment of the Prosecution Office against Corruption and Organized Crime,[1] an independent body in organizational and functional viewpoints by the General Prosecution Office. As we have already mentioned, the exercise of criminal prosecution and the representation of the accusation in the trial is entrusted to two bodies, autonomous from one another - prosecution offices of general jurisdiction and the Special Prosecution Office – therefore, the conflicts of subject matter competence will be inevitable. In this historical constitutional context, the resolution of conflict situations on the competence between the two bodies is preceded by the amendments to paragraph 2 of Article 89 of the CrPC (the other two paragraphs remained unchanged). This provision is inevitably linked to a considerable number of procedural norms, some of which have been amended or supplemented.

       

      [1] Article 148/dh of the Constitution

    • No Comment

  • Decisions of the European Court of Human Rights 

    1. In view of Article 6 paragraph 1 of the Convention the courts shall be “established by law”, where the word law means the establishment and competence of the courts (Lavents[1]; Jorgic[2]). According to the jurisprudence of the European Court, failure to comply with the provisions of national law, regarding the establishment and competence of judicial authorities, in principle, constitutes a violation of Article 6 paragraph 1 of the Convention. However, as the courts are the ones to construe the national law, the Court of Strasburg does not make their assessment on issues of competence, except the case when flagrant violations of law are observed[3] (Coeme and others). Its jurisprudence is limited in the evaluation of reasonable reasons that justify the competence of the judicial authority[4] .

     

    [1] Lavents v. Latvia, (paragraph 114), application no. 58442/00, 28 November 2002

    [2] Jorgic v. Germany, (paragraph 65), application no. 74613/01, 12 July 2007

    [3] ibid: Lavents v. Latvia, and Coeme and others v. Belgium, applications nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, 22 June 2000, paragraph 98 (hyperlink)

    [4] ibid: Jorgic v. Germany

  • No Comment
    1. Constitution: Articles 32.2 and 42.2;
    2. Criminal Procedure Code: Articles 28, 29, 74, 75/a, 75/b, 76, 77, 80, 81, 82, 83, 85, 86, 88, 90, 91, 128/a, 129, 151.3, 306, 362, 365.2, 369, 370.1.
  • No Comment

  • Decisions of the Constitutional Court 

    1. No.14, dated 17.4.2007, Koçiu, etc.
    2. No.11, dated 23.4.2009, Bazelli

     

    Decisions of the criminal college of the High Court 

    1. Decision No. 00-2010-266 (135), dated 17.2.2010, Lleshi
    2. Decision No.00-2010-399 (220), dated 10.3.2010, Bajramaj
    3. Decision No.00-2011-216 (42), dated 23.2.2011, Lepuri

     

    Decisions of the European Court of Human Rights 

    1. Coeme and others versus Belgium, Applications no 35247/96, 32548/96, 33209/96 and 33210/96, decision dated 18 October 2000; http://hudoc.echr.coe.int/fre?i=001-63450 (last visited on 7.8.2017);
    2. Jorgic versus Germany, Application no74613/01, decision dated 12 October 2007; http://hudoc.echr.coe.int/fre?i=001-81609 (last visit on 8.8.2017);
    3. Lavents versus Letonisë, Application no58442/00, decision dated 28 November 2002; http://hudoc.echr.coe.int/eng?i=001-65362 (last visit on 10.8.2017);

     

    Decisions of the Cassation Court of Italy 

    1. Cassation Court of Italy, Criminal Secton III, Decision No. 1744, dated 11.8.1993.
    1. Gilberto Lozzi, Lezioni di procedura penale, Terza edizione, G. Giappichelli Editore, marzo 2000, pages 61-86.
    2. Giovanni Conso, Antonio Grevi, Compendio di procedura penale, Terza edizione, Cedam 2006, pages 32-38.
    3. Paolo Tonini, Manuale di procedura penale, 11a edizione, Giuffrè Editore, Milano 2010, pages 69-72.
    4. Piermaria Corso (a cura di), Codice di procedura penale anotato con la giurisprudenza, Terza edizione, CELT, 2004, pages 113-126.
    5. P. Di Stefano, G. Gatti, F. Izzo, R. Marino (a cura di), Codice di procedura penale anotato con la giurisprudenza, XXIII Edizione, Simone, ottobre 2015, pages 95-106.
  • No Comment
Henrik Ligori
Idlir Peçi, Koraljka Bumči