Although the legal and ethical definitions of right are the antithesis of each other, most writers use them as synonyms. They confuse power with goodness, and mistake law for justice. ~Charles T. Sprading, Freedom and its Fundamentals
Demographic data: Population (1990 est.) 3,100,000. Area 28,748 sq. km. Population of largest city (Tirana, est.) 300,000.
The development of the criminal justice system of Albania is in line with that of other European socialist countries. Following the establishment of the People's Republic of Albania in 1946, the model for criminal justice was taken from the USSR.
At the time of the establishment of the People's Republic, the 1929 Penal Code of the former Kingdom of Albania was in force. Between 1945 and 1952, separate enactments on penal law and criminal procedure were adopted to remedy the immediate need for reform. A completely new penal code was adopted in 1952. In connection with the constitutional reform of 1977, the penal code was also reformed. This 1977 Penal Code has been amended since then. A totally new penal code, reflecting the extensive changes in the constitution adopted at the end of 1990 and the beginning of 1991, shall be submitted to the People's Assembly in June 1991. It has been under preparation for three years.
The code of criminal procedure was first adopted in 1953. Since the 1970s, the 1953 Code has been extensively amended in order to correct the influences of Soviet legislation and Soviet legal theory. The present Code of Criminal Procedure (adopted by law no. 6069 on 25 December 1979) consolidated many of these amendments.
In 1968, a system of advocates was established. Following the changes noted above, a draft for a new Code of Criminal Procedure shall be submitted to the People's Assembly in September 1991.
The draft Constitution which is to be discussed by the new pluralist Parliament constituted after the general election of 31 March 1991 contains several proposed amendments of the system of state organs and of the judicial system. The draft Constitution is based on the principle of the separation of powers.
The police force comprises the uniformed police, the criminal investigation police, the traffic department, the laboratory for criminalistics, and the fire department. The uniformed police, in turn, consists of one division for the maintenance of order, and one division for special guard duties (such as the guarding of government buildings, as ordered by the Council of Ministers).
The total police force, not including the fire department, consists of 5000 persons.
The police are organized in 26 district police forces, each of which has a uniformed police department, a criminal investigation department, and a fire department. The central administration is the responsibility of the national police department of the Ministry for Internal Affairs.
Police training is provided at a two-year academy for non- commissioned officers and a four-year academy for officers. Of the curriculum of the two academies, 30 % of the subjects are law- related, 30 % "professional", and the remaining 40 % assorted other subjects (such as languages and physical training). 80 % of the officers have a secondary school diploma.
THE INVESTIGATION AND PROSECUTION OF OFFENCES
Previously, according to the 1953 Code of Criminal Procedure, the investigation and prosecution of offences was to be carried out by the investigators of the office of the public prosecutor, by officers of the State Security Department of the Ministry of Internal Affairs, and by constables of local departments of the police force.
Bodies responsible for law enforcement in administrative sectors, such as finance, health care, trade, and customs, had the right, within the scope of their jurisdiction, to gather evidence and bring this to the attention of the police or the office of the public prosecutor.
In all cases, the public prosecutor had the right to supervise the investigation of the case. The prosecutor had the authority to give binding orders on the conduct of the investigation, to issue warrants for arrest or searches, to dismiss the case, and to submit investigated cases to the examination of the court. The prosecutor had the right to prepare the indictment which was the basis for the court hearing.
The 1953 Code of Criminal Procedure granted public prosecutors and bodies responsible for pre-trial investigation the right to initiate cases in court. A case could be initiated only if there was sufficient evidence of the probable guilt of a suspect.
The 1979 Code of Criminal Procedure concentrated the responsibility for the investigation of offences into a single centralized body subordinated to the Ministry of Internal Affairs. This body was comprised of the Department of Investigation in the Ministry, and the district level offices of investigation that are subordinated to the district bodies for internal affairs. The right of the police and other administrative bodies to investigate offences ceased. Their legal obligation was solely to report cases directly to the court or to the office of investigation.
The 1979 Code also restricted the role of the prosecutor in the pre- trial investigation. The prosecutor had the right to control the legality of investigation and prosecution.
In connection with an amendment of the Constitution (law no. 6799 of 29 June 1983), the Code of Criminal Procedure was again amended in respect of the investigation of offences. The responsibility for pre-trial investigation was separated from the Ministry of Internal Affairs, and turned over to the General Office of Investigation and to district offices of investigation. The Director of the General Office of Investigation is appointed by the People's Assembly. The offices of investigation have the right to prosecute and investigate all criminal cases, with the exception of those subject to private prosecution or to the simplified pre-trial investigation noted above.
Decree no. 7177 of the Presidium of the People's Assembly (20 November 1987) granted the prosecutor the right to initiate the criminal case, to bring certain cases where the evidence of guilt is manifest directly to court, and to approve or overrule the principal procedural decisions of the investigators. This decree strengthened the role of the public prosecutor in the criminal process and, in some respects, created a duality between the bodies of public prosecution and the higher bodies responsible for investigation.
In 1990, the advocates (defence counsel) were provided with the right to participate in all acts of pre-trial investigation. This, together with the amendments described above, created the necessity for the present work on total revision of the Code of Criminal Procedure.
Currently, the police have the power of arrest for up to three days. The public prosecutor has the power of arrest for up to three months. Under the reform presently underway, the powers of arrest held by the prosecutor shall be repealed. All detainees must be brought to a court within three days of their apprehension.
Certain petty criminal offences (such as defamation and petty assault) may be prosecuted as private prosecution offences. Certain other petty criminal offences are subject to a simplified pre-trial investigation conducted by the local police, the offices of investigation, public prosecutors or military units.
THE COURT SYSTEM
Albania has three levels of courts, the district courts, the territorial (zonal) courts and the Supreme Court.
The 26 district courts are the first instance for almost all criminal and civil cases. Sessions are presided over by a legally trained judge, who is normally assisted by two lay assessors. In certain more important cases, the judge will be assisted by four lay assessors. Decisions are made by a majority vote. The lay assessors do not receive any special training for their duties.
The district court judges are elected by a general vote of all the citizens of the district. They are also subject to removal by the voters or the local council.
The case (including the preparatory inquiry used in the more difficult cases) is always dealt with by the full complement of judge and assessors. This has led to a heavy case load in at least some courts. However, the average length of the procedure, from the commission of the offence to the court sentence, is estimated to be two months.
Decisions by district courts can be appealed by the defendant and the prosecutor if the sentence is imprisonment for at least one month, re- education for at least three months, or a fine of 100 leks. In addition, the Minister of Justice, the President of the Supreme Court and the General Prosecutor have the right to "present a demand for the defence of law against court decisions of final form" (art. 179(4) of the Code of Penal Procedure, as amended by Law no. 7386 of 8 May 1990).
The six zonal courts are, as a rule, courts of appeal. As an exception to this rule, they are the first instance for certain important cases, as decided by the President of the Supreme Court.
The zonal court judges are elected for a three-year term by the councils of all the districts comprising the zone. The local councils may also decide on removal of a judge.
The Supreme Court is the highest judicial body in Albania. In addition to its appellate responsibilities, it is the first instance for the more serious offences indicated by the President of the Supreme Court. It has three divisions: penal, civil and military. The procedure before the Supreme Court in appellate proceedings is written.
The members of the Supreme Court are elected by the People's Assembly. The Presidium of the People's Assembly may decide on the pre-term appointment or removal of a single member of the Supreme Court.
A plenary session of the Supreme Court has the power to issue mandatory guidelines to the district courts. Such guidelines have been issued on, inter alia, the criteria for sentencing in such offences as theft or robbery of state property, homicide, and crimes in office.
Before 1990, Albania also had a network of village, city and neighbourhood courts (comparable to the social courts or peer courts found in some other Eastern European countries). These were abolished by Law no. 7383 of 8 May 1990, "On Social Courts", which established a new social court. This social court deals with minor criminal offences that do not pose a great threat to society, and with some civil complaints. It is solely a conciliatory body, with no powers to enforce its decision. It has no powers, for example, to impose punishment.
If reconciliation fails, the case goes to the district court. However, the district court judge has the discretion to renew the attempt at reconciliation, before taking up the case formally (art. 125 of the Code of Penal Procedure, as amended by Law no. 7386 of 8 May 1990).
According to the draft Constitution presently under discussion, the judicial system is to operate independently of other state organs. The Superior Council of the Judiciary, which is presided over by the President of the Republic, is to have the right to appoint judges and other magistrates as well as reprimand or remove them.
THE ENFORCEMENT OF SENTENCES
The forms of punishment are imprisonment, re-education and fines.
At the moment (January 1991), Albania reports some 3 100 prisoners. Of these, only 19 prisoners are reported to be in the 14-17 year- old bracket. In addition, 145 juveniles are in special re- education centres. 41 % of the prisoners are recidivist prisoners.
44 % of the prisoners work in the mining industry. Other major fields are agriculture and construction. The expansion of handicrafts is being considered. Since the beginning of 1990, furloughs have been granted on a discretionary basis. A total of 310 have been granted, and in all except one case the conditions have been fulfilled.
Prisons do not report any particular disciplinary problems. Each prison has a council of re-education, which is elected by the prisoners themselves. This council is responsible, for example, for the arrangement of hygiene, and for some disciplinary matters. Homosexuality (which is illegal in Albania) causes some problems, as does card- playing. No narcotics problems are reported. Tattooing, which is a problem in certain other Eastern European countries, is no longer regarded as a problem; earlier, it was particularly prevalent among young offenders.
Parole can be granted after one half of the prison term has been completed, and the offender has shown through his work and behaviour that he has been reformed. Parole can be proposed by state organs and social organizations, and the decision is made by the court. Revocation of parole is possible if the offender commits a new offence during the parole period which is at least as serious as the first offence (art. 42c, as amended by Law no. 7380 of 8 May 1990).
Three amnesties have been granted over the past ten years. The most recent amnesty, on 1 January 1989, affected 35 % of the prison population.
THE MINISTRY OF JUSTICE
Up to 1990, the duties of the Ministry of Justice were dealt with by a special division of the Supreme Court. The Ministry of Justice was established by Law no. 7381 of 9 May 1990, which took immediate effect.
The Ministry deals, among others, with the following: a) it oversees the organization and functioning of the courts and the Bar; b) it directs and controls the activity of the courts, the court records office, the bailiff's office, the notary's office, and the register of personal dwellings (however, it does not have the right to intervene in the judicial process, which is independent of the Ministry); c) it administers the system of statistics of the judicial organs, the office of investigation, the public prosecutor's office and the office of state arbitration; d) it prepares legislative drafts on questions within its ambit, and reviews legislative drafts in other fields; e) it arranges for the necessary training of lawyers who work for the State, f) it directs the criminalistics and forensic medicine services, and g) it represents Albania in international relations with other judicial bodies.
During the near future, some elements shall be transferred from the Ministry of Internal Affairs to the Ministry of Justice. These include in particular the Prison Department.
The Bar was established on the basis of a 1990 reform (Law on the Advocacy in the People's Socialist Republic of Albania, Law no. 7382 of 8 May 1990; and amendment of art. 9, 10 and 14 of the Code of Penal Procedure, law no. 7387 of 8 May 1990). Before the establishment of the Bar, defendants (and others in need of legal counseling) were assisted by legally trained officials ("advisers"), as established by Decree 4277 of 20 July 1967. The duties of such advisers did not extend to the investigation phase.
The primary purpose of the advocacy is to assist defendants during the investigation and the trial, and serve as counsel in civil and administrative cases (art. 1 of the Law on Advocacy). Participation of an advocate is compulsory if the defendant is a minor (14-17, inclusive), or is incapable of defending himself because of physical or mental defects.
The Bar consists of collegiums of advocates (art. 4 of the Law on Advocacy). Membership is restricted to persons with a law degree and at least three years of experience as lawyers. The Minister of Justice may grant exceptions from these requirements (art. 5).
The Bar is overseen by a Supervisory Council established in the Ministry of Justice. This Council consists of the Min-ister, the deputy Minister, the head of the department, and four advocates elected by the assembly of all collegiums of advocates. The Council decides on the admission of a lawyer as a member of a collegium (art. 6 of the Law on Advocacy). The Council is also responsible for disciplinary measures (art. 15).
The Law on Advocacy contains provisions on, inter alia, the rights and obligations of advocates. Article 13 stipulates that the Ministry of Justice, in cooperation with the Ministry of Finance, determines the schedule of fees, and all fees are paid to the account of the collegium as a whole. The income thus accruing is shared among the members of the collegium on the basis of rules issued by the Minister of Justice.
Advocates do not have a monopoly on the presentation of cases in court. Individual citizens remain free to present their own case to court.
REFORM OF CRIMINAL LAW
At the end of 1990 and the beginning of 1991, considerable political and constitutional changes have been made in Albania. The most significant is the adoption of pluralist democracy (the establishment of different political parties). These and other changes require extensive reform of criminal law. In addition, although the authorities stress that Albania has no problems with such offences as narcotics, organized crime or illegal trade in weapons, the new criminal law shall include provisions on these and other internationally recognized offences. During 1990, the use of capital punishment was considerably reduced (art. 22 of the Penal Code; amended by Law no. 7380 of 8 May 1990). It can now be used for only a few of the more serious offences, such as homicide, treason, terrorism, diversion (incitement to commit sabotage) and sabotage, and espionage. Capital punishment may not be imposed on offenders below 18 years of age, or on women.
At the same time, the offence of treason was redefined. Unlawful migration is no longer regarded as treason, but as "illegal trespass of a border". The offence of agitation and propaganda was also redefined, so that it is now limited to acts "which are aimed at the overthrow of the social and state order established in the People's Socialist Republic of Albania", including fascist and war- mongering propaganda. As one of the results of the latter reform, the spreading of religious propaganda is no longer punishable as agitation and propaganda (art. 58, as amended by Law no. 7380 of 8 May 1990).
The 1990 reform also adopted provisions on prescription of prosecution and prescription of the enforcement of sentences, as well as provisions on rehabilitation ("extinction of penalty" for those who have been reformed through re-education) (art. 39-42b, as amended by Law no. 7380 of 8 May 1990).
REFORM OF PROCEDURAL LAW
The authorities stress that the Albanian state has always abided by, and its legislation has always reflected, the requirements and spirit of a number of international agreements, such as the Charter of the United Nations, the Universal Declaration on Human Rights, and the International Pact on Civil and Political Rights.
Along with the changes noted above, criminal procedure is to be reformed. The most important element of this change is an emphasis on the independence of the judiciary and of the Bar.
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