Changes to the Criminal Procedure Code, a new shield for senior officials?

By Blerina Gjoka

The Albanian government on Wednesday presented in Tirana a 106-article draft law that revises about a fifth of the Criminal Procedure Code, a move that caught the justice system by surprise. The draft law excludes from arrest measures criminal offenses whose maximum punishment is up to five years, sets new filters on the conduct of investigations and the seeking of evidence by prosecutors, and strengthens the regime of investigative secrecy, to the point of prohibiting making public even the fact that a person is under investigation.

Prime Minister Edi Rama promoted the draft as the “Package of Procedural Guarantees” and said that, 10 years after politics handed the judiciary “the sword of punishment,” there is a need to correct “also failures and deformations that cannot be hidden behind results.” By contrast, civil society representatives see this as a project aimed at protecting senior officials from justice by undermining the foundations of the justice reform.

“Rama’s main concern in recent months, or in the months to come, is his relationship with power and post-power, and that means he has not designed the justice reform, nor the need to strengthen the rule of law, nor public accountability and transparency,” said Afrim Krasniqi, director of the Institute for Political Studies. “The latest attempt is to create protective mechanisms in the event of an investigation against him and his associates, and especially for the period when he will no longer be prime minister,” Krasniqi added.

The changes to the Criminal Procedure Code are proposed at a time when Prime Minister Edi Rama’s government has been shaken by new corruption scandals involving former deputy prime minister Belinda Balluku, former head of the State Intelligence Service Vlora Hyseni and other senior leaders. These experiences, according to Krasniqi, have influenced Prime Minister Rama to think about additional mechanisms in relation to justice, while publicly he considers it successful.

Zef Preçi, director of the Albanian Center for Economic Research, also raises the risk that the new provisions will affect the work of justice institutions, although in principle he appreciates the package’s orientation toward limiting pre-trial detention and strengthening alternatives to it. He says the effectiveness of the new reform will depend on how the new provisions are implemented and on the consistency of the courts in decision-making, while suggesting that the government should sanction in this package that sentences be calculated for each repeated episode of a criminal offense, arguing that treating several violations as a single case can create problems in the fight against corruption. Otherwise, Preçi warns, “the proposed amendments to the Criminal Procedure Code will be nothing but a Machiavellian political mechanism to restrain SPAK, keeping tightly closed the ranks of government officials and politicians of the majority led by Mr. Rama, who are de facto candidates to be investigated next by SPAK.”

For Migen Qiraxhi from “Qendresa Qytetare” (Civic Resistance), it is the recent scandals that have prompted the government to make changes to the Criminal Procedure Code, changes which, according to him, target SPAK’s work. “There is a paradox: the more results SPAK has and the more it strikes high levels of politics, the more we see political initiatives that touch SPAK’s activity,” Qiraxhi said, adding that the changes come precisely at a time when this institution has gained a considerable level of public legitimacy.

Changes that endanger the justice reform

The justice reform, approved in 2016 after constitutional changes and supported by the EU and the U.S., aimed to strengthen the independence of institutions, mainly the special ones against corruption and organized crime, and a reorganization based on the vetting of judges and prosecutors. A decade later, civil society experts assess the government’s newly proposed changes to the Criminal Procedure Code as a risk to this reform, despite their being presented as corrections for the protection of human rights, especially in matters of pre-trial detention measures. The main problem, according to them, is the lack of real consultation with justice actors and with the international institutions that supported this reform 10 years ago.

Krasniqi calls this initiative “a personal political move” and to some extent “one of the commissioned laws on the government’s legislative agenda.” He considers it absurd that initiatives touching the essence of justice come only from the Socialist majority, disregarding the parliamentary opposition and justice institutions, which, according to him, shows that “the party-state concept continues to be dominant and the personalization of power the dominant logic.” According to him, these attempts also contrast with the integration process, where the only positive evolution in the chapter on justice and the anti-corruption fight is considered to be the work done by SPAK and GJKKO.

Migen Qiraxhi does not consider this government initiative a surprise, but links it to continuous attempts to touch SPAK’s competences or scope of action through initiatives presented as anti-corruption reforms. “If this today is a government initiative, there is a risk that a common interest of parts of the old politics, left and right, will gradually be formalized, to regain control or to narrow the space of a justice system that for the first time is really striking at high levels,” he says, insisting that this is the fundamental conflict. In this context, Qiraxhi believes the debate should focus on SPAK’s legitimacy and not on the technical content of the proposals.

Meanwhile, Zef Preçi assesses that, despite the risk the package carries for the independence of justice, in principled terms it seems to address some of the most criticized problems of the Albanian penal system regarding pre-trial detention measures. But he says strong question marks remain, mainly over the lack of a full public text at the moment of presentation and over its implementation in practice by the courts.