Pre-trial detentions, a casus belli to make SPAK’s work harder

By Preç Zogaj

For anyone who hears it, the very large number of pre-trial detainees compared with prisoners in Albania – 62 percent, roughly two out of three – indicts a Jacobin, heartless justice system.

More than ninety percent of these pre-trial detainees, convicted at first instance or awaiting final decisions from the Appeal, are subjects of the district prosecutors’ offices and courts. Eight to nine percent belong to SPAK and the GJKKO.

Even from this group, most are exponents of the world of organised crime, trafficking, murders, hostage-taking and other grave criminal offences, for which there is no person with any sense in their head who would demand an investigation while free. A minority are officials and former officials of politics and the administration, accused mainly of corruption.

Since these figures are the starting point of a draft with 105 new articles, proposed by Prime Minister Rama to be inserted into the Criminal Procedure Code, it has been and is necessary for the Ministry of Justice to give updated percentages of this mosaic, rather than make do with a rounded figure.

The public needs to know exactly how many of the pre-trial detainees at both levels are there for criminal offences that convincingly, not to say automatically, exclude investigation while free. How many of them are there because of the well-known tactic of deliberate delays of cases at the Appeal, in order to benefit from the well-known bonus of counting a year and a half of prison for each year of pre-trial detention?

The ministry should also have been concrete in reporting the effects that the Unifying Decision of the Supreme Court has had, which focuses precisely on reducing the number of pre-trial detentions, accompanied by valuable proposals for the treatment and punishment as misdemeanours of many minor violations.

The criminalisation of the latter, at least in rhetoric, has had as the champion of the transition precisely Prime Minister Rama, when his drum beat “prison, prison, prison” even for electricity bills not paid on time or for a perimeter wall of a house.

Without broken-down statistics and realistic references to the source of the problems, legal initiatives always risk being “with a tail”. Rama must have had them, but he was particularly interested in them rounded.

To understand where the shells of the draft presented by him before an audience of elite prosecutors and judges – none of whom turns out to have been informed about its content – are landing, we must bear in mind another great truth: the ninety percent of pre-trial detainees from the district prosecutors’ offices and courts has little or nothing to do with the New Justice.

The latter earned this epithet thanks to its two pillars: the Special Anti-Corruption Prosecutor’s Office (SPAK) and the Special Court (GJKKO). Both were dictated by the US-EU and accepted as sui generis by the Venice Commission, as the only way to fight chronic impunity in the high spheres in Albania.

Rama clearly puts these truths into one bag, wanting to pull the blanket of a responsibility spread over time from the “small justice” of the districts to the special, big one. Where the tooth aches, the tongue goes.

The draft with 105 articles will be subject to consultation with interest groups and the wider public. The whole public has reason to feel itself an interest group and to keep its eyes open as to what is being attempted to be achieved.

The new provisions that make unnecessary pre-trial detentions impossible and guarantee rights of contemporary standards for the accused are welcome and deserve approval. Including, in my view, the right of officials and former officials accused of corruption not to be held in pre-trial detention after the charge ends up in court and the reasons for the detention fall away.

Beyond this approval, it can be seen that already many professionals in the field and investigative media are raising the alarm of instrumentalisation and the use of the 62 percent as a casus belli to make SPAK’s work as hard as possible, to put it in its place, to discourage it, and possibly to throw the baby out together with the water in the bathtub.

The new provisions in the name of equality of the parties in the investigation – when they are not equal by the nature of the thing, since the investigation must discover the truth, whereas the accused hides it – create the impression that the prosecutors and the BKH agents must photograph and film the officials on the spot making deals and taking the crime money. Otherwise it does not count.

The classic and contemporary ways of detecting crimes, ever more sophisticated through the very sophistication of crime in the era of digital technology, are ignored with infantilism.

In the new draft it is envisaged that the High Inspector of Justice (ILD), who has the competence to intervene for any violation, but after the conclusion of the court processes, may now intervene throughout the investigation and the trial as a superfluous link. The devil sleeps in the details, says the well-known German expression. In Rama’s draft you find several such devils. Including the new “status” that corruption receives in comparison with the crimes of terrorism, crimes against life, sexual crimes, kidnappings and trafficking.

I do not say that corruption stands on a plane with terrorism or with murders. Absolutely not. But it is still very active in Albania, it is still the problem of problems in relation to our integration into the EU. Every attempt to make the fight against it harder in these conditions gives a wrong signal, not to say that it serves as a call to arms for officials inclined to be corrupted and for the underworld in general.

Rightly, the prime minister often mentions that we have one hundred years of impunity in the high spheres of power. At last we have five-six years of punishability. Even this by the drop, since in few cases have we seen it finalised in the courtroom with final decisions.

It is too early, too wrong and speculative, an overturning of the narrative for personal interests, as if we passed from impunity to inquisition. To relativise corruption means to relativise the whole. It is to forget why the reform was made. To betray the desire for the undoing of the New Justice. But it is likely to be neither undone nor castrated. That would cost us the closing of the EU’s doors, the strategic alliance with the US and the rule of law itself. / Mapo.al