Government’s draft Criminal Procedure Code “risks sterilizing SPAK”

By: Vladimir Karaj

The Albanian government presented on Wednesday in Tirana a 106-article draft law that revises about a fifth of the Criminal Procedure Code, a move that took the justice system by surprise and ignited a new debate over the fate of the fight against corruption.

Speaking at the conference organized by the Ministry of Justice, Prime Minister Edi Rama promoted the draft as the “Package of Procedural Guarantees”. Rama said that ten years after politics handed the judiciary “the sword of punishment”, there is a need to correct “failures and deformations that cannot be hidden behind the results”.

“If until now we have mainly strengthened the side of the scales where the power of the state over the individual weighs, in this package we give the weight it deserves to the side where the power of the individual’s rights stands against the state,” Rama declared, adding that in Albania “the scales of justice lean very visibly toward the repressive weight of the state”.

The government presented the initiative as a product drafted by 19 academics and magistrates from Italy, France and the Netherlands, in cooperation with the Council of Europe. But the draft caught Albanian prosecutors and judges by surprise.

“Everything was done in secret, which is why I was not at that meeting today. Because I asked for a copy and they did not send it to me,” Engert Pëllumbi, a judge of the Special Court of Appeal, told BIRN.

A prosecutor of the Special Prosecution Office also told BIRN, on condition of anonymity, that SPAK magistrates had not had access to the draft before Wednesday. Stressing that he still needed time to review all the proposals, he described the package as “an attempt to sterilize the institution”.

Even harsher was a former prosecutor with long experience, who called the draft a “massacre” with serious errors, the details of which remained unclear.

“It looks either like an order from lawyers, or like an order from people in trouble who expect to face the doors of justice,” he told BIRN, adding that the changes “do not have the concern of the overwhelming majority and do not solve normal people’s problems”.

An analysis of the draft law and its explanatory report shows that the initiative codifies several guarantees of the European Court of Human Rights, EU directives and the Constitutional Court on pre-trial detention and equality of arms. However, the draft introduces filters that make the examination of mobile phones harder, shorten wiretaps, require public officials to be notified five days before security measures, limit preliminary judges and impose prior judicial authorization on media reporting.

Opposition representatives opposed the draft and accused Rama of using the Council of Europe as a shield to block SPAK’s investigations.

“Until now Edi Rama has made bespoke laws for others. Today, he is tailoring a law to his own measure,” the head of the Democratic Party’s parliamentary group, Gazmend Bardhi, declared.

The changes on pre-trial detention

During the presentation of the draft law, Prime Minister Edi Rama referred to the Council of Europe’s SPACE report, according to which 62% of prisoners in Albania are pre-trial detainees, compared with a European average of 26% and Russia’s 30%.

“In 2026 we must also begin to put an end to the culture of pre-trial detention as an automatic response; of investigation without a deadline, as an exercise of arbitrary force over the individual,” the Prime Minister declared, according to whom “a justice system that says: ‘better a guilty person out than an innocent person in’, is not weaker, but stronger”.

Based on Council of Europe reports and a Constitutional Court decision, the draft law establishes the obligation that coercive measures be given as a rule only for offences with a maximum punishment of over 3 years’ imprisonment, while “prison arrest” is banned when the maximum punishment is under 5 years or when a punishment of up to 3 years is foreseen.

Article 228 requires “concrete and verifiable evidence” and bans the use of silence as evidence of dangerousness in setting a security measure. The changes also foresee nullity and disciplinary responsibility for a judge who does not reason independently of the prosecutor’s request. The package also creates “defence investigations”, where the lawyer gathers evidence with equal value to the prosecutor’s, and makes the audiovisual recording of interrogations mandatory.

The opposition called this concern hypocrisy, recalling that since 2013 the government has used prison for every social problem, including the energy crackdowns in which over a thousand people were arrested. “Edi Rama remembered that he had caused this problem in February 2025, after the arrest of Erion Veliaj,” Bardhi said.

Meanwhile, Article 105 of the transitional provisions obliges courts to verify ex officio, within 60 days of the law’s entry into force, all active security measures, and within 3 days “prison arrest” where it is no longer allowed under the new law.

Officials suspected of corruption

SPAK’s and the National Bureau of Investigation’s (BKH) investigations are directly affected by the first chapter of the draft, which foresees the actions taken after the seizure of electronic devices, based, according to the references, on the Constitutional Court’s 2025 decision on the protection of correspondence.

“The police and the prosecution can seize the device, that is not in question, but to open, copy or process the phone’s content, prior authorization from the court is needed,” Rama said.

The draft law builds a detailed and complex procedure that narrows digital investigation. According to its provisions, even in flagrante delicto or urgency, the police and the prosecutor may only seize the mobile phone without the right to access it without a court decision. Suspicions of terrorism, crimes against life, sexual crimes, kidnapping and trafficking are exempted from this protection of correspondence — but those accused of corruption are not.

According to the draft, the court sets in advance the categories of data, the electronic application to be searched, the time period and the keywords to be searched for. If, during the examination, data emerge beyond those keywords or the limits in the court order, the prosecutor is obliged to seek a new authorization, while at the end a second judicial control is held with the parties and any evidence exceeding the authorization is declared unusable.

In his speech, Rama guaranteed that “for corruption, organized crime, terrorism, trafficking, crimes with weapons or serious violence and Special Court cases, special regimes are preserved”. But the text of the draft law shows that in three key provisions only organized crime is exempted from the facilitations, leaving corruption outside the exemption.

Meanwhile, security measures against high officials, including suspension from duty, cannot be taken without notifying the person at least 5 days in advance with the charge and without questioning them.

For time-limited investigations, Articles 65 and 66 of the draft give the suspect the right to ask the judge for “backdating” — that is, setting an earlier date when he should have been registered as a suspect — which brings the retroactive calculation of investigation deadlines and the unusability of evidence obtained before registration.

The draft also foresees that if the court does not decide within 48 hours on the suspect’s request for access to the files, the evidence is automatically given to him, setting disciplinary responsibility for the prosecutor.

The draft also foresees restrictions for the media. Article 10 bans the publication of decisions on security measures, of wiretaps not cited in the decision, of images of persons in handcuffs and of investigative acts until the start of the trial on the merits, and excludes appeals to the Commissioner for Information for these acts. Point 14 requires prior judicial authorization also for documents that journalists already hold. “In the case of third parties and especially journalists, media outlets, who already possess data falling under the regime of this article, they may ask the competent first-instance court for authorization to publish the data… In any case, publication cannot be carried out without judicial authorization,” the draft states.

A former prosecutor told BIRN that the provisions on disciplinary measures and the increased requirements on prosecutors clearly seemed aimed, among other things, at frightening and hindering efforts to investigate corruption.