The police catch drugs, SPAK catches talk…

By Ylli Manjani

Clearly, the real war against drugs in this country has been waged and is being waged by the State Police.

It has caught and catches people with drugs in their hands. It has caught producers, holders, transporters and sellers. It has seized narcotic substances, money, vehicles and other means used in this activity.

That is precisely what a state that wants to fight drugs seriously must do.

The war against drugs on the territory of the Republic of Albania is healthy, necessary and in everyone’s interest. Drugs in schools in particular, and the trade targeting children, is an activity that deserves an uncompromising fight.

In this battle, every real operation against drug dealers deserves support.

But precisely here a very important distinction must be made.

While the police catch drugs and, together with them, their sellers, SPAK fills the news with having caught people on the basis of talk.

While the police catch and fight drugs, SPAK catches talk and fights people.

The Albanian Criminal Code expressly recognises the offence of “Trafficking in narcotics” in Article 283/a. That article provides for the illegal importing, exporting, transiting and trading of narcotics.

But, before making a strong legal accusation, we must also make an important clarification: Albanian law is not absolutely limited only within the territorial borders of Albania.

Article 6 of the Criminal Code, which the socialist majority has paradoxically stretched like elastic, expressly provides that Albanian criminal law may also be applied to an Albanian citizen who commits a crime on the territory of another state, provided, among other things, that the act is simultaneously punishable there as well and that there is no final decision of the foreign court.

So, the problem is not simply jurisdiction.

The bigger problem is how drug trafficking in another state is proved, when that state offers no evidence?!

That is, it is one thing to say that the Albanian state has jurisdiction over an Albanian citizen for an act committed abroad, and quite another to say that every suspicion, every electronic communication or every indication taken from another investigation is enough to build a drug trafficking case.

It is not enough.

A person is not convicted because the investigator believes he has done something.

If an Albanian citizen is suspected of having taken part in international drug trafficking, the state has the right to investigate him, but not to convict him on talk.

The state must prove the concrete act, the concrete role of the person and his concrete connection to that act.

Here legal culture begins.

Not in the conviction that “this person must be guilty”.

Not in the idea that “this conversation must mean drugs”.

Not in the translation of every unclear sentence into an act of trafficking.

And even less in building a criminal charge on electronic materials, when their authenticity, the manner of obtaining them, the identity of the persons who communicated and the context of the communication are themselves the object of serious doubt.

A conversation is not automatically a criminal offence.

A communication is not automatically a transport.

A pseudonym is not automatically a person.

A sentence interpreted by the investigator is not automatically proof of guilt.

A suspicion, however strong, cannot replace the criminal fact.

The Constitution is clear. No one can be declared guilty on the basis of data collected illegally. Just as no one can be convicted of an act that is not expressly provided for by law, and the application of criminal law by analogy is prohibited.

That is the red line.

Albania cannot become the court of the world.

Let us take it even more concretely.

If it is claimed that the drugs set off from Latin America, passed through other countries and entered a European market, the fundamental question is: where concretely was the act committed that is attributed to the person being tried in Albania?

If the answer is that he was not in Albania, did not bring drugs into Albania, did not sell drugs in Albania and performed no material act here, that does not automatically close Albanian jurisdiction, because Article 6 exists. But it makes the argument about what the concrete fact is that links this person to the concrete act much more important.

Why does the state where the criminal damage occurred stay silent?! And why should the silence of the harmed state be a legal cause for our state to attack its own citizen?! What logic is this?! Which other state does this to its own citizens?!

Albania may have jurisdiction in certain cases also for acts committed outside the territory. But that does not mean it can have evidence outside the territory, an act outside the territory, damage outside the territory, and then replace the missing fact with an interpretation of conversations.

The state uses criminal laws in full accordance with its probative power, not with the interpretive power of investigators.

It is precisely at this interpretive power that the deformation of criminal justice begins.

Through interpretations one easily passes from the war against drugs to the war against suspicion.

A serious state should not ask only: “Do we believe this man is a trafficker?”

But it must ask: “What act has this man committed, when, where, with whom, in what manner, and what lawful evidence proves this?”

These are not lawyers’ technical questions. They are the very foundation of criminal justice.

If the investigator’s conviction were enough for us, we would no longer need a court. As has indeed happened to us…

If a communication interpreted as the prosecution wishes is enough, we no longer need evidence.

If an electronic material of disputable origin is enough, we no longer need the standard of authenticity.

And if the fact that a person “looks” like someone who could have trafficked drugs is enough, then we have replaced criminal responsibility for a proven fact with criminal responsibility for a suspected profile.

This is extremely dangerous.

Because today it is done with drugs.

Tomorrow it can be done with another crime. The day after tomorrow, the principle becomes more important than the concrete case, and the state does not convict what it proved he did, but what it believes he might have done.

Albanian courts are not The Hague’s court, judging on international territory.

Damn it, Albanian courts are not universal courts.

They cannot undertake to judge every drug trafficking in the world just because one of the suspected persons is Albanian.

Extraterritorial jurisdiction exists and must be respected where the law provides for it. But that jurisdiction is not a licence to give up evidence, its legality, the link between the person and the act, and the standard of proof.

Even when the act is claimed to have been committed outside Albania, a person must be tried for a concrete criminal fact, not for his reputation, not for the investigator’s suspicion and not for the free interpretation of communications.

Ultimately, this is also the difference between the state that fights drugs and the state that fights the person.

The first catches the drugs, proves the transport, identifies the perpetrator and brings him before justice.

The second starts with the person, then looks for an act to attach to him.

The first is a war against crime. The second is a war against the individual.