Last Thursday, Parliament unanimously (but without the opposition) passed several changes in the Criminal Procedural Code, envisioned by the judicial reform package. One of the changes, however, seems to have very little to do with strengthening the judicial apparatus, but everything with weakening it.
Article 449(2) of the Criminal Procedural Code is as follows:
Verdicts of innocence regarding crimes can be revisited by request of the prosecutor, but under the condition that the verdict has been given not more than 5 years ago.
On December 28, 2016, a draft law was deposited at the Parliament, drafted by the Ministry of Justice in collaboration with the EURALIUS mission of the EU, which supports the government in drafting the legislative framework of the judicial reform. The report that accompanies the draft law makes this explicit: “This project is a product prepared by the Ministry of Justice with the continuous support of EURALIUS.”
The draft law proposed to change the entire article 449 as follows:
In cases and conditions envisioned by this Code and on request, the revisiting of verdicts that have taken a final form is allowed.
In other words, the proposal of the Ministry of Justice and EURALIUS is to scrap the 5 year period and make any criminal case open to retrial at any time, should new and crucial evidence be brought up.
It appears, however, that Parliament did not agree with the Ministry and EURALIUS. The report of the Parliamentary Committee of Legal Affairs proposes to rewrite article 449(2) as follows:
Neither revisiting a verdict of innocence nor revisiting a verdict of punishment when the aim is to worsen the position of the convicted person.
As may be clear this is radically different from the original proposal. Rather than allowing retrial without any time limit based on new and crucial evidence, cf. art. 450(1)(c), the new version of art. 449(2) does not allow a retrial, even with new evidence, if this leads to a higher sentence for the accused.
It is at the moment unclear whether Parliament has voted for the original amendment proposed by the Ministry of Justice and EURALIUS or the very different amendment proposed by the Parliamentary Committee. Exit reached out to several deputies, none of which appears to remember which variant was eventually passed last Thursday.
Let’s assume that the most recent amendment, namely the one proposed by the Parliamentary Committee, is the one that was approved. Rewriting the Criminal Procedural Code in this way will have several highly undesirable effects on the Albanian judicial system.
- It will give an incentive to criminals to admit guilt quickly in order to speed up the judicial process, hoping that further incriminating evidence will not be uncovered. They know that once convicted, they will never receive a higher sentence for the same case, no matter what new evidence is found later.
- It will remove the incentive for new witnesses to come forward after the trial, as their testimony can never bring about a higher sentence.
- It will remove the incentive for prosecutors to reopen cases. If no higher sentence can be achieved, there is no reason to reopen a case after new evidence was found.
- It will weaken the position of judges in cases of bribery. Imagine a situation in which a politician or criminal bribes a judge for a lower sentence. Even if the bribe is discovered later, the politician or criminal can never be retried on the basis that they bribed the judge. The judge, however, can be put on trial for passive bribery. In other words, once a bribe is given, the political or criminal basically holds a particular judge hostage with relative impunity.
In other words, this amendment to the Criminal Procedural Code has closed any opportunity of reopening criminal cases with new evidence, even when the vetting has passed and the judicial system has been supposedly “cleaned up.”
It will also make the judicial apparatus very dependent on the executive branch, namely the Ministry of Interior and the State Police, which often performs the first phase of evidence collection. As cases can never be reopened with new incriminating evidence, prosecutors and judges will have to rely completely on the professionalism of the police, knowing that once closed, a case will hardly ever opened again.
Exit reached out to EURALIUS for an opinion on the amendment. A spokesperson declared that EURALIUS “cannot comment on this matter.”