Interior Minister Ilir Beqaj has publicly reacted through his legal representative, Ermal Yzeiraj, describing the manner of seizing personal items during investigations as a "procedural trap."
In a statement on social media, Beqaj emphasizes that seizures for evidentiary purposes are typically carried out during the execution of decisions for personal, residential, or other premises checks. According to him, under criminal procedure, the decision authorizing the check cannot be appealed by the person subjected to it.
He argues that this situation allows prosecutors to seize items by relying on a judicial decision that is unappealable, which, in his view, creates legal issues.
For Beqaj, this practice raises a significant constitutional question, questioning whether it aligns with the right to appeal and the guarantee of an effective legal remedy, given that the seizure is based on an act that cannot be contested in court.
In criminal procedure, Checks (Articles 202-207) and Seizures (Articles 208–220) are tools for gathering evidence. But they are not the same thing. Even in the text of the Criminal Procedure Code (CPC), they are in different sections.
The CPC includes these articles for checks and seizures: – Article 202/a (Decision authorizing a check) – Article 207 (Seizure during a check) – Article 208 (Object of seizure) – Article 212 (Appeal of a seizure decision)
Seizures for gathering evidence generally occur during the execution of a decision for a personal, residential, or premises check. According to criminal procedure, the decision authorizing the check cannot be appealed by the person subjected to it.
But even though seizures are regulated as a separate section in the CPC, with the amendments to the CPC in March 2017, seizure is also included under the article on checks. That is, the CPC discusses seizure even before the corresponding section in the CPC. This lacks logic and is not correct legislative technique.
By utilizing seizure during a check, prosecutors do not need to use Article 208.
By not using Article 208, Article 212 is practically rendered unusable. Articles 208 and 212 are both part of the "seizures" section. Article 212 is the procedural guarantee to appeal a decision made under Article 208. Seizures made under Article 208 are appealable under Article 212.
Point 1 of Article 207 states: "Items found during a check shall be seized, provided they are specified in the decision authorizing the check." That is, the check decision is de facto also a seizure decision. So then, what is the purpose of Article 208?
What is this? A pure procedural trap against citizens. Prosecutors seize items with an unappealable decision, such as the check decision.
Let's look at the concrete actions during the execution of a check decision.
During the same check, investigators perform two actions: That is, investigators are not found to have conducted a seizure based on Article 207, point 1. Also, Article 208 of the CPC is not referenced at all in the records kept by investigators.
Under these conditions, Article 212 cannot be activated. Consequently, the person whose items are seized cannot exercise the right to appeal the seizure.
Seizure based on Article 301 of the CPC occurs when the seizure is made under Article 207, point 2 or 3. Points 2 and 3 regulate seizure beyond the specifications of the seizure order's limits. The application of Article 301 should trigger a decision validating the seizure. In criminal case 190/2023, the prosecution argued before the court that there is no need for seizure validation because there is a court decision that authorized the seizure of items. And this is the check decision, which is unappealable. Criminal case 190/2023 is not an isolated case where items are seized through this unlawful procedure.
Procedural law recognizes the right to appeal the seizure of an item, but law enforcement agencies do not provide a concrete act, practically depriving you of the right to appeal. The act to contest is missing.
How long must this injustice be allowed? Both conventional and constitutional.
The procedural traps explained above were approved by the legislator with the amendments to the CPC in March 2017.
FOR DETERMINING THE SCOPE OF STATE RESPONSIBILITY OF THE MINISTRY OF JUSTICE, point 2 states: "The Ministry of Justice is the body responsible for implementing justice policy, seeking respect for the Constitution, laws, realization and protection of dignity, human rights and fundamental freedoms, and contributes to preventing violations of the law, in accordance with and in function of the requirements of democratic development and European integration of the Republic of Albania." The Ministry of Justice must take the initiative as soon as possible to harmonize Checks and Seizures in the EVIDENCE Chapter of the CPC.
The Parliament of Albania must correct the errors included in the CPC in March 2017.
No one should be intimidated by the European Commission, which may declare that justice reform is not affected.
The High Court has addressed this issue. In the jurisprudence of the High Court, there is talk of a Seizure Order. I believe a report cannot be either a decision or a seizure order. Therefore, the Constitutional Court and/or the High Court, based on concrete requests before them, should regulate seizure procedures in general, guaranteeing everyone the rights recognized by the ECHR and the Constitution.
The Constitutional Court should also assess the constitutionality of point 1 of Article 207 of the CPC. This provision allows items specified in the check authorization decision to be seized during the check, while the decision authorizing the check itself, according to the current reading by the courts, is not directly appealable. This raises a constitutional question: Is it in accordance with the right to appeal and the requirement for an effective legal remedy that the seizure of an item is practically based on a judicial act that is unappealable?