An historical – comparative overview on the new charges in the albanian criminal procedural legislation
Dr. Kosta GAZELI
If we are to talk about the Albanian criminal procedural legislation we should go back to the period after World War 2 and the liberation of the country since we have not had a criminal procedure code previous to that time. Even during the monarchy, although a general legislative reform was implemented, adjusting the Albanian legislation to the one of advanced European countries, it was not possible to adopt an independent Code of Criminal Procedure, as many other codes were drafted. During the period from the liberation of the country, until 1953, as well as earlier, criminal proceedings have been carried out based on specific organic laws and those of specific procedural character.
Despite the political system that existed, the first Albanian Code of Criminal Procedure is the one of year 1953. Under such circumstances, the historicalcomparative overview of the procedural institute of new charges, according to the Albanian criminal procedural legislation, relies precisely on the Criminal Procedure Codes that have been implemented in the Republic of Albania, and have been drafted or have entered into force in years 1953, 1979, and 1995 respectively.
In the three of these codes, the procedural institute of new charges has been contemplated and applied in the initial investigation phase as well as in the trial.
It is precisely this fact that constitutes one of common characteristics of these three codes.
But regardless of the similitude mentioned between them, these codes, as well as the institute of new charges contemplated by them, in essence, differ greatly between them, especially the Criminal Procedure Code of 1995, which is now in force in our country, with two other previous codes, which were basically similar, but differed in the circumstances and the time they were drafted and entered into force. The main difference of the Code of Criminal Procedure of 1995, which is currently in force in our country, compared with the two previous codes, lies in its deep democratic character. This Code contains important democratic principles and norms of criminal procedure applied in all democratic countries, especially in the most advanced countries of Western Europe and the United States. Its primary sources are the Constitution, the international Conventions and Charters, particularly the Convention on ‘Fundamental Human Rights and Freedoms’.
Although the new charges during criminal proceedings are contemplated by the three criminal procedural codes, their application in the investigation stage and during the trial differs among other things, because of essential differences that exist between the political and social systems, procedural systems and corresponding models selected and contemplated by these codes. In the first two there was the inquisition system whereas in the Criminal Procedure Code in force prevails the accusatory system. Consequently, the sanctioning and implementing of the institute of new charges during the criminal proceedings contemplated by these codes is different, depending on the functions, duties and rights of criminal prosecution bodies, notably the prosecution office and the court, stemming from the relevant procedural systems and the changing of
What is characteristic is that during the investigation phase, the change of prosecution, as in the case when new charges arise after the communication of the decision to take a person as the defendant and also the case when the charge communicated by this decision changes according to a new legal qualification that can be more severe or less severe, in compliance with the three codes of criminal procedure, had been performed by the prosecution body or of the prosecutor.
While in the trial stage, the announcement of a new charge or the changing of the defendant’s charge according to the Criminal Procedure
Codes 1953 and 1979, was to be made by the court, which was also considered as a body of criminal prosecution, whereas according to the Code of Criminal Procedure of 1995, which is in force in our country, that should be made by the prosecutor even during the preliminary investigations.
With respect to the court it has the right to change the legal qualification of the offense for which the defendant is charged only on the final decision.