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GENERAL PROVISIONS
Article 1
Role of criminal procedural legislation
1. The main role of criminal procedural
legislation is to provide a fair, equal and due legal process,
to protect the individuals' freedoms, the rights and the legal
interests of the citizens, to contribute to the strengthening
of the rule of law and to the application of the Constitution
and laws ruling the country.
Article 2
Respectability of procedural provisions
1. The procedural provisions define
the rules of the carrying on of criminal proceedings, investigations
and the trying of criminal offences as well as the execution of
the criminal sentences. These rules shall be compulsory for the
subjects of the criminal proceedings, state authorities and citizens.
Article 3
Independence of the court
1. The court is independent and
renders decisions in conformity to the law.
2. The court renders decisions
upon evidence examined and revealed in the hearing.
Article 4
Presumption of innocence
1. The defendant shall be presumed
innocent unless his guilt is proven by a final court sentence.
Any uncertainty related to the accusation shall be considered
in the favour of the defendant.
Article 5
Restrictions to an individual's
liberty
1. The liberty of an individual
may be restricted by means of precautionary measures only in cases
and forms provided by law.
2. No one may be subjected to
torture, punishment or cruel treatment.
3. A person sentenced to imprisonment
shall be provided human treatment and moral rehabilitation.
Article 6
Provision of defence
1. A defendant is entitled to
self defence or to defence by a defence lawyer. In case of insufficient
means, he shall be provided legal aid.
2. A defence lawyer shall assist
the defendant to have all procedural rights guaranteed and his
legitimate interests protected.
Article 7
Prohibition of retrying the same
offence
1. No one may be tried again for
the same criminal offence for which he has been tried by a final
sentence, except when the competent court has decided the re-trial
of the case.
Article 8
Use of albanian language
1. In all stages of the proceedings
the albanian language shall be used.
2. Persons who do not know albanian
shall use their mother tongue and, by assistance of an interpreter,
enjoy the right to speak and to be informed of the evidence and
acts and of the conduct of the proceedings.
Article 9
Reinstatement of the rights
1. Individuals who are proceeded
against the law or who are convicted unfairly shall have their
rights reinstated and shall be compensated for the injury undergone.
Article 10
Application of international conventions
1. The relations with foreign
authorities in criminal matters shall be governed by international
conventions recognized by the Albanian government, by generally
admitted principles and standards of international public law
and also by the provisions of this code.
F I R S T P A R T
TITLE I
S U B J E C T S
CHAPTER I
The Court
Section I
Competency and composition of the
courts
Article 11
Competency of the court
1. The court is the organ which provides justice.
2. No one may be found guilty and be convicted
for the commission of a criminal offence without a court sentence.
Article 12
Criminal Courts
The criminal justice is provided
by:
a) the
first instance criminal courts;
b) the
courts of appeal;
c) the
Court of Cassation.
Article 13
First instance criminal courts
and their composition
1. Criminal offences are tried,
in the first instance, by the district and military courts, in
panel, in conformity to the rules provided by this code.
2. The district and the military
courts try in panel consisting of three judges, when crimes are
involved, and by a judge and two assistant judges when criminal
contraventions are involved. The trial for juveniles is held by
judges who are qualified for these trials and who has been especially
and additionally assigned this task.
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Article 14
The courts of appeal and their
composition
1. The civil court of appeal tries,
in second instance, by three judges, the cases tried by the district
courts.
2. The military court of appeal
tries, in the second instance, by three judges, the cases tried
by the military courts.
SECTION II
INCOMPATIBILITY WITH THE FUNCTION OF A
JUDGE IN TRIAL
Article 15
Incompatibility due to participation
in the proceedings.
1. The judge who has rendered
or has participated to the rendering of the decision in one of
the instances of the proceedings may not exercise the functions
of a judge in other ones and may not participate in a retrial
in case of annulment of the decision.
2. It may not participate to a
trial the judge who has assessed the precautionary measures or
any other request of the prosecutor presented during the preliminary
investigation of the same proceedings.
3. The one who has exercised the
functions of the prosecutor or has conducted operations of the
judicial police or has been a defence lawyer, an attorney of one
of the parties or a witness, expert or has presented an information,
complaint, request for proceedings or has rendered or participated
to the rendering of the decision authorizing the initiation of
an action may not exercise the function of a judge in the same
proceedings.
Article 16
Incompatibility due to family,
blood or in-law relation
1.There may not participate as
judges in the same proceedings the persons who, amongst them or
with the participants in the trial, are spouses, close blood relatives
( antecedents, descendants, sisters, brothers, uncles, aunts,
nephews, nieces, children of sisters and brothers) or close affinity(mother-
in- law, father-in-law, son- in-law, daughter -in-law, sister-in-law
, brother-in-law, godfather, godmother, stepmother, stepfather)
Article 17
Resignation
1. A judge has to resign from
a concrete case:
a) when
he has an interest in the proceedings or when one of the private
parties or a defence lawyer is a debtor or creditor of his, of
his spouse or of his children;
b) when
he is a tutor, an attorney or an employer of the defendant or
of one of the private parties or when the defence lawyer or the
attorney of one of these parties is a close relative of his or
of his spouse;
c) when
he has provided any advise or has expressed any opinion about
the proceedings in question;
d) when
disputes between him, his spouse or any of his close relatives
with the defendant or one of the private parties exist;
e) when
any of his own or his spouse's relatives has been impaired or
injured from the criminal offence;
f) when
any of his relatives or of his spouse is exercising or has exercised
the functions of the prosecutor in a proceedings;
g) when
he is under one of the conditions of incompatibility provided
by articles 15 and16 and
h) when
other important reasons of partiallity exist.
2.The statement of resignation
shall be submitted to the president of the respective court.
Article 18
Challenge of the judge
1. The parties may ask the challenge
of the judge:
a) in
cases provided by article 15, 16 and 17;
b) when
during the exercise of the functions and before the decision is
rendered he has given his opinion about the facts or circumstances
subject to proceedings.
2. The judge may not make or participate
in the making of a decision until the decisa decision unaccepting
or rejecting the challenge is made.
Article 19
Time-limits and forms of challenge
1. The request challenging the
judge is presented in the audience immediately after the legitimation
of the parties.
2. In case the cause for challenge
is found while the legitimation of the parties has expired, the
request must be presented within three days from the observation.
In case the cause has come about or has been observed during the
audience, the request of challenge must be presented before the
closure of the hearing.
3. The request comprises the causes
and the evidence and it is submitted in writing. It is presented
to the secretary of the competent court along with the other documents.
A copy of the request is handed to the judge subject to challenge.
4. If the parties do not submit
the request personally, then it may be submitted by the defence
lawyer or an authorised attorney. The power of attorney must explain
the reasons of the challenge, otherwise it shall not be accepted.
Article 20
Competition between resignation
and challenge
1. Request for challenge is deemed
null and void in case the judge even after its submission announces
his renouncement and this is approved.
Article 21
Competency to decide on the challenge
1. The request for the challenge
of the judge of district court, military court or court for serious
crimes is under discretion of the court of appeal; the one for
a judge of the court of appeal is under discretion of a college
of the same court, provided that the judge under challenge is
not a member of this one.
The decision may be appealed.
2. The request for challenge of
a judge of the Court of Cassation is under discretion of a college
of this court, provided that the judge under challenge is not
a member of this one. The decision is final.
3. The request for challenge of
judges appointed to decide upon challenge shall be not accepted.
Article 22
Decision regarding request for
challenge
1.In case the request for challenge
is submitted by someone who was not entitled to this right or
without respecting the time-limits or forms provided by article
20 or when the causes are not grounded on the law, the court that
examines the request is entitled to not accept it by rendering
a decision.
2.The court may suspend temporarily
any procedural conduct or impose restrictions in urgent operations.
3.After collecting the necessary
data the court decides upon request for challenge.
4.The decision rendered under
the paragraphs hereto shall be notified to the judge under request
for challenge, to the prosecutor, to the defendant and to the
private parties. The decision may be appealed to the Court of
Cassation.
Article 23
Provisions when the statement of
resignation and the request for challenge are accepted.
1. In case the resignation and
the request for challenge are accepted the said judge may not
complete any proceeding operations.
2. The act accepting the statement
of resignation or the request for challenge shall consider whether
the operations previously performed by the judge subject to resignation
or challenge are valid and at what an extent the validity stands.
3. The provisions regarding resignation
and challenge of the judge shall also apply to the secretary of
audience and to the persons appointed to make transcriptions or
phonographic or audio-visual reproduction. Their resignation or
challenge is under discretion of the court trying the case.
C H A P T E R I I
P R O S E C U T O R
Article 24
Functions of the prosecutor
1. The prosecutor conducts the
criminal prosecution, carries on investigations, controls the
preliminary investigations, brings accusation before the courts
and represents it in conformity with the rules provided by this
Code. The orders and instructions of the superior prosecutor are
compulsory to the inferior prosecutor.
2. The prosecutor has the discretion
to decide whether to not initiate or dismiss the criminal actions
in cases provided by this code.
3. In case no lawsuit or authorization
to proceed is required, the criminal prosecution can be exercised
ex-ufficio.
4. The orders and instructions
of a superior prosecutor are compulsory for the inferior prosecutor.
Article 25
Exercise of the functions of prosecutor
1. The function of the prosecutor
shall be exercised :
a) during
the preliminary investigations and during the trials of the first
instance- by the prosecutors in the first instance courts;
b) during
the trials of appealed cases- by the prosecutors in the courts
of appeal and in the Court of Cassation.
2. The superior Prosecutor is
entitled to exercise the competency of the inferior prosecutor.
3. Prosecutor is independent in
exercising his functions in the hearing.
Article 26
Resignation of the prosecutor
1. The prosecutor must resign
when there are reasons of partiallity as provided by article 17.
2. The statement of resignation
is subject to decision of the chief prosecutor in the first instance
court, of the chief prosecutor in the court of appeal and the
Attorney General, as per rank order. For the chief prosecutors
the decision is rendered by the superior chief prosecutors.
3. The decision accepting the
statement of resignation shall provide the replacement of the
resigned prosecutor by another prosecutor.
Article 27
Cases of replacement of the prosecutor
1. The chief prosecutor shall
decide the replacement of the prosecutor when there are serious
reasons related to the function and also in cases provided by
Article 17, Paragraph 1, Letters " a,b,d and e". In
other cases the prosecutor shall be substituted only with his
consent.
2. In case the chief of the prosecution
office does not decide even though there are cases provided by
Paragraph 1, the substitute prosecutor is ordered by the Attorney
General.
3. The rules provided for the
renouncement and the substitution of the prosecutor shall also
apply to the officer of the judicial police.
Article 28
The transfer of acts to another
prosecution office
1. When during the preliminary
investigations the prosecutor considers that the criminal offence
is under the competence of a court different from that in which
he exercises his functions, he shall immediately transfer the
acts to the prosecution office in the competent court.
2. In case the prosecutor considers
that the prosecution office to proceed is the one which has transferred
the acts, he shall inform the Attorney General who, after examining
the acts, shall determine which prosecution office must proceed
and shall notify the concerned prosecution offices.
3. Investigation made before the
transfer or the determination made in accordance with the paragraph
1 and 2 shall be valid and may be used in cases and forms provided
by law.
Article 29
The requesting of the acts from
another prosecution office
1. When a prosecutor is informed
that in another prosecution office preliminary investigations
are simultaneously being performed against the same charged person
and for the same fact, related with the one he is proceeding for,
he shall immediately inform that prosecution office, requesting
the delivery of the acts.
2. If the prosecutor who has received
the request does not agree with it, he shall inform the Attorney
General who, after having received the necessary data shall decide,
in conformity to the rules applicable to court competency, which
of the prosecution offices must proceed and notifies the interested
prosecution offices. The assigned prosecution office shall be
immediately sent the acts from the other prosecution office.
3. The acts of the preliminary
investigations, carried on by various prosecution offices shall
be used in cases and forms provided by law.
C H A P T E R III
JUDICIAL POLICE
Article 30
Functions of the judicial police
1. The judicial police, even ex-
officio, must become aware of the criminal offences, in order
to prevent ulterior consequences, to search for their authors,
to carry on investigations and to collect everything which contributes
to the application of the criminal law.
2. The judicial police carries
on any investigation operations which are assigned or delegated
by the prosecutor.
3. The functions provided by paragraphs
1 and 2 are carried on by the officers and the agents of the judicial
police.
Article 31
Services and sections of the judicial
police
1. The functions of the judicial
police shall be carried on:
a. By
the officers and the agents of the judicial police pertaining
to the organs entitled by the law to carry on investigations from
the moment they are informed a criminal offence has been committed;
b. By
the sections of the judicial police set up in any district prosecution
office and consisting of a personnel of the judicial police;
c. By
the services of the judicial police provided by law.
Article 32
Officers and agents of the judicial
police
1. There are officers of the judicial
police:
a. The
chiefs, inspectors and other members of the Police of the Ministry
of Interior, who are recognized this capacity by the law;
b. The
officers of the Military Police, Financial Police, Forestal Police
and any other police forces recognised by law who are recognized
such a capacity by the law
2. There are agents of the judicial
police:
a. The
personnel of the Police of the Ministry of Interior, who are recognised
such a capacity by the law ;
b. The
personnel of the Military Police, Financial Police and of any
other police recognised by law, when on duty.
3. There are also officers and
agents of the judicial police, within the competencies of the
service they have been given and in accordance with the respective
attributes, the persons who are recognised by law the functions
provided by article 31.
Article 33
Subordination of the judicial police
1. The sections of the judicial
police are subordinated by the chiefs of the district prosecution
offices.
2. The officer of the judicial
police is responsible before the district prosecutor for the activity
carried on by himself or his subordinates.
3. The officers and the agents
of the judicial police are obliged to carry on the tasks. The
members of the sections may not be removed from the activity of
the judicial police without the approval of the Attorney General.
4. The personnel of the sections
are available to the courts and the prosecution offices which
may use also any services of the judicial police.
C H A P T E R I V
THE DEFENDANT
Article 34
Becoming a defendant
1. A defendant shall become the person who has
been charged a criminal offence by the act of notification of
accusation which must give sufficient evidence to be held as a
defendant. This act must be notified to the defendant and to his
defence lawyer.
2.The status of the defendant shall be retained
at any stage and instant of the proceedings until the decision
of the cessation, acquittal or punishment becomes final.
3. The status of the defendant shall be renewed
when the decision of the cessation is rendered null and void or
when a retrial shall be decided.
Article 35
Assistance provided to the juvenile
defendant
1. The juvenile defendant shall be provided legal
and psychological assistance at any stage and instance of the
proceedings by the presents of the parents or other persons requested
by a juvenile and accepted by the proceeding.
Authority.
2. The proceeding authority may carry on actions
and compile acts for which is required the participation of the
juvenile without the presence of the persons indicated in the
paragraph 1 only when this is in the interest of the juvenile
or when the delay may impair seriously the proceedings, but always
in the presence of the defence lawyer.
Article 36
Prohibition to use the statements
of the defendant as testimony
1.The statements made by the defendant during
the proceedings may not be used as testimony.
Article 37
Self-incriminating statements
1. When a person not being held as defendant,
before the proceeding authorities, makes self- incriminating statements,
then the proceeding authority interrupts the interrogation forewarning
him that after these statements there may be initiated investigation
against him and invites him to appoint a defence lawyer. The previous
statements may not be used against the person who has made them.
Article 38
General rules applying to interrogation
1. Even when isolated by precautionary measures
or when deprived from liberty for any other cause, the defendant
shall be interrogated in a free state, except when necessary to
take measures to prevent the escape or violation.
2. It may not be used, even with the consent of
the person under interrogation, methods or technics to influence
upon the free willingness or to modify the capacity of the memory
related to the evaluation of the facts.
3. Before the interrogation starts the defendant
is explained his right to silence and that even if he fails to
speak, the proceedings shall continue the same.
Article 39
The interrogation on merits
1. The proceeding authority explains to the defendant,
clearly and in detail, the fact which has been attributed, makes
him familiar with the evidence against him and , when the investigations
are not impaired, indicates their sources.
2. The proceeding authority invites him to explain
everything helpful for his defence and interrogates him face to
face.
3. When the defendant refuses to respond, this
shall be noted in the minutes. In the minutes shall be also noted,
when necessary, the physical features and eventual specific marks.
Article 40
Revelation of personal identity
of the defendant
1. As the defendant appears, the proceeding authority
invites him to state the personal data and anything else which
may be useful to his identification, forewarning him for the consequences
to the one who refuses to give his personal data or gives false
ones, except when this statement implies self culpability.
2. Failure to attribute the defendant his real
personal data shall not hinder the carrying on of actions from
the proceeding authority, when the physical identity of the person
is certain .
3.Wrong personal data attributed to the defendant
are corrected by decision of the proceeding authority.
Article 41
Verification of the age of the
defendant
1. In any stage and instance of the proceedings,
when there are reasons to believe that the defendant is a juvenile,
the proceeding authority makes the necessary verifications and,
if necessary, orders the expertise.
2.When even after the verification and the expertise
there are still doubts regarding the age of the defendant it is
presumed that he is a juvenile.
Article 42
Verifications on the personality
of the defendant juvenile
1. The proceeding authority collects information
on the personal , familiar and social life conditions of the defendant
juvenile intending to reveal the responsibility and its extent
to evaluate the social importance of the fact and also to impose
suitable criminal measures.
2. The proceeding authority collect information
from persons who have had relations with the juvenile and hears
the opinion of the experts.
Article 43
Verifications on the responsibility
of the defendant
1.When there are reasons to believe that due to
mental sickness caused after the occurrence the defendant is not
able to participate consciously in the proceedings, the court
shall order, even ex-officio, the expertise.
2. During the expertise is continuing, the court,
upon request of the defence lawyer, assumes the evidence which
may lead to the innocence of the defendant and, when the delay
brings danger, any other evidence requested by the parties.
3. When the necessity of the definition of the
responsibility arises during the preliminary investigations the
expertise is ordered by the prosecutor, ex-ufficio or upon request
of the defendant or his defence lawyer. Meanwhile, the prosecutors
carries on only the actions which do not require the conscious
participation of the defendant. When the delay brings danger,
there may be assumed evidence only in cases provided for the incident
of the proof.
Article 44
The suspension of the proceedings
due to irresponsibility of the defendant
1.When it results that the mental conditions of
the defendant hinders his conscious participation in the proceedings,
the proceeding organ decides the suspension of the proceedings,
but still when it must not be decided the acquittal or cessation.
By the decision of the suspension the proceeding authority appoints
a special tutor to the defendant, who are given the rights of
a legal attorney.
2. The decision of the suspension is subject to
appeal in the Court of Cassation from by the prosecutor the defendant
or his defence lawyer.
3. The suspension does not hinder the proceeding
authority to acquire evidence which may lead to the acquittal
of the defendant and, when the delay brings danger, any other
evidence requested by the parties. In the actions which must be
carried on about the personality of the defendant and also in
those that the defendant is entitled to be present his special
tutor shall participate.
Article 45
Revocation of the decision of suspension
1. The decision of suspension is revoked when
it results that the mental condition of the defendant allows his
conscious participation in the proceedings or when the defendant
must be found innocent or the case must be ceased.
Article 46
Compulsory medical measures
1.In any case that the mental condition of the
defendant indicates that he must treated, the court decides, even
ex-officio, the hospitalisation of the defendant in a psychiatric
institution.
2. When it is decided or it must be decided the
compulsory medical measure for the defendant, the court orders
that the defendant is preserved in the psychiatric institution.
3. During the preliminary investigation the prosecutor
asks from the court to decide the hospitalisation of the defendant
in a psychiatric institution and, when the delay brings danger,
orders the temporary hospitalisation until the court renders the
decision.
Article 47
The death of the defendant
1. When it results the death of the defendant
the proceeding authority in any stage and instance of the proceeding,
after hearing the defence lawyer decides the cessation of the
case.
2.The decision does not hinder the exercise of
the prosecution for the same fact and against the same person
when after it is proven that he has not died.
C H A P T E R V
THE DEFENCE LAWYER OF THE DEFENDANT
Article 48
The defence lawyer chosen by the
defendant
1. The defendant has the right to chose not more
than two defence lawyers.
2. The selection is made by a statement before
the proceeding authority or by an act delivered to the defence
lawyer or mailed to him by registered letter.
3. The selection of the defence lawyer for the
detained, arrested or imprisoned person, unless he has made the
selection , may be provided by a relative in forms provided by
paragraph 2.
Article 49
The appointed defence lawyer
1.The defendant who has not selected a defence
lawyer or who has remained without him shall be assisted by a
defence lawyer appointed by the proceeding organ if he requires
him.
2. When the defendant is under eighteen years
old or with psychic or physical defects unabling him to self defence,
the assistance of a defence lawyer is compulsory.
3. The board of the bar chamber shall make available
to the proceeding authorities the lists of the lawyers and sets
up the criteria of their appointment.
4. The court, the prosecutor and the judicial
police when must carry on operations requiring the assistance
of the defence lawyer or the defendant has not got any, shall
notify the appointed defence lawyer the operations in question.
5. When the presence of the defence lawyer is
required and the selected or appointed defence lawyer has not
been provided, has not been presented or has abandoned the defence
the court or the prosecutor appoints another lawyer as substitute,
who shall exercise the rights and shall assume the obligations
of the defence lawyer.
6. The appointed defence lawyer may be substituted
only for lawful reasons. He shall loose the functions when the
defendant shall select his defence lawyer.
7. When the defendant does not have sufficient
income the expenses for the defence shall be covered by the state.
Article 50
Extension of the rights of the
defendant to the defence lawyer.
1. The defence lawyer has the rights the law recognises
the defendant, except those reserved personally to this latter.
2. The defence lawyer has the right to freely
and face to face communicate with the detained, arrested or the
punished, to be notified beforehand for the carring on of the
investigations where the defendant is present and to participate
in them, to ask questions to the defendant, witnesses and experts,
to get familiar with all the materials of the case on termination
of the investigations.
3.The defendant may render null and void, by expressed
statement, the action carried on by the defence lawyer before
a decision is rendered by the court in relation to this action.
Article 51
Substitution of the defence lawyer
1.The defence lawyer, in case of hindrance and
as long as it exists, with the consent of the defendant, may appoint
a substitute.
2. The substitute shall exercise the rights and
shall assume the obligations of the defence lawyer.
Article 52
The guarantees of the defence lawyer
1. The inspection and searches in the office of
the defence lawyer are permitted only:
a) when he or other persons
who continuously work in the same office are defendant and only
with intention to prove the criminal offence attributed to them;
b) to search the traces
or the material proofs of the criminal offence or to search for
belongings or persons provided by specific rules.
2. Before inspecting, searching or sequestring
in the office of the defence lawyer the proceeding authorities
inform the board of bar chamber in order that one of his members
is able to be present during the operations.
In any case a copy of the act is send to the board
of the bar chamber.
3. The searches, inspections and sequestration
in the office of the defence lawyers are made personally by the
judge, whereas during the preliminary investigations they are
made by the prosecutor provided with an authorising decision of
the judge.
4. There is not permitted the interception of
the conversations or communication of the defence lawyers and
their assistants neither between each other nor with their clients.
5. It is prohibited any form of control of the
correspondence between the defendant and his defence lawyer.
6. The results of the searches, inspections, sequestration,
interceptions of conversation or communication made in violation
of the above provisions, except as provided by paragraph 2, may
not be used.
Article 53
Conversation of the defence lawyer
with the detained defendant
1. The person arrested in the commission or the
detained has the right to consult his defence lawyer immediately
after the arrest or the detention.
2. The detained defendant has the right to consult
his defence lawyer since the moment of the execution of the precautionary
measure.
Article 54
The defence of several defendants
by a defence lawyer
1. The defence of several defendant may be undertaken
by a common defence lawyer provided that amongst the defendant
there are no conflicts of interests.
2. The proceeding authority when ascertains conflict
of interest of the defendants states it by means of a decision
and makes the necessary substitution.
Article 55
Refusal, renouncement or revocation of the defence
lawyer
1.The defence lawyer who does not accept the task
he has been trusted or renounces, notifies immediately the proceeding
authority and the one who has appointed.
2. Refusal is effective from the moment when it
is communicated to the proceeding authority.
3.The renouncement does not have effect until
the party is assisted with a reliant new lawyer or with a lawyer
appointed ex-ufficio and until the time limit which might have
been fixed to the substitute lawyer to get familiar with the acts
and the evidence has expired.
4.The provision of the paragraph 3 shall also
apply to the revocation.
5. The renouncement of the attorney of the plaintiff
and the civilly sued person shall not in any case hinder the continuation
of the proceedings.
Article 56
The responsibility in case of abandonment or refusal
of the defence
1. The proceeding authority informs the board
of the bar chamber the cases of abandonment, refusal of the defence
and the violation of the reliance.
2. The board of the bar chamber has the right
to impose disciplinary measures in case of abandonment or refusal
of the defence appointed ex-ufficio.
3. When the board considers the abandonment or
the refusal justified because of violations of the rights of the
defence, the disciplinary measure shall not be imposed even if
the violation of the defence is not recognized by the court.
Article 57
The time-limit provided to the substitute defence
lawyer
1. In cases of renouncement, revocation and conflict
of interests of the defendants, the new lawyer of the defendant
or the one appointed as substitute shall be provided an adequate
time to get familiar with the acts and evidence.
C H A P T E R V I
THE INJURED, PLAINTIFF AND CIVILLY
SUED
Article 58
The rights of the person injured
by the criminal offence
1.The person injured by the criminal offences
or his successors have the right to ask the prosecution of the
guilty and the compensation of the damage.
2. The injured person who does not have legal
capacity shall exercise the rights recognized by law through his
legal attorney.
Article 59
The injured accuser
1. The one who is injured by criminal offences
provided by articles 90, 91, 92, 112/1, 119, 120, 121, 122, 125,
127, 148, 149 and 254 of the Criminal Code has the right to submit
a request to the court and to participate in the trial as a party
to prove the accusation and to ask for the compensation of the
damage.
2. The prosecutor participates in the trial of
these cases and, accordingly, demands the punishment of the defendant
or his innocence.
Article 60
The request of the injured accuser
1.The request for trial made by the injured accuser
shall be deposited in the secretary of the court and must comprise,
by consequence of objection:
a) the personal data of the injured accused
b) the personal data of the accused person
c) the name and the family name of the attorney
and the power of attorney
d) exposition of the reasons that motivate the
request
e) The signing by the injured accuser or his attorney
2. The request must be notified to the person
who is attributed the criminal offence.
Article 61
The lawsuit in the criminal proceedings
1. The one who has undergone material damage by
the criminal offence or his successors may bring a civil lawsuit
in the criminal proceedings against the defendant of the civilly
sued to ask for the restitution of the property and the compensation
of the damage.
Article 62
The time-limit for the constituency
of the civil plaintiff
1. The constituency of the civil plaintiff may
be made by the proceeding authority until the judicial examination
has not started.
2. The time-limit provided by paragraph 1 may
not be prolonged.
Article 63
The guarantee of the civil lawsuit
1. In order to guarantee the restitution of the
property and the compensation of the damage, upon request of the
civil plaintiff, the proceeding authority may impose the sequestration
of the property of the defendant of the civilly sued. This measure
shall retain until the termination of the case.
Article 64
Renouncement from the judgement
of the civil lawsuit
1. The renouncement from the judgement of the
civil lawsuit may be made in any stage and instance of the proceedings
by means of a statement made personally by the plaintiff or by
his attorney in the sitting or through a written act deposited
in the secretary of the court and notified to the other parties.
2. In case the civil plaintiff does not presents
the conclusions in the final discussion or when brings a lawsuit
before the civil court it is deemed that he has renounced from
the judgement of the civil lawsuit.
3. When there is a renouncement from the judgement
of the lawsuit as provided by article 1 and 2, the criminal court
may not recognize the expenses and damage caused to the defendant
and to the sued from the intervention of the civil plaintiff.
The lawsuit for the indemnification and disbursement may be brought
before the civil court.
4. The renouncement does not hinder the bringing
of the lawsuit before the civil court.
Article 65
The summons of the civilly sued
1. The one who is civilly responsible for the
offence committed by the defendant may be summoned in the criminal
proceedings upon request of the civil plaintiff. The defendant
who has been acquitted or whose case has been ceased may be summoned
as civilly sued for the offences of the other co-defendants.
2. The request for the summons of the civilly
sued must be made before the start of court examination.
3. The summons is ordered by a writ of the court.
Article 66
The voluntary intervention of the
civil plaintiff
1. When it is made the constituency of the civil
plaintiff, the civilly sued, by written request, may intervene
voluntarily into the proceedings until the judicial review has
not started. The court shall decide upon the request after hearing
the parties.
2. The time-limit provided by paragraph 1 may
not be prolonged.
3. The intervention of the civilly suit shall
loose the effects in case of renouncement from the judgement of
the civil lawsuit.
Article 67
The attorney of the private parties
1. The injured accuser, the civil plaintiff and
the civilly sued have the right to be represented in the proceedings
through an attorney provided with a power of attorney.
2. The address of the injured accuser, plaintiff
and the civilly sued is deemed, to any procedural effect, to be
that of the attorney.
3. The attorney, in case of hindrance and as long
as it lasts, with the consent of the represented person, may appoint
a substitute.
Article 68
The provision of the civil lawsuit
1. The court, as the case may be, accepts entirely
or partly the civil lawsuit or rejects it.
2. When the decision of acquittal is rendered
because the fact is not provided as a criminal offence or when
the criminal case is ceased by a decision, the civil lawsuit shall
remain unexamined.
3. When the civil lawsuit in the criminal proceedings
is rejected it may not be brought again before the civil court.
T I T L E I I
JURISDICTION AND COMPETENCY
C H A P T E R O N E
J U R I S D I C T I O N
Article 69
Criminal jurisdiction
1. Criminal jurisdiction is exercised from the
criminal courts under the rules provided by this code.
2. The criminal court examines everything which
is necessary to make a decision and it decides under the rules
provided by law.
Article 70
Effects of the criminal decision
to civil and administrative judgement
1. A final criminal decision is compulsory for
the court examining the civil consequences of the offence only
regarding the fact whether the criminal offence has been committed
and whether it is committed by the tried person.
2. The criminal decision occasionally resolving
a fact connected with a civil, administrative or criminal case
shall not have a compulsory effect in any other trial.
Article 71
Consequences of civil and administrative
proceedings to the criminal proceedings
1.The final civil decision is compulsory for the
court trying the criminal case only regarding the fact whether
the offence has occurred or not, but not what concerns the guilt
of the defendant.
2.When the criminal decision depends on the solution
of a dispute regarding the family status or the citizenship for
which a proceedings before the competent court has started, the
criminal court may decide even ex-ufficio the suspension of the
judicial examination until the dispute is resolved by a final
decision. The suspension does not hinder the carrying out of the
urgent actions.
Article 72
Absence of jurisdiction
1. The question of absence of jurisdiction is
raised, even ex-ufficio, in any stage and instance of the trial.
The court renders a decision and, when the case
is, orders the transfer of the acts to the competent authority.
2. When the absence of jurisdiction is raised
during the preliminary investigations the proceeding prosecutor
shall decide the transfer of the acts to the competent court in
order that this decides.
Article 73
Disputes regarding jurisdiction
1. When there are disputes regarding jurisdiction,
the court which raises them renders a decision transferring them
along with the copy of the acts necessary for its solution to
the Court of Cassation, indicating the parties and the defence
lawyers.
2. There shall apply the provisions of the section
IV of the chapter II of this title.
C H A P T E R II
C O M P E T E N C I E S
SECTION I
Substantial competency
Article 74
The competencies of the district
court
1. The district court is competent to try the
criminal offences except those which are under the competency
of the military court.
2. For cases under his competency the judge shall
observe all of the rules this code provides for the court.
Article 75
The competencies of the military
court
1. The military court tries the military men for
military criminal offences, war prisoners or other persons provided
by law.
S E C T I O N I I
TERRITORIAL COMPETENCY
Article 76
General rules
1. The territorial competency is determinated,
orderly, by the place where the criminal offence has been committed
or attempted or by the place where the consequence has come about.
2. In case the place indicated in the paragraph
1 is not known, the competency belongs, orderly, to the court
of the residing place or the domicile of the defendant.
3. If even this way it may not be determined,
the competency shall belong to the court of the place where the
prosecution office which has been the first to register the criminal
offence is located.
4. The rules provided by the paragraphs hereinof
shall also apply during the preliminary investigations.
Article 77
The competency for criminal offences
committed abroad
1. In case the criminal offence has been entirely
committed abroad the competency shall be determined, orderly,
by the residing place, domicile, the place of arrest or of the
surrender of the defendant. When there are many defendants, then
it shall proceed the court which is competent for their majority.
2. In case the competency may not be determined
by the rules indicated in the paragraph 1, it shall belong to
the court of the place where the prosecution office which has
been the first to register the criminal offence is located.
3. In case the criminal offence is partly committed
abroad, the competencies shall be determined under the general
rules of the territorial competency.
Article 78
The competency to proceed judges
and prosecutors
1. The proceedings in which a judge or a prosecutor
becomes defendant or injured from the criminal offence which,
according to the rules of this chapter would be within the competency
of a court of a district where the judge or the prosecutor exercises
their functions or did exercise in the moment of the occurrence
shall be under the competency of the court which has the substantial
competency and which is located in the centre of another neighbouring
district, except when in this district the judge or the prosecutor
has come after to exercise his functions. In the last case the
competent shall be the court of another district nearer it, in
which the judge or the prosecutor did exercise the functions in
the moment of the commission of the criminal offence.
S E C T I O N I I I
COMPETENCY DUE TO JOINDER OF CONNECTED
PROCEEDINGS
Article 79
Cases of the joinder of the proceedings
1.There is a joinder of the proceedings when:
a) the criminal offence under the proceedings
has been committed by several persons in co-operation amongst
them or when several persons independently have committed it.
b) a person is accused for several offences committed
by a single commission or omission or for some commissions or
omissions to achieve a single criminal intention.
c) a person is accused for several offences, some
of which committed to commit or to hide the others or to provide
unlawful profits or failure of punishment to the guilty or to
the others.
Article 80
Joinder of proceedings which are
under the competency of different courts.
1. In case some of proceedings connected amongst
them are under the competency of a civil court whereas the others
under the military court, competent court for all of them is the
latter.
Article 81
Limits of a joinder in case of
criminal offences committed by juveniles
1. When some of the proceedings connected amongst
them are under the competence of ordinary court whereas the others
under the court that tries cases when juveniles are involved competent
for all of the proceedings shall be the latter, except for cases
when prosecutor and the court consider that they must be separate.
2. When at the time of the trial the defendant
is an adult, but one or several offences have been committed by
him when he was a juvenile, the case shall be tried by the court
handling cases with juveniles.
Article 82
Territorial competency specified
by the connection of the proceedings
1. Territorial competence for connected proceedings,
for which several courts have the same substantial competence,
belongs to the competent court for the most serious criminal offence
and if the offences are equally serious, to the competent court
for the offence recorded the first.
2. Crimes are considered more serious than contravention.
Amongst the crimes or amongst the contravention shall be considered
as most serious the criminal offence for which is provided a longer
maximal punishment or, when the maximums are equal, the longer
minimum punishment. In case there are provided punishments to
imprisonment and to fine, the punishment to fine shall be considered
only when the punishments to imprisonment are equal.
S E C T I O N I V
DISPOSITIONS DUE TO INCOMPETENCY
Article 83
Incompetency
1. Substantial incompetence is raised, even ex-officio,
in any stage and instance of the proceedings.
2. Territorial incompetence and that deriving
from the joinder of the proceedings due to a connection may be
raised or rejected only before the judicial review has started.
Article 84
Incompetency announced during the
preliminary investigations
1. When during the preliminary investigations
or at their termination the prosecutor ascertains his incompetency
for any reasons, he decides the transfer of the acts to the prosecutor
in the competent court.
Article 85
Incompetency declared in the first
instance trial
1. If in the first instance trial the court considers
that the proceedings is under the competency of another court,
it shall declare its incompetence for any reasons by decision
and shall order the transfer of the acts to the competent court.
Article 86
The decision of the court of appeal
and the Court of Cassation regarding competency
1. The court of appeal, when ascertains that the
first instance court has been not competent, shall cancel the
appealed decision and shall transfer the case to the competent
court.
2. The decision of the Court of Cassation regarding
competency is compulsory, except when new facts leading to a different
legal definition making competent a superior court, appear.
Article 87
The evidence taken by an incompetent
court
1. Failure to observe the provisions regarding
the competence does not produce nullity of the assumed evidence.
2. Statements made before the court which did
not have substantial competency, if repeated, may be used only
to object the content of the deposition.
Article 88
Precautionary measures imposed
by the incompetent court
1. The precautionary measures imposed by the court
which in the meantime or after is declared incompetent for any
reasons, shall become ineffective, if the competent court, within
ten days from the receipt of the acts, does not decide for the
precautionary measures.
S E C T I O N V
DISPUTES REGARDING COMPETENCY
Article 89
Cases of disputes
1. There are disputes, in any stage and instance
of the proceedings, when two or more courts at the same time receive
or does not accept to examine the same accusation attributed to
the same person.
2. The disputes during preliminary investigations
shall be resolved by the superior prosecutor.
3. There may not be expounded any dispute on the
territorial competency due to connection of the proceedings during
preliminary investigations.
Article 90
The presentation of the dispute
1. The dispute may be presenteded by the prosecutor
in any of the courts subject todispute or by the defendant and
private parties. The presentation is submitted to the secretary
of one of the courts subject to dispute by a written and motivated
request, which is enclosed the necessary documents.
2. The disputes arising during the preliminary
investigations shall be resolved by the superior prosecutor.
3. The court raising the dispute shall render
a decision by which orders the submission to the Court of Cassation
of the copy of the acts necessary for its solution, indicating
the parties and the defence lawyers.
4. The court that has rendered the decision shall
immediately notify the court subject to dispute.
Article 91
Solution of the disputes
1. The disputes are resolved by a decision of
the Court of Cassation. The court examines data, acts and documents
that it considers as necessary.
2. The decision is notified immediately to the
courts in dispute, to the relevant prosecution offices, to the
defendant and private parties.
S E C T I O N V I
JOINDER AND SEPARATION OF CASES
Article 92
Joinder of cases
1. The joinder of cases which stand at the same
stage and instance before the same court may be decided, if the
speed of their solution is not impaired:
a) In cases provided by article 79;
b) In cases of criminal offences committed by
several persons damaging each other;
c) In cases when the prove of a criminal offence
or of an its circumstance influence on the proof of another criminal
offence or of an its circumstance.
Article 93
Separation of cases
1. The separation of cases is decided even ex-officio
but when the verification of facts is not damaged:
a) the proceedings where one or more defendants
or one or more accusation are involved are suspended
b) one or more defendants have not appeared before
the trial because of the nulity of the writ of summons, of the
innocent ignorance of the writ of summons or for lawful reasons
or because of lawful hindrances
c) one or more defence lawyers have failed to
appear before the trial because of failure of notification or
lawful hindrances.
d) the judicial examination for one or more defendants
or one or more accusations is complete, whereas for the other
defendants or for other accusations other operations are needed.
2. In addition to cases provided by paragraph
1, the separation may be also ordered by agreement of parties
when the court considers it as necessary to accelerate the process.
S E C T I O N V I I I
TRANSFER OF THE CASE
Article 94
Causes of transfer
1. In any stage and instance of the trial, when
public security or freedom of willingness of the persons who participate
in the process are impaired by serious local events which may
damage the performance of the process and which may not be avoided
by other means, the Court of Cassation, upon motivated request
of the prosecutor in the proceeding court or of the request of
the defendant, shall transfer the case to another court, assigned
according to article 76.
Article 95
Request for transfer
1. The request of transfer is filed, along with
the connected documents, to the secretary of the competent court
and is notified within seven days to the other parties.
2. The request of the defendant is signed by him
personally or by a special attorney of him
3. The court transfers immediately the request,
along with other documents and eventual remarks, to the Court
of Cassation.
4. Failure to respect the forms and time -limits
provided by paragraph 1 and 2 constitutes a reason for non-acceptance
of the request
Article 96
Effects of the request
1. The submission of the request
of the transfer does not suspend the trial, but the court may
not terminate the case until a decision acceptaning or rejecting
the request is rendered.
2. The Court of Cassation may decide the suspension
of the trial. The suspension does not hinder the carrying on of
immediate actions.
Article 97
Decision regarding request of transfer
1. The Court of Cassation after taking the necessary
data, decides in the consulting room, in absence of the parties.
2. The decision accepting the request is notified
to the court which was proceeding and to the court that shall
be appointed to try it. The court which was proceeding, transfers
immediately the acts to the appointed court and orders the notification
of the decision of the Court of Cassation to the prosecutor, defendant
and private parties.
3. The court appointed by the Court of Cassation
states by a decision whether the carried out actions are still
valid and the extent of such a validity.
T I T L E I I I
ACTS, NOTIFICATIONS AND TIME- LIMITS
C H A P T E R I
ACTS
S E C T I O N I
GENERAL RULES
Article 98
Language of acts
1. Criminal procedural acts are made in albanian
language.
2. The person who does not speak albanian is interrogated
in his mother's tongue and the minutes is kept also in this language.
Into the same language there are translated the procedural acts
given to him upon his request.
3. Infringements of these rules render the act
null and void.
Article 99
The signing of the acts
1. When it is required the signing of an act,
unless the law does otherwise provide, it is sufficient the hand-writing
of the name and the family name of the said person at the foot
of the act.
2. The signing put in by mechanical means or by
symbols differing from the writing are null and void .
3. When the person is not able to sign, the clerk
receiving the written act or filing the oral act, ascertains the
identity of the person and writes down this fact at the foot of
the act in the presence of the third persons.
Article 100
Date of the acts
1. When the law requires the date of an act, in
the act are indicated the day, the month, the year and the place
where the act is done. The indication of the time is required
only when provided expressly.
2. When it is provided that an act is deemed null
and void because the date has been not indicated, this rule applies
only to the case when the date may not be precisely given under
the elements to be contained by an act or by other acts connected
with it.
Article 101
Replacement of the original act
1. When the original of a procedural act is damaged,
is lost or disappeared and for various reasons is not found, the
authenticated and certified copy has the value of the original
and is put in the place when the original was.
2. For this reason, the court even ex-ufficio
orders by decision the person who keeps a copy to deliver it to
the secretary.
Article 102
The remaking of the acts
1. When the replacement of the act may not be
done, the court even ex-ufficio, verifies the content of the missing
act and orders whether it may be remade or not and in what way
it must be remade.
2. When the draft of the missing act exists, this
is remade on its bases, provided that one of the judges who have
signed, certifies that it has been authentic with the draft.
Article 103
Prohibition to publication of an
act
1.There is prohibited the publication, even partly,
of the secret acts connected with the case or even only their
content by means or press or mass-media.
2. It is prohibited the publication, even partly,
of the acts which are not secret until the termination of the
preliminary investigations.
3. It is prohibited the publication, even partly,
of the acts of judicial examination when the hearing is held in
camera. Prohibition to publication is cancelled when the time-limits
provided by law for state archives expire or when the time-limit
of ten years from the date that the decision has become final
has expired, provided that the publication is authorised by the
Minister of Justice.
4. It is prohibited the publication of the personal
data and photographs of the defendants and of juvenile witnesses
accused or damaged from the criminal
offence. The court may permit the publication
only when this is in the interest of the juvenile or when the
juvenile has reached the age of sixteen.
Article 104
Violation of prohibition to publication
1. The violation of prohibition to publication
performed by a state employee or a public entity, if does not
constitute a criminal offence, is a disciplinary violation. In
this case the prosecutor notifies the organ entitled to disciplinary
measures.
Article 105
The receiving of copies, excerpts
and certificates
1. During the proceedings and after its termination
any interested person may get, on his expenses, copies, excerpts
or certificates of specific acts.
2. The request is examined by the prosecutor ,
for the acts of the preliminary investigation, or by the court
which has rendered the decision for those of the judicial examination.
3. The issue of copies, excerpts or certificates
does not cease the prohibition to publication.
Article 106
The request of the prosecutor for
copies of the acts and for information.
1. The prosecutor has the right, when necessary
to make investigations, to ask from the court, even in cases of
secrecy, copies of acts connected with other criminal offences
he prosecutes and also written information regarding their content.
2. The court shall without delay give an answer
to the request or rejects it by motivated decision.
3. The provisions of paragraph 1 and 2 apply to
also the requests made by the Minister of Interior and the Chief
of Information Service, when they need copies of the acts and
information in order to prevent criminal offences.
Article 107
The participation of the deaf,
dumb and deaf and dumb
in the making of procedural acts
1. When the deaf, dumb and deaf and dumb want
or must give explanations, this is made as following:
a) The deaf are made the questions and forewarning
in writing and he shall answer orally.
b) The dumb are asked the questions and the forewarning
orally and he replies in writing.
c) The deaf and dumb are presented the questions
and the forewarning in writing and he replies in writing.
2. In case the deaf, the dumb or the deaf and
dumb are not able to read or write the proceeding authority shall
appoint one or more interpreters selected amongst the persons
who have the skill to communicate with them.
Article 108
The witnesses in the procedural
acts
1. There may not be witnesses for the certifying
of the content of a procedural act:
a) Juveniles up to fourteen years old and the
persons who evidently are mentally sick or who are in a serious
state of drunkenness or poisoning by drugs and psychotrops.
b) Persons under precautionary measures.
Article 109
The power of attorney applicable
for specific procedural acts
1. When the law permits that the act is made through
a special attorney, the power of attorney is made by a notarial
act or by a private letter certified by competent authorities,
otherwise it is not accepted, and shall comprise, in addition
to the data specifically required by law, the definition of the
object for which it is given and of the facts it has been referred
to. The power of attorney is attached to the acts.
2. The power of attorney issued by state authorities
must have the signature of the responsible and the seal of the
authority.
Article 110
Memories and requests of parties
1. The parties and their attorneys have the right,
in any stage and instance of the proceedings, to present memories
and written requests.
2. The proceeding authority renders a decision
within fifteen days.
Article 111
Statements and requests of the
detained persons
1. The person held in custody has the right to
present complaints, requests and statements through the director
of the institution, who issues a document certifying that they
have been handed. They are recorded in a special book, are notified
immediately to the competent authority and have the same effect
as having been excepted directly by that authority.
2. The defendant under house arrest or under supervision
in a healing place has the right to present claims, request and
statements to the officer of the judicial police who certifies
to have received them and takes care of their immediate sending
to the competent authority.
3. The same rules apply to information, complaints,
requests and statements presented by private parties or injured
person.
S E C T I O N I I
ACTS OF THE COURT
Article 112
The forms of court disposition
1. The court disposes by decision and by order.
2. The final decision is made in the name of the
people.
3. The decision and the order shall motivated,
otherwise they are deemed null and void.
4. The decision is made in the consulting room,
in absence of the secretary and parties.
5. When a member of the court has not voted for
what has been decided, upon his request, there is kept a summarised
minutes explaining the reasons of the objection. The minutes is
signed by all members and is put in a sealed envelope at the secretary.
6. The orders are issued without respecting any
specific formalities and, when it is not otherwise provided, they
are given even orally.
Article 113
The depositing of the court acts
1. The original of the court acts are deposited
in the secretary within five days from their making. Appealable
acts shall be notified to the prosecutor and to the persons the
law recognises the right to appeal.
Article 114
The correction of material errors
1. The court which has issued the acts may, even
ex-ufficio, make the correction of material errors of the decisions
and orders. When this act is appealed and the appeal is accepted,
then the correction is made by a decision of the court examining
the appeal on which bases is made a note in the original of the
act.
S E C T I O N I I I
DOCUMENTATION OF THE ACTIONS
Article 115
The minutes
1. The documentation of the actions is made by
minutes.
2. The minutes is compiled by the secretary of
the court, in full or in summarised form, by stenotyping, by other
technical means and, when these means are missing, by handwriting.
3. When the minutes is compiled in a summarised
form it must be made also the phonographic reproduction and, if
there are conditions, even the audio-visual reproduction when
required.
Article 116
The content of the minutes
1. The minutes contains the indication of the
place, year, month, day and, when necessary, even the time in
which it has started and completed, the personal data of the persons
who have participated, indication of the causes, if known, the
absence of the persons who must participate and the requests presented
by the parties.
Article 117
The signing of the minutes
1. The minutes, except the one kept in the hearing,
after being read, is signed at the foot of each page by the keeper,
by the one who proceeds and by the persons who have participated.
2. When one of the participants does not want
or is not able to sign, this is written as a remark, giving also
the reason why.
Article 118
Transcription of the minutes kept
by stenotyping means
1. The tapes typed with stenotyping symbols are
transcripted into ordinary letters not exceeding five days from
the date they have been made and they are attached to the acts
along with the transcription.
2. When the person who has typed the tapes is
subject to prohibition to transcription, then the court orders
to trust the transcription to a proper person even not working
in the state administration.
Article 119
Phonographic or audio-visual reproduction
1. Phonographic or audio-visual reproduction is
made by technicians, even out of the state administration, under
the auspices of the secretary of the court.
2. In case of phonographic reproduction, the minutes
shall indicate the time of start and termination of reproduction
operations.
3. When the phonographic reproduction is not understandable,
as evidence shall be used the minutes compiled in a summarised
form.
4. The phonographic or audio-visual records shall
be attached to the acts.
Article 120
The forms of documentation in particular
cases
1. The court, when the actions to be documented
have a simple content or when the mechanical means of the reproduction
or technical assistants are missing, decides the making of the
minutes in a summarised form.
2. When the minutes is kept in a summarised form,
the court takes care that the essential parts of the statements
and the circumstances under which they have been made shall be
noted.
Article 121
Oral statements of the parties
1. When the law does not require the written form
of the document the parties may make, by themselves or by means
of special attorneys, oral requests or statements. In this case,
the secretary of the court compiles the minutes and records the
statement. To the minutes shall be attached, when the case is,
the special power of attorney.
2. The party that requires it, is issued on his
own expenses a certificate or the copy of the statements made.
Article 122
Nullity of the minutes
1. The minutes shall be deemed null and void when
there are doubts regarding participating persons or when the signature
of the clerk who has kept it is missing.
S E C T I O N I V
THE TRANSLATION OF THE ACTS
Article 123
The appointment of the interpreter
1. The defendant who does not know the albanian
language is entitled to free assistance by an interpreter in order
to understand the accusation and to attend the actions he participates
in. By means of the interpreter he is obliged to make a written
statement admitting he does not know the albanian language.
2. The proceeding authorityshall also appoint
an interpreter when a writing into a foreign language must be
translated.
3. The interpreter is also appointed when the
court, the prosecutor or the officer of the judicial police do
know the language to be translated.
Article 124
Incapacity and the incompatibility
of the interpreter
1. There may not exercise the task of an interpreter:
a) the juvenile, the one who is prohibited to
translate, the one who is incapacitated, the mentally sick, the
one who is prohibited or suspended the exercise of public duties
and profession;
b) the person under precautionary measures;
c) the person who may not be asked as a witness,
the one who has been summoned as a witness and as expert in the
same process or in a process connected with this. Nevertheless,
in case a deaf, a dumb or a deaf and dumb is asked the interpreter
may be selected by their relatives.
Article 125
Request for challenging and withdrawal
of the interpreter
1. The parties have the right to challenge the
interpreter for reasons provided by article 124.
2. When there is a reason to ask the challenge
or withdrawal, the interpreter must announce it.
3. The request for challenge or withdrawal may
be submitted before the assignment and, for reasons acknowledged
later on, before the interpreter has performed his assignment.
4. The request for challenge or withdrawal is
subject to a decision of the proceeding authority.
Article 126
The assignment of the interpreter
1. The proceeding authority verifies the identity
of the interpreter and asks him whether there are reasons for
his challenge or not.
2. The interpreter is forewarned of his obligation
to an accurate translation and to the secrecy of actions carried
on in his presence. After this, he is invited to perform the assignment.
Article 127
Time-limit for completion of written
translations. Substitution of the interpreter
1. The proceeding authority shall fix the interpreter
a time-limit in case the translation of the writings requires
an overtime work. The interpreter may be substituted when he does
not present the written translation within the time-limit.
2. The substituted interpreter, after being summoned
to appear before the court to give the reasons why the assignment
has been not completed, and the court may punish him by fine up
to ten thousand leks.
S E C T I O N V
NULLITY OF THE ACTS
Article 128
Absolute nullity
1. The procedural acts shall be deemed null and
void when there are not respected the provisions related with:
a) the prerequisites to be a judge in the concrete
case and the required number of judges to set up the colleges
as provided by this code;
b) the right of the prosecutor to initiate criminal
proceedings and to participate in the proceedings;
c) the summons of the defendant or the presence
of the defence lawyer when it is compulsory.
2. An act which has been qualified as absolutely
null and void by law may not become valid.
Article 129
Relative nullity
1. The nullity differing from those provided by
articles 130 and 131, paragraph 2 may be declared upon request
of the parties.
2. The nullity related to the acts of preliminary
investigation and to those made for the incident of the proof
must be objected before the judicial examination starts.
3. The nullity proven in the trial may be objected
along with the appeal of the final decision.
4. Time-limits to present or to object the nullity
may not be prolonged.
5. The nullity of an act must when the party is
present must be objected before it is completed or, when this
is not possible, immediately after its completion.
Article 130
The evaluation of nullity
1. Except when the law does otherwise provide,
the nullity is not considered when :
a) the interested party has expressly withdrawn
from its objection or has accepted the consequences of the act.
b) the party has profited from the right for which
exercises the null and void act has been ordered before.
2. Nullity of notifications, announcements and
communications is evaluated in case the interested party has failed
to appear or has refused to appear.
3. The party declaring that appears only to present
the irregularity of the act is entitled to a time-limit, not less
than five days, to defence.
Article 131
Consequences of declaring the nullity
1. The nullity of an act renders null and void
subsequent acts which are depended on the one that has been declared
null and void. The court declaring the nullity of an act orders
its repetition.
2. The court declaring the nullity of an act orders
its repetition when this is needed and possible charging expenses
to the one who has caused the nullity intentionally or because
of gross negligence.
C H A P T E R I I
NOTIFICATION
Article 132
Organs and forms of notification
1. The notification of the acts are carried on
by the clerk or by mail.
2. The judge, when considers necessary may order
that notification are made by the judicial police.
3. When the copy of the act is delivered to the
interested person by the secretary of the court this has the value
of the notification. In this case the secretary of the court notes
on the original acts the delivery and the date.
4. The notifications made by the court to the
interested person in their presence are kept in the minutes.
Article 133
Urgent notification by telephone,
telegraph and fax
1. The judge, in urgent cases, may order that
the persons requested by the parties, except the defendant, are
notified by telephone from the secretary of the court or from
the judicial police. On the original of the notification is noted
the number of the dialled number of the telephone, the name and
the duty of the person which receives the notification, his relations
with the one subject to notification the date and the time of
the telephone call.
2. The notification telephone is valid since the
moment it is made but still when there is also received the confirmation
by the receiver through the telegram.
3. The notification may be made also by telegram
and fax.
4. The judge under specific circumstances may
dispose by order motivated at the foot of the act that the notification
of the person, except the defendant is made by using adequate
technical means which guarantee the notification.
Article 134
Notification of acts to the prosecutor.
1. The notification of the act to the prosecutor
during the preliminary investigation is made by the judicial police
or by mail.
2. The delivery of the copy of the act to the
interested person by the secretary has the validity of the notification.
The deliverer notes on the original of the act the fact of the
delivery and the date.
3. Oral notification made by the prosecutor replace
the notifications provided that this fact is noted in the minutes.
Article 135
Notifications by private parties
1. Notifications by the parties may be made even
with the sending of the copy of the act by their attorneys through
a registered letter with a confirmation of receipt.
Article 136
Notification to the prosecutor
1. The notifications to the prosecutor are made
even directly by the parties, defence lawyers or their attorneys
through the delivery of the copy of the act to the secretary.
The one who receives it notes in the original and in the copy
of the act the personal data of that who has made the delivery
and the date.
Article 137
Notification to the private parties
1. Notifications to the person injured from the
criminal offence are made equally as in cases when it is notified
for the first time the defendant in free conditions. When the
places indicated in the article 143 are not known the notification
is made by depositing the act in the secretary. When it results
from the acts that his domicile or residing place or residence
are abroad, he shall be cited by a registered letter with confirmation
of reception by which he must declare or choose an address within
the territory of albanian state. When after twenty days from the
reception of the registered letter the declaration or the choice
of the address is not made the notification is done by depositing
the act in the secretary.
2. The notification of the first summons to the
civilly sued person is made in the forms provided for the first
notification of the defendant in free state.
3. The notifications regarding the plaintiff and
civilly sued person are made to their attorneys.
Article 138
Notifications of injured persons
by public announcements
1. When the notification of the injured persons
is difficult because there are many of them or because it is difficult
to identify some of them, the court may order the notification
by public announcement.
2. The notification is considered completed when
the clerk of the court deposits a copy of the act along with the
documents which certify the public announcement at the secretary.
Article 139
The notification of the imprisoned
defendant
1. The notification of the imprisoned defendant
in the prison by handing him the act.
2. When the defendant refuses to receive the copy
of the act or when he is absent for justified reasons the act
is handed to the responsible of the institution who, in such a
case, gives notes to the interested person by the fasted means.
3.The provisions hereof shall be also applicable
in case the defendant is detained for another accusation or is
serving the punishment to imprisonment.
4. When the prisoner is released due to the changing
of the precautionary measures he must declare or choose an address.
This is noted in the act of release and is notified to the proceeding
authority. When the notification in the declared or the chosen
address may not be executed then the act is delivered to the defence
lawyer.
Article 140
The notification of the defendant
in free state
1. The notification of the defendant in free state
is made by delivering him the copy of the act. When it may not
be delivered to him personally the notification is made in his
domicile or working place by delivering the act to a person who
lives with him or to a neighbour or to a person who works with
him.
2. When the places indicated in the paragraph
one are not known the notification is made in the place where
the defendant lives temporarily or in the place where he resides
more frequently, by delivering it to one of the persons indicated
in the paragraph 1.
3. The copy of the notification may not be delivered
to a juvenile under fourteen or to a person with evident lack
of intellectual capacity.
4. When the persons indicated in the paragraph
1 are absent or when there are not suitable or refuse to receive
the act then it is proceeded by tracing the defendant in other
places. In case that even this way the notification may not be
done, the act is deposited in the administrative unit of the quarter
or the village where the defendant lives or works. The notification
of the deposit is posted on the gate of the house or working place
of the defandant. The clerk notifies him for the deposit by a
registered letter with a confirmation of the receipt. The effects
of the notification start since the reception of the registered
letter.
5. The notification of the defendant who is serving
military service is made by handing him personally the act and
when this cannot be done the act is notified to the commando unit
which is obliged to immediately notify the interested person.
6. The defendant is obliged to notify the proceeding
authority for any changing of the declared or chosen domicile
by telegram or registered letter.
Article 141
The notification of the defendant
when he is not found
1. When the notification cannot be done according
to rules specified for the first notification of the defendant
in free state, the proceeding authority orders the searching for
the defendant In case the search does not give any positive result
then it is issued the decision of failure to be found by which
after appointing a defence lawyer to the defendant, is ordered
that the notification is done by delivering a copy to the defence
lawyer. the unfound person is represented by the defence lawyer.
2. The decision of the failure to find him shall
loose the effects when the preliminary investigations terminate
or as the decision of the court is rendered.
3. The notification to the hidden or escaped defendant
is made by delivering of the copy of the act to the defence lawyer
and when he has not a defence lawyer the proceeding authority
appoints a defence lawyer ex-officio, who represents the defendant.
Article 142
The notification of the defendant
abroad
1. When the domicile or the residence of the defendant
abroad is known the proceeding authorities sends him a registered
letter with confirmation of reception, by which notifies the criminal
offence he is charged with and asks him to declare or choose a
domicile in the albanian territory. In case after three days from
the reception of the registered letter the declaration or the
choice of the domicile is not made or when this is not notified,
the notification is made by the delivery to the defence lawyer.
2. When it results that there are not sufficient
data to act as provided by paragraph 1 the proceeding authority
, before issuing the decision of failure to find him, orders for
searches to carry out, even outside the territory of that state,
in conformity to the rules provided by international conventions.
Article 143
Nullity of notification
1. The notification is null and void when:
a) the act has not been notified entirely, except
when the law permits the notifications by excerpts,
b) in the copy of the notified act the signature
of the one who has made the notification is missing,
c) there are violated specific provisions regarding
the person who is entitled to the delivery of the copy,
d) there is not made the posting of the notification
for the defendant in free state,
e) in the original of the notified act the signature
of the person who has undertaken the notification according to
article 140, paragraph 1 is missing,
f) there are not observed the forms of the notification
by special technical means and for this reason the one who should
be notified did not get informed of the act.
C H A P T E R I I I
TIME-LIMITS
Article 144
General rules
1. The procedural time-limits are fixed hourly,
daily, monthly or yearly.
2. The time-limits are assessed under the ordinary
calendar.
3. When the daily fixed time-limit chances on
a holiday or on a bank holiday, it is postponed up to the subsequent
working day.
4. Except when the law otherwise provides, there
shall not be assessed in the time limit the hour or the day on
which the time-limit starts. There are assessed the last hour
or the last date.
5. The time-limit for the presentation of statements
the deposit of the documents or the carrying on of other operations
in the court shall be considered terminated at the moment when,
as a rule, the offices are closed for the public.
Article 145
Time-limit that may not be prolonged
1. The time-limit which may not prolonged are
those provided by law for specific cases. These time-limits may
be prolonged only when the law does otherwise provide.
2. The party in which favour has been fixed a
time-limit may ask or permit its shortening by a statement delivered
to the secretary of the proceeding authority.
Article 146
Prolongation of the time-limit
to appear
1. When the domicile of the defendant given by
the acts or the declared or chosen domicile stands outside the
district where the proceeding authority has its seat the time-limit
to appear shall be prolonged as long as days are needed for travelling.
In any case the prolongation of the time-limit may not be longer
than three days. the prolongation of the time-limit for the defendant
residing abroad id fixed by the proceeding authority taking into
consideration the distance and the means of transport which are
used.
2. These rules shall also apply to the time-limit
provided for the appearing of any other person for which the proceeding
authority has issued an order or a writ of summons.
Article 147
Reinstatement of the time-limit
1. The prosecutor , the defendant, private parties
and defence lawyers shall be reinstated the fixed time-limit when
they prove to have not been able to observe the time-limit due
to mischance or force majeure.
2. In case the decision is rendered in absence
the defendant may request the reinstatement of the time-limit
to make an appeal when proves that he has not been notified of
the decision.
3. The request to reinstate the time-limit is
presented within ten days from the disappearing of the fact which
constituted mischance or force majeure, whereas in cases provided
by paragraph 2 from the day when the defendant has become effectively
aware of the act. The reinstatement of the time-limit is not permitted
more than once for each party for each stage of the proceedings.
4. The request is subject to the decision of the
authority which proceeds at the time of its presentation.
5. The decision permitting the reinstatement of
the time-limit for making the appeal is appealable only along
with the final decision.
6. The decision refusing the request for reinstatement
of the time limit is subject to an appeal to the Court of Cassation.
Article 148
The effects of reinstatement of
time-limit
1. The court which he has decided the reinstatement
of the time-limit, upon request of the party and as far as it
is possible, orders the repetition of the operations in which
the party was entitled to participate.
2. When the reinstatement of the time-limit is
rendered by the Court of Cassation the repetition of the operations
shall be decided by the court which is competent to the review
on merits
T I T L E I V
THE PROOF
C H A P T E R I
GENERAL RULES
Article 149
The meaning of the proof
1. The proof are information on the facts and
circumstances connected with the criminal offence which are acquired
from sources provided by criminal procedural law in conformity
with its rules and which contribute to proving whether the criminal
offence has been committed or not, the consequences which have
come from it, the guilt or innocence of the defendant and the
extent of his responsibility.
Article 150
The subject of the proof
1. There are subject of the proof the facts connected
with the accusation, the guilt of the defendant, the taking of
precautionary measures, the punishment and civil liability as
well as the facts which influence to the application of the procedural
rules.
Article 151
The taking of the proof
1. During the preliminary investigation the proceeding
authority takes the proof under the rules provided by this code.
2. The proof in the trial are taken upon request
of the parties. The court
decides by order, dismissing the proof prohibited
by law and those who are obviously unnecessary. The disposition
regarding the taking of the proof may be revoked in any stage
of court examination.
3. When a proof which is not provided by law is
requested, the court may take it if it assists to prove the facts
and if it does not impair the free willingness of the person.
The court decides on the taking of the proof after hearing the
parties how to take it.
4. There may not be used the proof taken contrary
to the prohibitions provided by law. The uselessness is also brought
ex-officio in any stage and instance of the proceedings.
Article 152
Evaluation of proof
1. The evaluation of the proof is the definition
of the genuiness and their capacity of proving. Any proof is subjected
to examination and does not have any prejudiced value. The court
evaluates the proof upon conviction created after their thorough
examination.
2. The existence of a fact may not be picked up
from the indications except when these are important, accurate
and in harmony with each other.
3. The statements made by the co-defendant in
the same criminal offence or by the person held as defendant in
a proceedings connected with him shall be evaluated along with
other proof which confirm their genuiness.
C H A P T E R I I
TYPES OF PROOF
S E C T I O N I
TESTIMONY
Article 153
The subject and the limits of testimony
1. The witness is questioned on the facts which
are subject to proof. He cannot give evidence on the moral behaviour
of the defendant, unless the case is connected with facts which
help to figure out his personality in connection with the criminal
offence and the social dangerousness.
2. The interrogation of the witness can be extended
also to the kinship relations and to the existing interests between
the witness and the parties or other witnesses, as well as to
the circumstances which verification is needed to evaluate his
reliability. The testimony to facts which help to figure out the
personality of the injured by the criminal offence is only accepted
if the accusation to the defendant must be evaluated in relation
with the behaviour of the injured person.
3. The witness is questioned for specific facts.
He may neither give evidence about facts which are discussed in
public nor express his personal opinion, except when they cannot
be divided from the testimony to the facts.
Article 154
Indirect testimony
1. When the witness, in order to know the fact,
refers to other persons, the court, upon request of the party
or ex-officio, orders them to appear to give evidence.
2. In case the provisions of the paragraph 1 are
not taken into consideration, the testimony of the witness to
the fact acknowledged by him from other persons is useless, except
when their interrogation is impossible because of their death,
their grave malady or when they are not found.
3. The witness cannot be questioned for facts
which he has learn from the persons who are obliged to keep their
professional or state secret, except when these persons have given
evidence on the same facts or have spreaded them in any other
way.
4.It may not be used the testimony of the person
who refuses or who is unable to indicate the person or the source
from which he has learned the facts subject to his interrogation.
Article 155
Capacity to give evidence
1. Anyone, except those who are not able to testify
because of their mental or physical disability, has the capacity
to give evidence.
2. When the evaluation of the statements needs
the verification of mental and physic capacity to give evidence,
the court even ex-officio can order for necessary verifications
to carry.
Article 156
Incompatibility with the assignment
of the witness
1. There cannot be questioned as witnesses:
a) the persons who, due to physical or psycological
sickness, are not able to give right evidence;
b) the defendants in a common criminal offence
or in a connected proceedings even when they have been subject
to a dissmissal, acquittal or conviction, except when the acquittal
has become final.
c) the ones who are carrying on or have been vested
the function of the judge or prosecutor in the same proceedings.
c) the civilly sued
Article 157
The duties of the witness
1. The witness is obliged to appear before the
court, to observe its orders and to say the truth for the questions
brought before him.
2. The witness may not be forced to testify to
facts which can incriminate him.
Article 158
Exemptions from obligation to testify
1.There are not obliged to testify:
a) the close relatives of the defendant, except
when they have made an indictment or a complaint or when they
or a close relative of them are injured by the criminal offence;
b) the spouse, for facts he has learnt from the
defendant during their matrimonial life;
c) the divorced spouse of the defendant;
d) the person who is not the spouse of the defendant
but he concubinages or have concubinaged with him or her;
e) the person who is related with the defendant
by adoption.
2. The court explains to the above mentioned persons
the right to not testify and asks them if they wish to make use
of this right. If this rule is ignored, the testimony is rendered
null and void.
Article 159
Professional secrecy
1. There may not be forced to give evidence for
facts learnt due to their duty or profession, except when they
have to present them to the proceeding authorities:
a) the representatives of the religious belief,
whose statutes are not in opposition to the albanian rule of law;
b) practicing lawyers, legal representatives and
notaries;
c) doctors, surgeons, pharmaceutists, obstetricians
and any body else exercising a medical profession,
d) the ones who exercise other duties or professions,
whom the law recognises the right to not give evidence for what
concerns the professional secret.
2. When there are reasons to suspect that these
persons try to not give evidence under unmotivated grounds, the
court orders for necessary verification. When it results ungrounded,
the court decides that the witness must give evidence.
3. The provisions setforth in paragraph 1 and
2 shall also apply to the professional journalists as far as the
names of the persons from whom they have collected information
during the performance of their profession are concerned. But,
in case the data are indispensable to prove the criminal offence
and the truthfulness of these data may become clear only through
the identification of the source, the court orders the journalist
to give the source of his information.
Article 160
The keeping of the state secret
1. The state employees, public clerks and the
persons assigned with a public service are not obliged to give
evidence for facts which are considered as state secret.
2. When the witness insists that the fact is a
state secret, the court requests a written confirmation of the
competent state authority.
3. When the secret is confirmed and the proof
is not essential for the solution of the case, the witness is
not questioned, but in case the proof is essential, the court
decides the suspension of the case until the superior authority
of the state administration shall give its response. After this
the witness must testify.
4. When, after thirty days from the communication
of the request, the competent state authority does not confirm
the secret, the witness is asked to testify.
5. The officers and the agents of judicial police,
as well as the personnel of informative service may not be ordered
to tell the names of their informers.
Article 161
Exclusions in the status of a secret
1. There may not be qualified as state secret
the data or documents connected with criminal offences, which
attempt to overthrow the constitutional order. The nature of the
criminal offence is defined by the proceeding authority.
2. If the exception of the secret is not accepted,
the competent state authority shall be informed.
Article 162
The taking of testimony from the
President of the Republic
and other high rank state employees
1. The testimony of the President of the Republic
is taken in the residence he exercises the function of the Head
of the State.
2. In case the testimony of the Chairman of the
Parliament, Prime-Minister, President of the Constitutional Court,
President of the Court of Cassation must be taken, they may ask
to be interrogated in the offices they exercise their functions.
When the court considers their presence as indispensable to carry
out acts such as recognition or
confrontation, it is proceeded under ordinary
rules.
Article 163
Taking testimony from diplomats
1. In case a diplomat or anyone in charge of diplomatic
mission outside albania must be questioned, as long as he is outside
the territory of the albanian state the request for his interrogation
shall be transmitted, through the Ministry of Justice, to the
albanian diplomatic or consulate authority, except when they must
appear by all costs.
2. For the taking of testimony from diplomats
of a foreign country accredited in Albania international conventions
and customary rules shall apply.
Article 164
Forcible accompaniment
1. When the witness, who is normally summoned,
does not appear at the designated place, day and hour, without
any lawful obstacles, the court may order the forcible accompaniment.
2. The person under forcible accompaniment cannot
be held available more than the required time for his appearance
and, in any case, not more than twenty-four hours.
3. The provisions of paragraph 1 and 2 do also
apply to the expert and interpreter.
Article 165
The responsibility for false evidence
or refusal to give evidence
1. When during the interrogation the witness gives
contradictory, not complete or sayings which run against the taken
proof, the court forewarns him for false evidence. The same forewarning
shall apply to the witness who unlawfully refuses to give evidence.
2. In case the witness persistently refuses to
give evidence or when it is evident that the witness has given
false testimony, the court requests from the prosecutor to proceed
according to law.
S E C T I O N I I
INTERROGATION OF THE DEFENDANT
AND THE PRIVATE PARTIES
Article 166
The request for the interrogation
1. The defendant and the civilly sued are interrogated
in case they request or when this is requested to them and they
give their consent. The same applies to the civilly sued, except
when he must be interrogated as witness.
Article 167
Interrogation of a person who is
a defendant in a connected proceeding
1. The persons held as defendant in a connected
proceedings, who are being proceeding or are proceeded separately,
are interrogated upon the request of the party or even ex-officio.
2. They must appear before the court which, when
necessary, orders their forcible accompaniment. The provisions
of summoning of the witnesses shall apply.
3. The persons indicated in the paragraph 1 shall
be defended by the selected defence lawyer and, in his absence,
by a defence lawyer appointed ex-officio.
4. Before the start of examination, the court
reminds the persons indicated in the paragraph 1 of their right
to silence.
5. The provisions of the above paragraphs shall
also apply to preliminary investigations of the persons held as
defendant or for a criminal offence which is connected with that
under proceedings.
Article 168
The interrogation of private parties
1. The interrogation of private parties shall
undergo the dispositions provided by articles 153, 154,157, paragraph
2 and 363.
2. When the party refuses to answer a question
this shall be noted in the minutes.
S E C T I O N I I I
CONFRONTATIONS
Article 169
The requirements of the confrontation
1. The confrontation is allowed only between persons
who have been interrogated, when there are contradictions amongst
them for certain facts and circumstances.
Article 170
Rules of the confrontations
1. The proceeding authority, after reminding the
persons to be confronted of their previous statements, shall ask
them whether confirm or change them, inviting, if necessary, to
make the reciprocal objections.
2. In the minutes shall be registered the questions
brought by the proceeding authority, statements made from the
persons in confrontation and anything else which has occurred
during the confrontation.
S E C T I O N I V
RECOGNITION
Article 171
Recognition of persons
1. When recognition of a person is needed, the
proceeding authority invites the one who must make the recognition,
to describe the person by producing all the signs he remembers
and asks him whether he has been asked to make the recognition
before and also other circumstances which may contribute to the
truthfulness of the recognition.
2. In the minutes there are noted the actions
provided by paragraph 1 and the statements made by recognizing
person.
3. Failure to meet the provisions of paragraph
1 and 2 is a cause to render recognition null and void.
Article 172
The performance of recognition
1. After ordering the recognising person to leave,
the proceeding authority provides the appearance of at least two
persons, who take after the to be recognised. It invites the latter
to choose his place trying to appear, as much as it is possible,
in the same circumstances in which he might have been seen by
the recognising person. After the recognising person appears,
the court asks him whether he knows anyone of those who are under
recognition and, if the answer is positive, it invites him to
show the one he recognises and to specify whether he is pretty
sure of this.
2. When there are reasons to think that the person
cited to make a recognition may feel scared or has any influence
of the presence of the person to be recognised, the proceeding
authority orders that the act is carried avoiding the first to
be seen by the latter.
3. In the minutes there are noted, by sanction
of nullity, the performance of the recognition. The proceeding
authority may order the recording of the process of recognition,
even by photographing or filming it.
Article 173
Recognition of objects
1. When it must be proceeded in recognising material
proofs or other objects connected with the criminal offence, the
proceeding authority acts by observing the rules of recognition
of the persons, at the extent this can be done.
2. After being found, when possible, at least
two objects similar with the one to be recognised, the proceeding
authority shall ask the person cited for recognition whether he
knows any of them and in case the answer is yes, it invites to
state which of them and to confirm that this is for sure.
3. In the minutes are kept, by sanction of nullity,
the way recognition is carried out.
Article 174
Other forms of recognition
1. When it orders the recognition of voices, sounds
or any other thing which may be subject to sensual perception,
the proceeding authority observes the rules applicable to the
recognition of persons, as far as this is possible.
Article 175
Recognition by several persons
or of several persons
1. When several persons are cited to make the
recognition of the same person or object, the court proceeds by
separate actions, prohibitting any communication between the one
who has made the recognition and the ones who must make it after.
2. When a person must recognise several persons
or objects, the court orders that the person or the object to
be recognised shall be put amongst the persons or the various
objects.
3. There shall apply the provisions of articles
171, 172 and 173.
S E C T I O N V
THE EXPERIMENT
Article 176
Conditions of the experiment
1. The experiment is permitted when necessary
to prove whether a fact has occurred or not or whether it may
have occurred in a certain way.
2. The experiment is the reproduction, as far
as this is possible, of the situation in which the fact has occurred
or it is deemed to have occurred, by repeating the ways of the
occurring of the fact itself.
Article 177
The rules of performing the experiment
1. The decision of the proceeding authority ordering
the completion of the experiment comprises a summarised information
about its object and the indication of the day, time and place
where the actions will take place. In the same decision or in
another subsequent one a specialist to carry on the specific actions
may be appointed.
2. The proceeding authority takes the adequate
measures to carry out the actions ordering the photographing and
the filming and also measures that the public or individual security
is not threatened.
S E C T I O N V I
EXPERTISE
Article 178
The subject of expertise
1. The expertise is permitted when necessary to
carry on researches or to take evidence or evaluations which require
special technical, scientific, or cultural knowledge.
2. There shall not be allowed the expertise to
figure out the professionalism in the criminal offence, criminal
inclination, character and the personality of the defendant and,
in general, the psychic features which are not connected with
pathological.
Article 179
Assignment of expert
1. The assignment of expert is made by selecting
him amongst the persons registered in the special books or amongst
them who have special knowledge on this matter. When expertise
shall be declared null and void the, proceeding organ takes the
measures, when possible, that the new assignment is trusted to
another expert.
2. The order of the proceeding authority for the
assignment of the expert is notified to the defendant or his defence
lawyer, explaining his right to ask for the challenge of the expert,
to propose other experts, to participate himself in the expertise,
when possible, and to ask questions to the expert.
3. When the researches and the evaluations appear
to be very complex or require various information from several
subjects, the proceeding authority shall charge the task of the
expertise several experts.
4. The expert is obliged to carry out his job
except when there are not the cases of his challenging as an expert.
Article 180
Incompatibility in the assignment
of the expert
1. There may not carry on the duty of an expert,
by sanction of nullity:
a) the juvenile, the one who has a legal obstacle
or is incapacitated or suffers from a mental sickness
b) the one who is suspended, even temporarily,
from public duties or from the exercise of the profession
c) the one who has been imposed individual precautionary
measures
d) the one who may not be interrogated as a witness
or to be cited as an interpreter or has the right to not give
evidence or to not translate.
Article 181
The challenge of the expert
1. The parties may challenge the expert as in
cases this law provides for the challenge of a judge.
2. When there is a reason for the challenging,
the expert is obliged to declare it.
3. The statement of the reason of the challenge
made by the expert himself or the demand for the challenging made
by the parties may be presented until the assignment has been
made and when the causes have come about on the spot or have been
known later, before the expert has given his opinion.
4. The statement of the expert for the challenging
or the demand for his challenge is subject to the decision of
the proceeding authority that has ordered the expertise.
Article 182
The dispositions of the proceeding
authority
1. The proceeding authority disposes the expertise
upon a motivated decision, which include the appointment of expert,
the brief introduction of the case, the indication of the day,
hour and of the fixed place for the appearance of the expert .
2. The proceeding authority orders the expert
and takes the measures for the appearance of the persons subjected
to expertise.
Article 183
The assignment of the duty
1. The proceeding authority, after being certain
of the expert's identity, asks him if there are reasons of challenge,
forewarns him on the obligations and responsibilities provided
by the criminal law, compiles the requirements of expertise and
invites the expert to make the following statement: "Being
aware of the moral and legal responsibility of the assignment
I am undertaking , I shall carry it out honestly and fairly and
I shall keep the secret of all the actions connected with the
expertise".
2. The remuneration of the expert is determined
by order of the authority which disposes of the expertise.
Article 184
The actions of the expert
1. In order to meet the requirements of the expertise,
the proceeding authority may authorise the expert to look at the
acts, documents and anything else in the file of the prosecutor
or the court.
2. The expert may be also authorised to take part
during the interrogation of the parties and the taking of the
proof.
3. When the expert asks data from the defendant,
injured person or other persons. these data shall be used only
for the completion of expertise.
Article 185
The expertise report
1. The opinion of expert is provided in writing.
2. When the appointed experts are more than one
and they have different opinions, each of them shall give his
own opinion by a separate act.
3. In case there are a lot of facts and the expert
cannot answer immediately, the proceeding authority gives him
a period of time not exceeding sixteen days. In case he needs
to make some very complex verifications, this term may be prolonged
more than once for periods of times not longer than thirty days,
but in any case without exceeding the maximum of six months.
Article 186
Replacement of expert
1. The expert may be replaced in case he does
not give his opinion within the fixed term or when the request
for prolongation is not accepted or he is negligent in his duty.
2. The order of the proceeding authority regarding
substitution is given after hearing the expert. The replaced expert
may be punished by a fine up to ten thousand leks.
3. The expert is also substituted when the request
for his challenge is accepted.
4. The replaced expert is obliged to deliver to
the proceeding authority the documentation and the results of
the performed acts.
S E C T I O N V I I
REAL EVIDENCE
Article 187
The meaning of real evidence
1. The real evidence comprises the objects which
have been used as means in the committing of a criminal offence
or which keep traces or which have been as a target for the actions
of the defendant, objects which constitute the benefit from the
criminal offence, as well as any other object which may contribute
to the clarification of the circumstances of the case.
Article 188
The taking of real evidence
1. The real evidence are described in detail in
the minutes, when there is possible they are photographed or filmed
and, by order of the proceeding authority, shall be attached to
the court file.
Article 189
The preservation of the real evidence
1. If the real evidence which are destroyable
due to their nature cannot be restituted to the persons they belong
to, then they shall be delivered for use to specific entities,
which must give them back in the same conditions or pay back their
value.
Article 190
Disposition of real evidence
1. In their final sentence or in that of the dismissal
of a case the court or the prosecutor decide what must be done
with the real evidence ordering:
a) the objects that have been used or were qualified
as means for the commission of the criminal offence and the objects
which constitute benefit resulting from the same or given or promised
payment for its commission shall be retained and transferred to
the state, except when they belong to persons who have been not
involved in the commission of the criminal offence.
b) the objects which maintenance or circulation
is prohibited shall be delivered to the respective entities or
shall be destroyed
c) the objects having no value shall be destroyed
d) the other objects are restituted to the persons
that they belong to and, when there are disputes regarding their
ownership, shall be preserved until the disputes are resolved
by the court.
2. Real evidence may be restituted to the persons
they belong even before the termination of the proceedings, provided
that solution of the case is not impaired.
S E C T I O N V I I I
DOCUMENTS
Article 191
The acquiring of documents
1. There shall be permitted the acquiring of the
documents representing facts, persons or objects through photographing,
filming, phonographing or any other means.
2. When the original of a document is destroyed,
lost or disappeared the copy may be acquired.
3. The documents that constitute real evidence
must be acquired whoever
be the person who produced or keeps them.
Article 192
Documents regarding personality
1. There shall be permitted the acquiring of certificates
regarding criminal record and of the final court sentences to
judge upon the personality of the defendant and injured when the
fact under proceedings must be evaluated considering their conduct
or moral profile.
2. These documents may be also acquired to evaluate
the reliability of a witness.
Article 193
The acquiring of minutes of other
proceedings
1. There shall be permitted the obtaining of the
minutes of other criminal proceedings which have a connection
with the safety of evidence administered during the court examination.
2. There shall be permitted the acquiring of minutes
of evidence in a civil trial which has ended with a final judgement.
3. There shall be permitted the acquiring of documents
of the actions which cannot be repeated.
4. In addition to the cases provided in paragraph
1, 2, and 3 the minutes of the proof may be used in the judicial
review in case the parties agree or in case of objections provided
by articles 364 and 367.
5. The final decisions may be acquired for questions
of evidence related with the existence of the fact, being evaluated
along with other evidence.
Article 194
Anonymous documents
1. The documents which constitute anonymous information
may neither be obtained nor used, except when they constitute
real evidence or when they have been made by the defendant.
Article 195
False documents
1. The court, when on termination of the proceedings
come to the conclusion that an acquired document is false, informs
the prosecutor and also sends him the document.
Article 196
The translation of the document
1. When a document is acquired as written in a
foreign language, the proceeding authority orders its translation.
2. The proceeding authority orders, when necessary,
the transcription of the magnetic tape.
Article 197
The issue of copies
1. When orders the acquiring of a document the
proceeding authority, upon request of the interested person, may
authorise the secretary to issue authenticated copies of the document.
C H A P T E R I I I
THE MEANS OF SEARCHING FOR EVIDENCE
S E C T I O N I
EXAMINATIONS
Article 198
Cases and forms of examination
1. The examination of persons, of the spot and
objects is ordered by the proceeding authority when necessary
to find out the traces and the other material consequences of
the criminal offence.
2. When the criminal offence has left no trace
or material consequences or when these have disappeared, are lost,
changed or removed the proceeding authority describes the scenary
and, when possible, reveals how has it been before the changes
and also takes steps to specify the way, the time and the reasons
of eventual changes.
3. The proceeding authority may order photographing,
filming and any other technical operation.
Article 199
Examination of persons
1. The examination is made by respecting the dignity
and, as far as possible, the protection of the person subjected
to examination.
2. Before the start of examination, the person
to be examined is noted the right to ask the presence of a reliant,
provided that he may be found immediately and is proper.
3. The examination may be also conducted by a
doctor. In such a case the proceeding authority may choose to
not participate in the examination.
4. When necessary for the ascertainment of facts
which are important for the case, blood examination and other
bodily interventions even without the willingness of the person
shall be allowed, provided that no danger occurs to health.
Article 200
Corpse examination
1. Corpse examination is made by the proceeding
authority in the presence of a forensic doctor.
2. For the examination of the corpse the judge
or the prosecutor may order the exhumation, informing a member
of the family of the deceased to participate, except when this
participation may impair the scope of examination.
Article 201
Examination of spots and objects
1. The defendant and the one having available
the spot on which the examination shall be made or the object
to be examined shall be delivered initially the copy of the order
for the completion of the examination.
2. In case of spot examination the proceeding
authority may order, for motivated reasons, that the attending
persons shall not leave before the completion of the examination
and to get back forcibly the ones who leave .
S E C T I O N I I
INSPECTIONS
Article 202
Circumstances for carrying on inspections
1. When grounded reasons to think that someone
hides real evidence of criminal offence or objects belonging to
criminal offence exist, the court renders a decision regarding
completion of inspection of the person. When these objects are
in a certain place inspection of the place or of the house is
ordered.
2. The court which has rendered the decision may
act itself or order the officers of the judicial police to complete
the inspection, as specified in the inspection order.
3. In case of flagrancy or when the escaping person
is being traced, which cannot wait until a decision for inspection
is rendered, the officers of judicial police shall carry out the
inspection of the person or of the spot following the rules provided
by article 299.
Article 203
Delivery request
1. When a certain object is being searched for,
the proceeding authority may ask its handing. In case the object
is handed, then the inspection is not completed, except when it
is considered necessary.
2. In order to specify the objects which may be
sequestrated or to reveal specific circumstances, necessary for
the investigation, the proceeding authority or its authorised
officers of judicial police may inspect the bank operations, documents
and correspondence.
Article 204
Inspection of the person
1. Before the completion of inspection of the
person, the one to be inspected shall be handed a copy of inspection
order, making known the right to ask for the presence of a reliant
person, provided that he is found immediately and is appropriate.
2. The inspection is made by respecting the dignity
and the defence of the one under inspection.
Article 205
Inspection of spots
1. The defendant, when present, and the one who
has the place available shall be handed the copy of inspection
order explaining the right to ask for the presence of a reliant
person.
2. When the persons indicated in the paragraph
1 are absent, the copy of the order is handed to a relative, a
neighbour or a person who works with him.
3. The proceeding authority may inspect present
persons when considers that they may hide real evidence or objects
belonging to the criminal offence. It may order that the present
persons shall not leave before the completion of inspection and
the getting forcibly back of the ones who leave.
Article 206
The timing for house inspection
1. The inspection in a dwelling house or in a
closed place near it may not start before seven a.m. and after
twenty p.m. In case of urgency the proceeding authority may, by
written order, decide that the inspection is made exceeding such
time-limits.
Article 207
Sequestration during inspection
1. The objects which are found during the inspection
may be sattached in compliance with provisions on attachment.
S E C T I O N I I I
ATTACHMENT
Article 208
The scope of sequestration
1. The judge or the prosecutor are entitled to
order, by motivated writ, the attachment of real evidence and
objects connected with the criminal offence, when they are indispensable
to reveal the facts.
2. The attachment is carried on by the one who
has issued the writ or by the officers of the judicial police
being authorised by the same writ.
3. The copy of the writ of attachment is handed
to the interested person, if present.
Article 209
Sequestration of correspondence
1. When the court has grounded reasons to think
that in the telegraphic or mail service offices there are letters,
envelopes, boxes, telegrams and other objects of correspondence
sent from or to the defendant, even under other name or through
another person, it orders their sequestration.
2. When the sequestration is made by an officer
of the judicial police he must hand to the judicial authority
the sequestrated objects of the correspondence without opening
and without having got access to them by any other means.
3. The sequestrated objects that are not part
of sequestrable correspondence shall be restituted to the one
they belong and may not be used.
Article 210
Attachment in the banks
1. The court or the prosecutor may order the attachment
of bank documents, stock exchanges, sums deposited in current
accounts and other when there are grounded reasons to think that
they are connected to the criminal offence even when they do not
belong to the defendant or are not in his name.
Article 211
The obligation for delivery and
secrecy
1. The persons obliged to keep the professional
or state secret must immediately hand to the proceeding authority
the acts and documents, even the original ones, and anything else
kept by them because of duty, service or profession, except when
they declare that it is a state secret or a secret related to
their duty or profession. In the last case, the necessary verifications
shall be completed and, when it results that the declaration has
no ground, the proceeding authority orders the sequestration.
2. When the state secret is confirmed by the competent
authority and the proof is essential for the solution of the case
the proceeding authority decides to take the proof.
3. When within thirty days from the request the
competent authority does not confirm the secret, the proceeding
authority orders the attachment.
Article 212
Challange of attachment order
1. The defendant, the person whose objects have
been attached and the one who has the right to ask for them may
appeal the attachment order to the court.
2. The appeal does not suspend the execution of
the decision.
Article 213
The copies of attached documents
1. The preceding authority may order the issue
of copies of attached acts and documents, restituting the originals
and, when the originals must be kept, orders the secretary to
issue authenticated copies.
2. In any case, the person or the office in which
the attachment has been made are entitled to have a copy of the
minutes of attachment.
3. When the attachment document is part of a volume
or of a register and may not be separated and the proceeding authority
needs the original, the volume or the register shall be available
to the proceeding authority. The secretary of the proceeding authority
issues to the interested persons, when they ask, copies, excerpts,
or certificates of parts of the volume or register which have
been not subjected to attachment.
Article 214
Preservation of attached objects
1. The attached objects are preserved in the secretary.
When this is not possible or suitable, the proceeding authority
orders their preservation in another place, specifying the rules
of preservation.
2. During the delivery, the keeper is forewarned
of the obligation of the preservation and of the presentation
of the objects when requested by the proceeding authority and
also of the punishment provided by criminal law for the one who
violates the obligation of preservation.
Article 215
The sealing of attached objects
1. The attached objects are kept by the seal of
the proceeding authority or, depending on the nature of the objects,
by other adequate means, indicating they are preserved for the
needs of the justice.
2. The proceeding authority issues copies of the
documents and photographs or other reproduction of attached objects
which may change or which are difficult to be preserve bringing
them together with the acts and orders their preservation in the
secretary.
3. For the objects which may change, the proceeding
authority orders, as the case requires, their alienation or extermination
.
Article 216
Destruction and the putting on
of seals
1. The proceeding authority, when wants to pull
off seals, makes sure whether they are damaged and when ascertains
any change, keeps minutes. After the action that renders necessary
the putting on of seals is completed, the attached objects are
sealed again, putting the date of the action close to the seal.
Article 217
The restitution of the attached
objects
1. When the maintenance of attachment is not necessary
for reasons of evidence, the attached objects shall be restituted
to the one they belong, even before the final decision is rendered.
When necessary, the proceeding authority orders the bringing back
of the restituted objects.
2. The court may order that the restitution of
the objects shall be not made when, upon request of the prosecutor
or the civil plaintiff, the attachment is needed to provide for
the civil lawsuit.
3. After the decision becomes final, the attached
objects shall be restituted to the person they belong to, except
when confiscation is ordered.
Article 218
Rules of restitution of attached
objects
1. The court decides the restitution of the attached
objects when there is no doubt regarding their pertinence.
2. When the objects have been attached at a third
party, the restitution may not be ordered in the favour of the
others, unless the third party is heard by the court.
3. During the preliminary investigations the restitution
of the attached objects is ordered by the prosecutor. The interested
persons may challange this order to the court.
Article 219
Dispositions in case of failure
to restitute
1. After one year from the day the decision has
become final, if the request for restitution is not submitted
or is rejected, the court which has rendered the decision orders
that the money and stock exchange shall be deposited in the bank,
in a special account. For the objects their sale is ordered, but
when they have scientific or artistic value, shall be transferred
to the relevant institutions.
2. The sale may be ordered even before the time-limit
indicated in the paragraph 1, when the objects may not be preserved
without being damaged or without considerable expenses.
3. The proceeds resulting from sale shall be deposited
in a special bank account.
Article 220
Expenses for attached objects
1. The expenses needed for the preservation of
the attached objects shall be covered by the state, which enjoys
the status of privileged against any other creditor for deposited
sums resulting from objects and unrestituted values.
S E C T I O N I V
INTERCEPTION OF CONVERSATIONS OR
COMMUNICATIONS
Article 221
Limits of permission
1. The interception of conversations or telephone
communication or other forms of telecommunication is permitted
only when it is proceeded for:
a) intentional crimes punishable by imprisonment
not less than five years maximum,
b) crimes connected with arms or explosive matters,
narcotic substances and contraband,
c) criminal offences of insult and threat by phone
call.
Article 222
The decision permitting the interception
1. The court, upon request of prosecutor or injured
accuser, by motivated decision for cases permitted by law and
when it is indispensable for the continuation of investigations.
2. When there are grounded reasons to think that
the delay may bring serious damage to the investigations, the
prosecutor orders the interception by a motivated act and informs
the court immediately, but not later than twenty-four hours. The
judge, within twenty-four hours from the order of the prosecutor,
makes the evaluation by a reasonable decision. In case this is
not made within the fixed time- limit, the interception cannot
continue and its results cannot be used.
3. The order for interception explains the way
it shall be done and the time- limits, which cannot exceed fifteen
days. The court may prolong this time- limit again to another
fifteen days.
4. For the completion of the interception, the
prosecutor acts himself or by an officer of the judicial police.
5. In the register which is recorded by the prosecutor
are noted the acts ordering, authorising, evaluating or prolonging
the supervision, as well as the starting and the termination of
the action of each interception.
Article 223
Actions of interception
1. The actions of interception may be carried
out only through equipments installed in designated spots and
controlled by the district prosecutor.
2. The communications subject to interception
are recorded and the actions are kept in the minutes. The content
of the communications under interception shall be trancripted
in the minutes.
3. The minutes and the records shall be immediately
handed to the prosecutor and within five days from the termination
of the actions they are deposited to the secretary together with
the acts which have ordered, authorised, evaluated or prolonged
the interception. When the investigations may be damaged by such
depositing, the court authorises the prosecutor to postpone the
depositing until the preliminary investigations are completed.
4. The defence lawyers and the attorneys of the
parties shall be immediately informed of the depositing in the
secretary and of their right to examine the acts and to listen
to the records. The court, after hearing the prosecutor and the
defence lawyers, decides on the expurgation of the records and
minutes, which use is prohibited.
5. The court orders the complete transcription
of the records to be taken. The transcriptions shall be put in
the court file. The defence lawyers may obtain copies of transcriptions.
Article 224
The preservation of documentation
1. The minutes and records are preserved in the
office of the prosecutor who has ordered the interception until
the decision becomes final, except those which use is prohibited.
But, when this documentation is not necessary, the interested
persons may request their extermination. This request is subject
to decision of the court that has made the evaluation of interception.
The extermination shall be performed under the control of the
judge and the action shall be kept in the minutes.
Article 225
Use of the results of interception
in other proceedings
1. The results of interception may be used in
other proceedings only in case it is necessary for the investigation
of the crimes which are compulsorily arrestable in the commission.
In such cases, the minutes and the records of interception shall
be submitted to the other proceeding authority.
Article 226
Prohibition of use
1. The results of interception may not be used
when it is not made for cases provided by law or when the provisions
of this section are not observed.
2. There may not be used the interception of the
conversations or communications of the persons who are obliged
to keep the secret because of their profession or duty, except
when those persons have testified to the same facts or they have
divulged them otherwise
3. The court shall order the extermination of
the documentation of interception that may not be used, except
when they constitute real evidence.
T I T L E V
PRECAUTIONARY MEASURES
C H A P T E R I
PERSONAL PRECAUTIONARY MEASURES
S E C T I O N I
GENERAL RULES
Article 227
Classification of precautionary
measures
1. The personal precautionary measures are classified
into coercive measures and interdictive measures.
Article 228
The circumstances for imposing
the precautionary measures
1. No one may be subjected to personal precautionary
measures unless he is suspected of a reasonable suspect, grounded
on evidence.
2. No measure may be imposed under circumstances
of unpunishability or cessation of the criminal offence.
3. The personal precautionary measures shall be
imposed when:
a) there are important causes which threaten the
obtaining or the genuiness of evidence,
b) the defendant has escaped or the danger that
he escapes is evident,
c) due to the circumstances of the fact and the
defendant's personality there is a danger that he may commit serious
crimes or other criminal offences, similar with that he has been
proceeded for.
Article 229
The criteria for imposing personal
precautionary measures
1. When imposes precautionary measures the court
shall consider that any of them is proper and required by the
circumstances.
2. Any measure must meet the importance of the
fact and the punishment provided by law for that criminal offence.
The continuity, recidivism, as well as the mitigating and aggravating
circumstances provided by the Criminal Code shall be also taken
into consideration.
3. When the defendant is a juvenile , the court
shall take into consideration the requirement concerning uninterruption
of the concrete educational programmes.
Article 230
Specific criteria for imposing
jail arrest
1. The jail arrest may be ordered only when any
other measure is not proper because of the special dangerousness
of the offence and defendant.
2. It may not be ordered jail arrest for a pregnant
or a suckling woman, of a person in a particularly grave condition
of health or of a person above seventies or a narkoman or alcoholist,
who is undergoing a therapeutic programme in a special institution.
3. In cases provided by point 2, jail arrest may
be ordered only under circumstances of particular importance for
crimes punishable to not less than a maximum of ten years imprisonment.
Article 231
Replacement or joinder of individual
precautionary measures
1. In case the obligations relating with a precautionary
measure are violated, the court may order its replacement or its
joinder with a more severe measure, taking into consideration
the importance, reasons and circumstances of the violation. In
cases of violation of obligations related to a prohibitive measure,
the court may decide its replacement or its joinder with a coercive
measure.
S E C T I O N I I
COERCIVE MEASURES
Article 232
Types of coercive measures
1. Coercive measures consist of:
a) prohibition to leave the country,
b) compulsion to appear before the judicial police,
c) prohibition and compulsion to abode,
d) patrimonial security,
e) house arrest,
f) jail arrest,
g) temporary hospitalization in a psychiatric
hospital.
Article 233
Prohibition to leave the country
1. By the decision prohibiting to leave the country
the judge orders the defendant to not leave the national albanian
territory without his authorisation.
2. The court determines the necessary duties in
order to guarantee the execution of the decision and to prevent
the use of the passport and any other useful documents of identity
required for leaving the country.
Article 234
Compulsion to appear before the
judicial police
1. By the decision regarding appearance before
the judicial police, the court orders the defendant to appear
to a designated office of the judicial police.
2. The court shall fix the days and the time of
appearance, taking into consideration the workingplace and domicile
of the defendant.
Article 235
Prohibition and compulsion to abode
1. By the decision prohibitting to abode, the
court orders the defendant to not abode and to not go there without
his authorisation.
2. By decision regarding the compulsion to abode,
the court orders the defendant to not leave the territory of the
district or municipality where he usually stays without his authorisation.
When, due to the personality of the defendant or the particularities
of the place, the settlement in this place does not meet the requirements
of security, the compulsion to abode may be ordered for the territory
of another district or municipality.
3. When orders the compulsion to abode, the court
indicates the organ of the police where the defendant must appear
without delay and declare the place where his domicile shall be
located. The court may order the defendant to declare to the police
authorities the time and the places he is going to stay every
day.
4. The police authority shall be informed of orders
of the court in order for them to supervise their execution and
report to the prosecutor any eventual violation.
Article 236
Patrimonial bail
1. The bail of patrimony is the obtaining by the
court of a statement from the defendant or other person to be
trusted, by which they are obliged to pay an amount, deposited
in bank, in case the defendant fails to appear before the proceeding
authority. In case of failure to appear, the amount hereto shall,
by court decision, be transferred into the favour of the state.
Article 237
House arrest
1. By the decision of house arrest, the court
orders the defendant to not leave his domicile or a place he lives
in, is having medical treatment or is being assisted.
2. When necessary, the court shall impose restrictions
or prohibitions to the defendant regarding his communication with
other persons, except with those who live with him.
3. The prosecutor and the judicial police control
the execution of the orders imposed to the defendant.
4. The duration of house arrest is governed by
the same rules applicable to detention.
5. The period of holding in house arrest shall
be considered in the rendering of the conviction.
Article 238
Jail arrest
1. By decision of jail arrest the court orders
the judicial police to capture the defendant and send him immediately
to an institution of detention to be held there available to the
proceeding authority.
2. The period of detention shall be considered
in the rendering of the conviction.
Article 239
Temporary hospitalisation in a
psychiatric hospital
1. When the person to be arrested is mentally
sick and because of this reason he has been limited or lost the
capacity of understanding or conscience, instead of detention,
the court may order his temporary hospitalisation in a psychiatric
institution imposing the necessary measures to prevent the eventual
escape.
2. The hospitalisation may not continue when it
results that the defendant is no longer mentally sick.
S E C T I O N I I I
INTERDICTIVE MEASURES
Article 240
Types of interdictive measures
1. Interdictive measures consist of:
a) suspension from exercise of a public duty or
service
b) temporary prohibition from exercise of specific
professional or business activities.
Article 241
Circumstances under which the interdictive
measures shall be imposed
1. The interdictive measures may be imposed only
when it is proceeded for criminal offence punishable by law to
imprisonment longer than a period of a year as a maximum.
Article 242
Suspension from the exercise of
a public duty or service
1. By the decision ordering the suspension to
exercise of a public duty or service the court prohibits temporarily
the defendant, to entirely or partly the exercise the activity
connected with them.
2. This measure shall not apply to the persons
elected under the election law.
Article 243
Temporary prohibition from the
exercise of specific professional
or business activities
1. By the decision disposing the prohibition to
exercise specific professions or managing duties to legal entities
the judge prohibits temporarily the defendant entirely or partly
to exercise activities connected with them.
C H A P T E R I I
IMPOSITION AND EXECUTION OF THE
PRECAUTIONARY MEASURES
Article 244
The request for the imposition
of precautionary measures
1. The precautionary measures are imposed upon
request of the prosecutor who presents to the competent court
the grounds on which the request is motivated.
2. Even when the court declares its incompetence
for any reason, under the required circumstances and the urgency
for the imposition of the measure it shall impose it and shall
send the acts to the competent court.
Article 245
The decision of the court
1. The decision imposing the precautionary measure
shall comprise:
a) the personal data of the person subject to
the measure or anything else which helps to identify him and,
when possible, the indication of the place he stands;
b) a summarised description of the fact, indicating
the articles of the law considered to be violated;
c) the presentation of the special causes and
of the data which legally justify the precautionary measure;
d) the determination of the duration of the measure
when this is ordered to secure the acquiring or the genuiness
of the evidence;
f) the date, signature of the chairman of the
panel, of the assisting secretary and the seal of the court,
otherwise it shall be deemed null and void.
Article 246
The execution of the precautionary
measures
1. The officer or the agent of the police in charge
of execution of the decision of arrest shall deliver to the person
subject to the measure the copy of the decision and makes him
known the right to choose a defence lawyer, gives immediate notification
to the defence lawyer chosen by the defendant or the one appointed
ex-officio and keeps minutes for all of the carried on actions.
The minutes is sent to the court which has rendered the decision
and to the prosecutor.
2. In case ofdoubts towards the judge who has
issued the order or towards the person subjected to the measure,
the officers and agents in charge do not execute it.
3. The court shall notify the defendant of the
decisions imposing other precautionary measures.
4. After their notification or execution, the
decisions shall be deposited in the secretary of the court which
has rendered them. The depositing shall be also notified to the
defence lawyer shall be also notified.
5. The copy of the decision imposing a interdictive
measure is sent to the authority which is competent to impose
such a measure in ordinary cases.
6. For every three months from the execution of
the decision of arrest the judge must be informed from the prosecutor
for the arrested. When there is the case the judge may revoke
or replays the precautionary measure.
Article 247
The searching for the person who
is not found
1. When the person subject to the measure is not
found the officer or the agent of the judicial police keeps a
minutes in which shall explain the searches and sends it to the
judge who has rendered the decision.
2. When the judge considers that the searches
have been complete he declares the escape of the person.
3. By the act declaring the escape the judge appoints
a defence lawyer to the escaped person and orders that the copy
of the decision imposing the unexecuted measure is deposited in
the secretary.
4. The escaped shall be equated for any effect
to the one who escapes from the place under watch.
5. To facilitate the search for the escaped person
the judge may order the interception of telephone conversation
and of other forms of communication.
Article 248
Interrogation of the arrested person
1. Not later than three days from the execution
of the measure the court interrogates the person subjected to
jail or house arrest.
2. Through the interrogation the court verifies
the terms of the application of the arrest and the necessities
of the security. When this terms do not exist the court decides
to revoke or replace the measure.
3. The interrogation shall be held with the participation
of the prosecutor and the defence lawyer who are notified by the
secretary of the court.
4. When the interrogation of the arrested person
must be held in the district of another court, the court demands
that the interrogation is made by a judge of that court.
Article 249
The appeal against precautionary
measures
1. Within ten days from the execution or the notification
of the decision of the court, the prosecutor, the defendant and
his defence lawyer may, for violation of law, appeal directly
the decision imposing precautionary measure to the Court of Cassation.
2. For the escaped defendant the time-limit starts
effectively from the date of the notification made under article
141.
3. The appeal is submitted to the secretary of
the court of appeal or to the Court of Cassation.
4. The date fixed for the hearing is notified
to the prosecutor, defendant and his defence lawyer at least three
days before.
5. The appeal is examined within ten days from
its submission .
6. The court decides, as the case may be, the
abrogation, the alteration or the approval of the decision even
for causes different from those explained or those comprised in
the reasoning part of the decision.
7. When the decision is not announced or not executed
within the fixed time-limit the act under which the coercive measure
has been imposed shall become not valid.
8. The decision of the court of appeal, for violation
of law, is subject to appeal to the court of Cassation.
9. On expiry of six months from the execution
of the decision of arrest the defendant and his defence lawyer
may appeal to the Court of Cassation for the prolongation of the
detention.
10. The Court of Cassation renders a decision
within fifteen days from the reception of the acts.
Article 250
The assessment of the duration
of the measures
1. The effects of the detention start effectively
from the moment of the arrest or detention.
2. When the defendant is detained for another
criminal offence the effects of the measure shall start effectively
from the date of the notification of the decision.
3. The effect of the other measures start effectively
from the moment in which the decision is notified.
4. When a defendant has undergone several decisions
imposing the same measure for the same fact the time-limits shall
start effectively from the day on which the first one has been
executed or notified.
C H A P T E R I I I
THE ARREST IN THE COMMISSION AND
THE DETENTION
Article 251
The arrest in the commission
1. The officers and the agents of the judicial
police perform compulsory the arrest of anyone caught the commission
of an intentional crime, committed or attempted punishable by
law by imprisonment not less than three years as a minimum.
2. The officers and the agents of the judicial
police have the right to arrest anyone caught in the commission
of an intentional crime, committed or attempted punishable by
law by imprisonment not less than five years as a maximum or of
a criminal offence committed by negligence punishable by law not
less than ten years as a maximum.
3. In case of the very necessity, because of the
importance of the fact or dangerousness of the offender, which
is motivated by a special act, the officers and agents of the
judicial police have the right to arrest anyone caught in the
commission even when the circumstances of the paragraph 2 do not
exist.
4. In cases provided by paragraph 1 any person
is authorised to perform the arrest in the commission for crimes
prosecutable ex-officio. The one who has performed the arrest
must immediately send the arrested person to the judicial police
who keep minutes for the surrender and gives him a copy.
Article 252
The state of the commission
1. There is in a state of commission the one who
is caught whilst committing the criminal offence or the one who
immediately after the commission of the offence is traced by the
judicial police, the injured person or other persons or the one
who is caught with objects and real evidence which indicate that
he has committed the criminal offence.
Article 253
The detention of the person suspected
to have committed a crime
1. When there are motivated grounds to think that
there is a danger of escape, the prosecutor orders the detention
of the person suspected to have committed a crime punishable by
law by imprisonment not less than two years as minimum.
2. The judicial police performs the detention
by its initiative, when it is not possible due to the situation
of urgency, to wait for the order of the prosecutor.
Article 254
Prohibition to arrest and detention
under specific circumstances
1. The arrest or detention are not permitted when
under the circumstances of the fact it results that the action
has been made on duty or on exercise of a lawful right or when
a cause of unpunishability does not exist.
Article 255
The duties of the judicial police
in cases of arrest or detention.
1. The officers and the agents of the judicial
police that have made an arrest or a detention or have held the
arrested on delivery, shall immediately inform the prosecutor
of the place where the arrest or the detention has taken place.
They shall explain to the arrested or the detained the right to
select a defence lawyer and immediately shall notify the selected
defence lawyer or the one appointed ex-officio by the prosecutor.
2. The officers and agents of the judicial police
shall, as quickly as possible, make the arrested or detained person
available to the prosecutor in the custody, but still not later
than twenty-four hours from the arrest or the detention, by sending
the relevant minutes. When these time-limits are not observed,
the arrested or the detained is released.
3. When the arrested or the detained is sick or
a juvenile, the prosecutor may order that he remains under survey
in his dwelling house or in another surveyed place.
4. The judicial police, with the consent of the
arrested or the detained must, without delay, notify the family
members. When the arrested or the detained is juvenile it shall
compulsorily be notified the parent or the tutor.
Article 256
The interrogation of the arrested
or the detained
1. The prosecutor interrogates the arrested or
the detained in the presence of the selected or appointed ex-officio
defence lawyer. He shall notify the arrested or the detained the
fact for which he is being proceeded and the reasons of the interrogation,
making known the information on his charge and, when the investigation
are not impaired, even the sources.
Article 257
Cases of immediate release of the
arrested or the detained
1. When it is evident that the arrest or the detention
are made because the person is confounded or the requirements
of the law are not respected or when the measure of arrest or
detention have lost their effect becauseof the violation of the
time-limits regarding notification of the prosecutor or the request
for the evaluation of the measure the prosecutor orders, by motivated
decision, that the arrested or the detained is released immediately.
In these cases the release is ordered even by the officer of the
judicial police, who informs immediately the prosecutor of the
place of the arrest or detention.
Article 258
The request for the evaluation
of the arrest or detention
1. When does not order the immediate release,
the prosecutor, within forty-eight hours from the arrest or detention,
demands the evaluation of the measure in the court of the place
of the arrest or detention. Failure to meet this time-limit makes
the arrest or detention null and void.
2. The court fixes the hearing for the evaluation
as quickly as it can but still within forty-eight forthcoming
hours, giving notice to the prosecutor and the defence lawyer.
Article 259
The hearing for evaluation
1. The hearing for evaluation is held in the compulsory
presenceof the prosecutor and defence lawyer. When the selected
or appointed ex-officio defence lawyer is not found or appeared
the court appoints as substitute another defence lawyer.
2. The prosecutor explains the causes of the arrest
or the detention. After this the court hears the arrested or the
detained and the defence lawyer or only the latter, in case the
arrested or the detained has refused to appear.
3. When it results that the arrest or the detention
have been executed lawfully the court renders a decision on the
evaluation of the measure. The decision of the court may be appealed
directly or indirectly to the Court of Cassation by the prosecutor
or the arrested or detained.
4. When the arrest or the detention is unlawful
the court decides the immediate release of the arrested or the
detained. The decision may be appealed directly or indirectly
by the prosecutor.
5. The arrest or the detention shall loose the
effects when the decision of the court for the evaluation is not
announced within forty-eight forthcoming hours starting from the
moment in which the arrested or the detained has been available
to the court.
C H A P T E R I V
REVOCATION AND CESSATION OF THE
PRECAUTIONARY MEASURES
Article 260
Revocation and replacement of precautionary
measures
1. The coercive and interactive measures are immediately
revoked when it results that the requirements and the criteria
for their execution are missing.
2. When the necessity of the security is smoothened
or when the executed measure no longer fits with the importance
of the fact or of the punishment which may be imposed the court
shall commute the measure.
3. When the necessity of the security are aggravated
the court upon request of the prosecutor shall replace the executed
measure with a heavier one.
4. The request of the prosecutor or the defendant
for the revocation or the replacement of the measure shall be
examined by the court within five days from its depositing. When
the case requires the court decides even ex-officio during the
proceedings for the incident of proof or during the trial.
Article 261
Terminationof precautionary measures
1. The precautionary measures shall cease when
:
a) the same fact and against the same person has
been dismissed or the person has been acquitted.
b) the imposed decision is declared dismissed
or is suspended.
c) the duration of the served detention exceeds
the limits of the imposed punishment
d) after the expiry of the time-limit provided
by article 245 paragraph 1 letter d has been not ordered the renewal
, within the limits provided by articles 264 and 267.
2. The detention ordered during preliminary investigations
shall loose effect in case the court does not proceed with interrogation
within the time-limit provided by article 248
3. The cessation of the precautionary measures
does not hinder the exercise of the rights that the law recognizes
to the court or any other authority regarding the application
of supplementary punishments or other interdictive measures.
Article 262
The consequences of the termination
of precautionary measures
1. When the arrest shall loose effect, the court
decides the immediate release of the person who has been subjected
to the measure.
2. In cases the other precautionary measures loose
effect the court decides their immediate abolition.
Article 263
The time-limit of the duration
of the detention
1. The detention shall loose effect in case from
its execution haveexpired the following time-limits without being
submitted the acts to the court:
a) three months when it is proceeded for a criminal
contravention;
b) three months when it is proceeded for a criminal
offence,
c) twelve months when it is proceeded for organised
crimes and committed by bands.
2. The detention shall loose effect in case from
the day of the submission of the acts to the court have expired
the following time-limits without having the sentence rendered
in the first instance:
a) one month when it proceeded for criminal contraventions;
b) three months when it is proceeded for a crime;
c) six months when it is proceeded for organised
crimes and committed by bands.
3. The detention shall loose effect in case from
the rendering of the sentence in the first instance have expired
the following the time-limits without having the sentence rendered
by the court of appeal:
a) one month when it is proceeded for a criminal
contravention;
b) two months when it is proceeded for a crime;
c) three months when it is proceeded for organised
crimes and committed by bands.
4. In case the sentence is nullified by the Court
of Cassation and the case is sent to another court, the time-limits
shall start again according to the rules provided for each instanceof
the proceedings.
5. In case of escape of the detained defendant
the time-limits shall start again from the moment he is held detained
again.
6. The entire duration of the detention , considering
also the prolongation provided by article 264 paragraph 2, may
not exceed the following time-limits:
a) six months when it is proceeded for a criminal
contravention;
b) one year when it is proceeded for a crime;
c) two years when it is proceeded for organised
crimes and committed by bands.
Article 264
The prolongation of the detention
period
1. In any stage and instance of the proceedings,
when it has been ordered the expertise of the mental condition
of the defendant the time-limits of the detention shall be prolonged
for the time provided for the completion of expertise. The prolongation
is decided by the court, upon request of the prosecutor, after
the defence lawyer being heard. The decision may be appealed directly
or indirectly to the Court of Cassation.
2. During the preliminary investigations the prosecutor
may demand the prolongation of time-limits of detention which
are about expiring, under important necessity of security and
the examinations specifically complex require such a prolongation.
After hearing the prosecutor and the defence lawyer the court
renders a decision. The prolongation may be repeated only once
and may not exceed one month.
3. The duration of detention may not exceed the
half of the maximum provided for the criminal offence under proceedings.
Article 265
The suspension of the time-limits
of detention
1. The time-limits provided by article 263 shall
be suspended in the following cases:
a) as long as the court examination is suspended
or postponed because of the absence of the defendant or his defence
lawyer.
b) as long as the judicial examination is suspended
or postponed because of failure to appear or abandonment of one
or more defence lawyers.
Article 266
Dispositions in cases of release
from prison
1. The court, when there are still the requirements
for which the detention was imposed, shall impose other precautionary
measures to the defendant who is released from the prison because
of expiry of the time-limits, in case there are the required conditions.
2. The detention, when necessary, shall become
again effective:
a) When the defendant has intentionally violated
the orders in relation to a precautionary measure imposed as provided
by paragraph 1, but still when the necessity of the security does
exist.
b) By the conviction, when the security provided
by article 228, paragraph 3 calls for.
3. By the renewal of the detention the time-limits
shall start again but, the previous served detention shall be
assessed when the whole duration shall be calculated.
4. The officers and agents of the judicial police
may hold the defendant who escapes, violating the orders related
with precautionary measure imposed under the paragraph one.
There shall apply, as long as they comply with,
the provisions regarding the holding of the person suspected to
have committed the criminal offence.
Article 267
Maximal duration of other precautionary
measures
1. The coercive measures different from detention
shall loose effects when since the commencement of their execution
has passed a time equal to twofold of the time-limits provided
by article 263.
2. The interdictive measures shall loose effect
when three months since their execution have passed. When they
have been imposed in order to not damage the proofs, the court
may order their repetition up to the limits provided by paragraph
1.
C H A P T E R V
THE COMPENSATION FOR UNFAIR IMPRISONMENT
Article 268
The condition of application
1. The one who is found`innocent by final sentence
is entitled to compensation for the served detention, except when
it is proven that the wrong sentence or failure to discover the
unknown fact in due time has been caused entirely or partly by
himself.
2. The same right shall have the punished who
has been detained, when it is proven by a final decision that
the act by which the measure has been imposed is issued when the
requirements provided by articles 228 and 229 are inexistent.
3. The provisions of paragraph 1 and 2 shall also
apply to the favour of the person for whom the court or the prosecutor
has decided the dismissal of the case.
4. When it is proven by court decision that the
fact is not provided as a criminal offence by law, because of
abrogation of the relevant, the right to compensation is not recognized
for that part of the detention served before the abrogation.
Article 269
The request for compensation
1. The request for compensation must be presented
within three years from the date the decision of acquittal or
dismissal of the case has become final, otherwise it is not accepted.
2. The amount of the compensation and the way
of its assessment, as well as cases of compensation for the house
arrest, are determined by special law.
C H A P T E R V I
PATRIMONIAL PRECAUTIONARY MEASURES
S E C T I O N I
THE PRESERVATIVE ATTACHMENT
Article 270
The circumstances and the effects
of the measure
1. When motivated reasons to believe that the
defendant does not guarantee the payment of fine penalty, expenses
of the proceedings and any other obligation to the state patrimony
exist, the prosecutor demands the preservative attachment to the
real estate or movable property of the defendant or to the deposits
or objects that the others owe him, within the limits permitted
by law for the same.
2. The civil plaintiff may demand the preservative
attachment to the property of the defendant or the civilly sued
under the circumstances provided by paragraph 1.
3. The attachment imposed by request of the prosecutor
shall also apply to the civil plaintiff.
Article 271
The court decision regarding attachment
1. The preservative attachment is ordered by the
competent court.
2. When a decision in the first instance has been
rendered, the attachment is imposed before the acts are sent to
the court of appeal.
3. The attachment is executed by the court bailiff
under the rules provided by Civil Procedural Code.
4. The effects of the attachment shall terminate
when the decision of acquittal or dismissal of the case becomes
final.
Article 272
Offer of security bond
1. When the defendant or the civilly sued offers
a suitable legal means to guarantee the debt (pledge, deposit,
pawn, mortgage) the court shall not impose the preservative attachment
or it revokes it and shall determine the way of payments of the
debt.
2. When the offer is proposed along with the lawsuit,
the court revokes the attachment if considers that the offer of
bond is in proportion with the value of the attached objects.
Article 273
The execution of the attachment
1. The preservative attachment is altered in executable
attachment when the decision of fine penalty or the one which
orders the defendant and the civilly suit to compensate the damage
has become final.
2. The compulsory forfeiture of the attached property
shall be made under the rules provided by the Civil Procedural
Code. From incomes of sale of attached property and from those
of means offered to pay the debt shall be paid, respectively,
the amounts pertaining to civil plaintiff for compensation of
the damage and court expenses, fine penalties, the expenses of
the proceedings and any other amount in the favour of the state.
S E C T I O N I I
PREVENTIVE ATTACHMENT
Article 274
The scope of the preventive attachment
1. When there is a danger that free possession
of an object related to the criminal offence may aggravate or
prolong its consequences or facilitate the commission of other
criminal offences the competent court, on demand of the prosecutor,
orders its attachment by reasoned decision.
2. The attachment may be also ordered for objects
which are permitted to be confiscated .
3. When the circumstances of execution change,
the court, on demand of the prosecutor or interested person, nullifies
the attachment.
Article 275
Loss of effects of attachment
1. By the decision of acquittal or dismissal of
the case the court or prosecutor order the restitution of the
attached objects to the onee they belong, when it must not order
their confiscation as being used or assigned to commit a criminal
offence or because they have been produced or profited from the
criminal offence.
2. When the conviction has been rendered, the
effect of the attachment shall continue if the decision orders
the confiscation of the attached objects.
3. The attached object shall not be restituted
when the court decides that the attachment shall be held to guarantee
the credits.
Article 276
The appeal against the decision
1. The decision imposing or not imposing the attachment
may be appealed by any interested person.
2. The appeal is submitted within ten days from
the rendering of the decision or from the day the interested has
been notified the imposed attachment.
3. The appeal is submitted to the secretary of
the court which has rendered the decision.
4. The appeal does not suspend the execution of
the measure.
5. The appeal is subject to the decision of the
court of appeal within fifteen days from the reception of the
acts.
6. The court decides, as the case may be, the
nullification, the alteration or the approval of the appealled
decision.
7. When the decision is not announced or not executed
within the fixed time-limit, the act imposing the attachment shall
loose the effects.
P A R T I I
T I T L E V I
PRELIMINARY INVESTIGATIONS
C H A P T E R I
GENERAL PROVISIONS
Article 277
The authorities assigned to conduct
the preliminary investigations
1. The prosecutor and the judicial police conduct,
within specified competency, necessary investigations connected
with the criminal prosecution.
2. The prosecutor leads the investigations and
avails himself of the judicial police.
Article 278
The competency of the court during
the preliminary investigations
1. During the preliminary investigations, which
are held on demand of the prosecutor, defendant, injured and private
parties, in cases provided by law, the court is entitled to discretion.
Article 279
The obligation to keep the secret
1. The investigations are secret until the defendant
has not received any information of them. In need of continuation
of the investigations the prosecutor may order the keeping of
secret of special acts until the investigations go to an end.
2. The prosecutor may allow, by a motivated decision,
the publication of special acts or of their parts. The published
acts shall be deposited in the secretary of the prosecutor.
C H A P T E R I I
BECOMING AWARE OF THE CRIMINAL
OFFENCE
Article 280
Becoming aware of the criminal
offence
1. The prosecutor and the judicial police become
aware of the criminal offence ex-officio and by others information.
Article 281
Indictment by public officials
1. The public officials, who during the exercise
of the duty or due to their position or service, become aware
of a criminal offence prosecutable ex-officio, are obliged to
make a written indictment even when the person to whom is attributed
the criminal offence has been not identified.
2. The indictment is presented to the prosecutor
or an officer of the judicial police.
3. When, during the civil or administrative proceedings,
it is discovered a fact which constitute a criminal offence which
is prosecutable ex-officio, the relevant authority presents the
indictment to the prosecutor.
4. The indictment consists of essential elements
of the fact, the sources of evidence, personal details, the residence
and anything else which leads to the identification of the person
whom is attributed the fact, the injured person and the ones who
are able to explain the circumstances of the fact.
Article 282
Indictment from the medical personnel
1. The medical personnel that is legally bound
to indict, must present the indictment within fourty- eight hours
and send it to the prosecutor or any officer of the judicial police
of the place where he has intervened or has provided the assistance
and, when the delay may bring any danger, to the officer of the
nearest judicial police.
2. The indictment from medical personnel indicates
the person who has been provided the assistance and, when possible,
the personal details, his domicile and anything else of value
to identify him, the circumstances of the fact, the means used
to commit it and the consequences.
3. When several persons have provided their medical
assistance for the same case, all of them are obliged to make
indictment, having the right to compile and sign a sole act.
Article 283
Indictment from citizens
1. Any person that has become aware of a criminal
offence prosecutable ex-officio must indict of it. In cases specified
by law the indictment is compulsory.
2. The indictment is presented to the prosecutor
or to an officer of the judicial police orally or in writing,
personally or through an attorney.
3. Anonymous indictments may not be used except
in cases provided by article 195.
Article 284
The action
1. For the criminal offences provided by articles
85, 89, 102 first paragraph, 105, 106, 130, 239, 240, 241, 243,
264, 275 and 318 of the Criminal Code, the prosecution may start
only by indictment brought by the injured, who may withdraw the
same at any stage of the proceedings.
2. The injured brings the indictment before the
prosecutor or the judicial police by means of a statement in which,
personally or through the special attorney, it is expresed the
willingness to proceed for a fact provided by law as a criminal
offence.
3. When the indictment is made orally the relevent
minutes is signed by the plaintiff or his attorney.
4. The one who receives the indictment, after
being certain of the identity of the plaintiff sends the acts
to the prosecutor.
5. In cases provided by article 59, the indictment
is brought before the court by the injured accuser.
Article 285
The renouncement from the right
to indictment
1. The renouncement from the right of indictment
is made personally or through the attorney by a signed statement
or orally before the prosecutor or the officer of the judicial
police who keeps minutes, which must be compulsorily signed by
the author.
2. Timely or conditional renouncement is not valid.
3.The same statement may also contain the renouncement
from the civil lawsuit.
Article 286
Withdrawal of the indictment
1. The withdrawal of the indictment is made personally
or through the attorney by a statement presented to the proceeding
authority.
2. The withdrawal of indictment may be presented
in any stage of the proceedings, until the decision of the court
has become final.
3. The expences of the proceedings shall be in
charge of the one who withdrows the action, except when the act
of withdrawal has provided, by agreement, that they are entirely
or partly in charge of the one subject to action.
Article 287
The registration of the notification
of the criminal offences
1. The prosecutor keeps in the register every
notification of the criminal offence which is presented or obtained
by him ex-officio and at the same time or from the moment of its
coming out, the name of the person to whom is attributed the criminal
offence.
2. It shall be prohibitted the publication of
the registrations made until the person to whom is attributed
the criminal offence is held as a defendant.
C H A P T E R I I I
THE REQUIREMENTS OF THE PROCEEDINGS
Article 288
Authorisation to proceed
1. When autorisation to proceed is required, the
prosecutor presents a request to the competent authority. The
request asking authorisation to proceed must be presented within
thirty days from the registration in the register of the name
of the person for which the authorisation is required. When he
has been arrested in the commision the authorisation is requested
immediately and, in any case, before the hearing of evaluation.
Article 289
Prohibition to proceed
1. Until the authorisation to proceed is issued,
it shall not be permitted the detention, the imposition of precautionary
measures, inspection, inspection of the person, recognition, confrontation,
and interception of conversations and communication related to
the person for whom the authorisation is required. He may be interrogated
only if he desires it.
2. When it is proceeded against several persons
and for some of them the authorisation is not required and the
issue of this is delayed, it may be proceeded only against the
defendants for whom the authorisation is not required.
Article 290
The circumstances not permitting
the initation of the proceedings
1. The prosecution may not iniciate and, if initiated,
must be dismissed in any stage of the proceedings when:
a) the person has died;
b) the person is irresponsible or has not reached
the ageof criminal responsability;
b) there is no action of the injured or he withdraws
the action.;.
d) the fact is not provided by law as criminal
offence or is evident that the fact does not exist;
e) the criminal offence has ceased;
f) an amnesty has been announced;
g) in all other cases provided by law.
Article 291
Decision dismissing the proceedings
1. Under circumstances which does not permit the
initiation of the proceedings, the prosecutor renders a motivated
decision dismissing the proceedings.
2. The decision is notified immediately to those
who have presented an indictment or an action, who may appeal
it to the court within five days from the notification of the
same.
Article 292
Renewal of the prosecution
1. The decision dismissing the proceedings, termination
or of acquital, rendered due to inexistence of an action to proceed
or the request for authorisation to proceed do not hinder the
exercise of prosecution for the same fact and against the same
person, when after the action is brought, the authorisation is
issued or the personal circumstance which made the authorisation
necessary, no longer exist.
C H A P T ER IV
INVOLVEMENT EX UFFICIO
OF THE JUDICIAL POLICE
Article 293
The reporting of the criminal offence
to the prosecutor
1. After receiving notice of the criminal offence
the judicial police, without delay, reports, in writing, to the
prosecutor, the essential elements of the fact and the other elements
which are gathered until this moment. It notifies, when possible,
the identity, the domicile and everything which is valid for the
identification of the person who is under investigations, the
injured person and they who are able to give evidence of the circumstances
of the fact.
2. In case of urgency and in cases of serious
crimes, the notification is made immediately even orally.
3. Through the notification, the judicial police
notifies the day and hour when it has become aware of the criminal
offence.
Article 294
The provision for sources of evidence
1. Even after reporting the criminal offence,
the judicial police continues to carry out the functions mentioned
in article 30, gathering every valid element for the reproduction
of the fact and for the individualisation of the guilty. It proceeds
particularly:
a) In searching and fixing of the objects and
traces of the criminal offence, as well as preserving them and
the scene of the crime until this is necessary;
b) In searching and interrogating the persons
who are able to explain the circumstances of the fact.
c) In carrying out of the actions provided by
the following articles.
2. After the intervention of the prosecutor, the
judicial police carries out the actions which are particularly
delegated by the prosecutor, as well as all the urgent actions
to reveal the criminal offence.
3. The judicial police, when carries out the actions
which require special technical knowledge, may appoint an expert,
which cannot refuse the assignment.
Article 295
The identification of the person
under investigation
1. For the identification of the person under
investigation the judicial police carries out all the necessary
actions, including the acquisition of finger-prints, photographic
and antropometric examination.
2. When he refuses to identify or presents personal
data or identity cards which are suspected to be false, the judicial
police accompanies him to its offices and holds him there until
is necessary for the identification, but not longer than twelve
hours.
3. The accompaniment and the release shall be
immediately informed to the prosecutor.
Article 296
Data on the person under investigation
1. The officers of the judicial police collect
data on the person under investigation, in the compulsory presence
of his defence lawyer.
In case the defence lawyer is not found or fails
to appear, the judicial police demands the prosecutor to appoint
another defence lawyer.
2. In the scene of the crime or in evident criminal
offences the officers of the judicial police, even in absence
of the defence lawyer, may acquire from the person under investigation,
even if arrested in the commission or detained, data which are
necessary to continue the investigation.
3. The judicial police may acquire statements
from the person under investigation, but their use in the trial
shall not be permitted, except when the content of the deposition
is challenged.
Article 297
The acquiring of other data
1. The judicial police acquires summarized data
from the persons who may throw light to the circumstances that
go to the targets of the investigation.
2. Provisions of articles from 155 to 160 shall
apply.
Article 298
Inspection
1. In case of commission or escape the officers
of the judicial police carry on inspection of the person or premises
when they have grounded reasons to think that the person hides
objects or traces of the criminal offence which may disappear
or be lost or that this objects or traces are in a said place
or over the place where the person under investigation or escaped
is found.
2. When a detention must be executed, a decision
of arrest or a conviction to imprisonment must be enforced, the
officers of the judicial police may carry on the inspection of
the person or premises. When the conditions of paragraph 1 do
exist and there are particular reasons of urgency that does not
permit the issue of a writ of inspection. When any delay may impair
the successful termination of investigation, the inspection of
the premises may be carried out even out of the time-limits provided
by article 206.
3. The minutes of the completed actions shall
be sent, without delay, but not later than fourtyeight hours,
to the prosecutor of the place where this inspection was made
who, within fourtyeight consecutive hours, shall evaluate the
inspection.
Article 299
The taking of sealed envelopes
and correspondence
1. When the proceedings require the taking of
envelopes sealed or closed by any other means, the officer of
the judicial police shall send them untouched to the prosecutor
for any eventual attachment. In case there are grounded reasons
to think that the sealed envelopes contain data which may be lost
due to delay, the officer of the judicial police informs, by the
most rapid means, the prosecutor who may authorize the immediat
opening.
2. For letters, envelopes, packages, patrimonial
and monetary values, telegrams or other means of correspondence
for which attachment is permitted, the officers of the judicial
police, in case of urgency, order the person on duty in the post
office to suspend the dispatching. In case within fourtyeight
hours from the order of the judicial police the prosecutor does
not order the attachment, the objects of the correspondence shall
be forwarded to the destination.
Article 226
Prohibition of use
1. The results of interception may not be used
when it is not made for cases provided by law or when the provisions
of this section are not observed.
2. There may not be used the interception of the
conversations or communications of the persons who are obliged
to keep the secret because of their profession or duty, except
when those persons have testified to the same facts or they have
divulged them otherwise
3. The court shall order the extermination of
the documentation of interception that may not be used, except
when they constitute real evidence.
T I T L E V
PRECAUTIONARY MEASURES
C H A P T E R I
PERSONAL PRECAUTIONARY MEASURES
S E C T I O N I
GENERAL RULES
Article 227
Classification of precautionary
measures
1. The personal precautionary measures are classified
into coercive measures and interdictive measures.
Article 228
The circumstances for imposing
the precautionary measures
1. No one may be subjected to personal precautionary
measures unless he is suspected of a reasonable suspect, grounded
on evidence.
2. No measure may be imposed under circumstances
of unpunishability or cessation of the criminal offence.
3. The personal precautionary measures shall be
imposed when:
a) there are important causes which threaten the
obtaining or the genuiness of evidence,
b) the defendant has escaped or the danger that
he escapes is evident,
c) due to the circumstances of the fact and the
defendant's personality there is a danger that he may commit serious
crimes or other criminal offences, similar with that he has been
proceeded for.
Article 229
The criteria for imposing personal
precautionary measures
1. When imposes precautionary measures the court
shall consider that any of them is proper and required by the
circumstances.
2. Any measure must meet the importance of the
fact and the punishment provided by law for that criminal offence.
The continuity, recidivism, as well as the mitigating and aggravating
circumstances provided by the Criminal Code shall be also taken
into consideration.
3. When the defendant is a juvenile , the court
shall take into consideration the requirement concerning uninterruption
of the concrete educational programmes.
Article 230
Specific criteria for imposing
jail arrest
1. The jail arrest may be ordered only when any
other measure is not proper because of the special dangerousness
of the offence and defendant.
2. It may not be ordered jail arrest for a pregnant
or a suckling woman, of a person in a particularly grave condition
of health or of a person above seventies or a narkoman or alcoholist,
who is undergoing a therapeutic programme in a special institution.
3. In cases provided by point 2, jail arrest may
be ordered only under circumstances of particular importance for
crimes punishable to not less than a maximum of ten years imprisonment.
Article 231
Replacement or joinder of individual
precautionary measures
1. In case the obligations relating with a precautionary
measure are violated, the court may order its replacement or its
joinder with a more severe measure, taking into consideration
the importance, reasons and circumstances of the violation. In
cases of violation of obligations related to a prohibitive measure,
the court may decide its replacement or its joinder with a coercive
measure.
S E C T I O N I I
COERCIVE MEASURES
Article 232
Types of coercive measures
1. Coercive measures consist of:
a) prohibition to leave the country,
b) compulsion to appear before the judicial police,
c) prohibition and compulsion to abode,
d) patrimonial security,
e) house arrest,
f) jail arrest,
g) temporary hospitalization in a psychiatric
hospital.
Article 233
Prohibition to leave the country
1. By the decision prohibiting to leave the country
the judge orders the defendant to not leave the national albanian
territory without his authorisation.
2. The court determines the necessary duties in
order to guarantee the execution of the decision and to prevent
the use of the passport and any other useful documents of identity
required for leaving the country.
Article 234
Compulsion to appear before the
judicial police
1. By the decision regarding appearance before
the judicial police, the court orders the defendant to appear
to a designated office of the judicial police.
2. The court shall fix the days and the time of
appearance, taking into consideration the workingplace and domicile
of the defendant.
Article 235
Prohibition and compulsion to abode
1. By the decision prohibitting to abode, the
court orders the defendant to not abode and to not go there without
his authorisation.
2. By decision regarding the compulsion to abode,
the court orders the defendant to not leave the territory of the
district or municipality where he usually stays without his authorisation.
When, due to the personality of the defendant or the particularities
of the place, the settlement in this place does not meet the requirements
of security, the compulsion to abode may be ordered for the territory
of another district or municipality.
3. When orders the compulsion to abode, the court
indicates the organ of the police where the defendant must appear
without delay and declare the place where his domicile shall be
located. The court may order the defendant to declare to the police
authorities the time and the places he is going to stay every
day.
4. The police authority shall be informed of orders
of the court in order for them to supervise their execution and
report to the prosecutor any eventual violation.
Article 236
Patrimonial bail
1. The bail of patrimony is the obtaining by the
court of a statement from the defendant or other person to be
trusted, by which they are obliged to pay an amount, deposited
in bank, in case the defendant fails to appear before the proceeding
authority. In case of failure to appear, the amount hereto shall,
by court decision, be transferred into the favour of the state.
Article 237
House arrest
1. By the decision of house arrest, the court
orders the defendant to not leave his domicile or a place he lives
in, is having medical treatment or is being assisted.
2. When necessary, the court shall impose restrictions
or prohibitions to the defendant regarding his communication with
other persons, except with those who live with him.
3. The prosecutor and the judicial police control
the execution of the orders imposed to the defendant.
4. The duration of house arrest is governed by
the same rules applicable to detention.
5. The period of holding in house arrest shall
be considered in the rendering of the conviction.
Article 238
Jail arrest
1. By decision of jail arrest the court orders
the judicial police to capture the defendant and send him immediately
to an institution of detention to be held there available to the
proceeding authority.
2. The period of detention shall be considered
in the rendering of the conviction.
Article 239
Temporary hospitalisation in a
psychiatric hospital
1. When the person to be arrested is mentally
sick and because of this reason he has been limited or lost the
capacity of understanding or conscience, instead of detention,
the court may order his temporary hospitalisation in a psychiatric
institution imposing the necessary measures to prevent the eventual
escape.
2. The hospitalisation may not continue when it
results that the defendant is no longer mentally sick.
S E C T I O N I I I
INTERDICTIVE MEASURES
Article 240
Types of interdictive measures
1. Interdictive measures consist of:
a) suspension from exercise of a public duty or
service
b) temporary prohibition from exercise of specific
professional or business activities.
Article 241
Circumstances under which the interdictive
measures shall be imposed
1. The interdictive measures may be imposed only
when it is proceeded for criminal offence punishable by law to
imprisonment longer than a period of a year as a maximum.
Article 242
Suspension from the exercise of
a public duty or service
1. By the decision ordering the suspension to
exercise of a public duty or service the court prohibits temporarily
the defendant, to entirely or partly the exercise the activity
connected with them.
2. This measure shall not apply to the persons
elected under the election law.
Article 243
Temporary prohibition from the
exercise of specific professional
or business activities
1. By the decision disposing the prohibition to
exercise specific professions or managing duties to legal entities
the judge prohibits temporarily the defendant entirely or partly
to exercise activities connected with them.
C H A P T E R I I
IMPOSITION AND EXECUTION OF THE
PRECAUTIONARY MEASURES
Article 244
The request for the imposition
of precautionary measures
1. The precautionary measures are imposed upon
request of the prosecutor who presents to the competent court
the grounds on which the request is motivated.
2. Even when the court declares its incompetence
for any reason, under the required circumstances and the urgency
for the imposition of the measure it shall impose it and shall
send the acts to the competent court.
Article 245
The decision of the court
1. The decision imposing the precautionary measure
shall comprise:
a) the personal data of the person subject to
the measure or anything else which helps to identify him and,
when possible, the indication of the place he stands;
b) a summarised description of the fact, indicating
the articles of the law considered to be violated;
c) the presentation of the special causes and
of the data which legally justify the precautionary measure;
d) the determination of the duration of the measure
when this is ordered to secure the acquiring or the genuiness
of the evidence;
f) the date, signature of the chairman of the
panel, of the assisting secretary and the seal of the court,
otherwise it shall be deemed null and void.
Article 246
The execution of the precautionary
measures
1. The officer or the agent of the police in charge
of execution of the decision of arrest shall deliver to the person
subject to the measure the copy of the decision and makes him
known the right to choose a defence lawyer, gives immediate notification
to the defence lawyer chosen by the defendant or the one appointed
ex-officio and keeps minutes for all of the carried on actions.
The minutes is sent to the court which has rendered the decision
and to the prosecutor.
2. In case ofdoubts towards the judge who has
issued the order or towards the person subjected to the measure,
the officers and agents in charge do not execute it.
3. The court shall notify the defendant of the
decisions imposing other precautionary measures.
4. After their notification or execution, the
decisions shall be deposited in the secretary of the court which
has rendered them. The depositing shall be also notified to the
defence lawyer shall be also notified.
5. The copy of the decision imposing a interdictive
measure is sent to the authority which is competent to impose
such a measure in ordinary cases.
6. For every three months from the execution of
the decision of arrest the judge must be informed from the prosecutor
for the arrested. When there is the case the judge may revoke
or replays the precautionary measure.
Article 247
The searching for the person who
is not found
1. When the person subject to the measure is not
found the officer or the agent of the judicial police keeps a
minutes in which shall explain the searches and sends it to the
judge who has rendered the decision.
2. When the judge considers that the searches
have been complete he declares the escape of the person.
3. By the act declaring the escape the judge appoints
a defence lawyer to the escaped person and orders that the copy
of the decision imposing the unexecuted measure is deposited in
the secretary.
4. The escaped shall be equated for any effect
to the one who escapes from the place under watch.
5. To facilitate the search for the escaped person
the judge may order the interception of telephone conversation
and of other forms of communication.
Article 248
Interrogation of the arrested person
1. Not later than three days from the execution
of the measure the court interrogates the person subjected to
jail or house arrest.
2. Through the interrogation the court verifies
the terms of the application of the arrest and the necessities
of the security. When this terms do not exist the court decides
to revoke or replace the measure.
3. The interrogation shall be held with the participation
of the prosecutor and the defence lawyer who are notified by the
secretary of the court.
4. When the interrogation of the arrested person
must be held in the district of another court, the court demands
that the interrogation is made by a judge of that court.
Article 249
The appeal against precautionary
measures
1. Within ten days from the execution or the notification
of the decision of the court, the prosecutor, the defendant and
his defence lawyer may, for violation of law, appeal directly
the decision imposing precautionary measure to the Court of Cassation.
2. For the escaped defendant the time-limit starts
effectively from the date of the notification made under article
141.
3. The appeal is submitted to the secretary of
the court of appeal or to the Court of Cassation.
4. The date fixed for the hearing is notified
to the prosecutor, defendant and his defence lawyer at least three
days before.
5. The appeal is examined within ten days from
its submission .
6. The court decides, as the case may be, the
abrogation, the alteration or the approval of the decision even
for causes different from those explained or those comprised in
the reasoning part of the decision.
7. When the decision is not announced or not executed
within the fixed time-limit the act under which the coercive measure
has been imposed shall become not valid.
8. The decision of the court of appeal, for violation
of law, is subject to appeal to the court of Cassation.
9. On expiry of six months from the execution
of the decision of arrest the defendant and his defence lawyer
may appeal to the Court of Cassation for the prolongation of the
detention.
10. The Court of Cassation renders a decision
within fifteen days from the reception of the acts.
Article 250
The assessment of the duration
of the measures
1. The effects of the detention start effectively
from the moment of the arrest or detention.
2. When the defendant is detained for another
criminal offence the effects of the measure shall start effectively
from the date of the notification of the decision.
3. The effect of the other measures start effectively
from the moment in which the decision is notified.
4. When a defendant has undergone several decisions
imposing the same measure for the same fact the time-limits shall
start effectively from the day on which the first one has been
executed or notified.
C H A P T E R I I I
THE ARREST IN THE COMMISSION AND
THE DETENTION
Article 251
The arrest in the commission
1. The officers and the agents of the judicial
police perform compulsory the arrest of anyone caught the commission
of an intentional crime, committed or attempted punishable by
law by imprisonment not less than three years as a minimum.
2. The officers and the agents of the judicial
police have the right to arrest anyone caught in the commission
of an intentional crime, committed or attempted punishable by
law by imprisonment not less than five years as a maximum or of
a criminal offence committed by negligence punishable by law not
less than ten years as a maximum.
3. In case of the very necessity, because of the
importance of the fact or dangerousness of the offender, which
is motivated by a special act, the officers and agents of the
judicial police have the right to arrest anyone caught in the
commission even when the circumstances of the paragraph 2 do not
exist.
4. In cases provided by paragraph 1 any person
is authorised to perform the arrest in the commission for crimes
prosecutable ex-officio. The one who has performed the arrest
must immediately send the arrested person to the judicial police
who keep minutes for the surrender and gives him a copy.
Article 252
The state of the commission
1. There is in a state of commission the one who
is caught whilst committing the criminal offence or the one who
immediately after the commission of the offence is traced by the
judicial police, the injured person or other persons or the one
who is caught with objects and real evidence which indicate that
he has committed the criminal offence.
Article 253
The detention of the person suspected
to have committed a crime
1. When there are motivated grounds to think that
there is a danger of escape, the prosecutor orders the detention
of the person suspected to have committed a crime punishable by
law by imprisonment not less than two years as minimum.
2. The judicial police performs the detention
by its initiative, when it is not possible due to the situation
of urgency, to wait for the order of the prosecutor.
Article 254
Prohibition to arrest and detention
under specific circumstances
1. The arrest or detention are not permitted when
under the circumstances of the fact it results that the action
has been made on duty or on exercise of a lawful right or when
a cause of unpunishability does not exist.
Article 255
The duties of the judicial police
in cases of arrest or detention.
1. The officers and the agents of the judicial
police that have made an arrest or a detention or have held the
arrested on delivery, shall immediately inform the prosecutor
of the place where the arrest or the detention has taken place.
They shall explain to the arrested or the detained the right to
select a defence lawyer and immediately shall notify the selected
defence lawyer or the one appointed ex-officio by the prosecutor.
2. The officers and agents of the judicial police
shall, as quickly as possible, make the arrested or detained person
available to the prosecutor in the custody, but still not later
than twenty-four hours from the arrest or the detention, by sending
the relevant minutes. When these time-limits are not observed,
the arrested or the detained is released.
3. When the arrested or the detained is sick or
a juvenile, the prosecutor may order that he remains under survey
in his dwelling house or in another surveyed place.
4. The judicial police, with the consent of the
arrested or the detained must, without delay, notify the family
members. When the arrested or the detained is juvenile it shall
compulsorily be notified the parent or the tutor.
Article 256
The interrogation of the arrested
or the detained
1. The prosecutor interrogates the arrested or
the detained in the presence of the selected or appointed ex-officio
defence lawyer. He shall notify the arrested or the detained the
fact for which he is being proceeded and the reasons of the interrogation,
making known the information on his charge and, when the investigation
are not impaired, even the sources.
Article 257
Cases of immediate release of the
arrested or the detained
1. When it is evident that the arrest or the detention
are made because the person is confounded or the requirements
of the law are not respected or when the measure of arrest or
detention have lost their effect becauseof the violation of the
time-limits regarding notification of the prosecutor or the request
for the evaluation of the measure the prosecutor orders, by motivated
decision, that the arrested or the detained is released immediately.
In these cases the release is ordered even by the officer of the
judicial police, who informs immediately the prosecutor of the
place of the arrest or detention.
Article 258
The request for the evaluation
of the arrest or detention
1. When does not order the immediate release,
the prosecutor, within forty-eight hours from the arrest or detention,
demands the evaluation of the measure in the court of the place
of the arrest or detention. Failure to meet this time-limit makes
the arrest or detention null and void.
2. The court fixes the hearing for the evaluation
as quickly as it can but still within forty-eight forthcoming
hours, giving notice to the prosecutor and the defence lawyer.
Article 259
The hearing for evaluation
1. The hearing for evaluation is held in the compulsory
presenceof the prosecutor and defence lawyer. When the selected
or appointed ex-officio defence lawyer is not found or appeared
the court appoints as substitute another defence lawyer.
2. The prosecutor explains the causes of the arrest
or the detention. After this the court hears the arrested or the
detained and the defence lawyer or only the latter, in case the
arrested or the detained has refused to appear.
3. When it results that the arrest or the detention
have been executed lawfully the court renders a decision on the
evaluation of the measure. The decision of the court may be appealed
directly or indirectly to the Court of Cassation by the prosecutor
or the arrested or detained.
4. When the arrest or the detention is unlawful
the court decides the immediate release of the arrested or the
detained. The decision may be appealed directly or indirectly
by the prosecutor.
5. The arrest or the detention shall loose the
effects when the decision of the court for the evaluation is not
announced within forty-eight forthcoming hours starting from the
moment in which the arrested or the detained has been available
to the court.
C H A P T E R I V
REVOCATION AND CESSATION OF THE
PRECAUTIONARY MEASURES
Article 260
Revocation and replacement of precautionary
measures
1. The coercive and interactive measures are immediately
revoked when it results that the requirements and the criteria
for their execution are missing.
2. When the necessity of the security is smoothened
or when the executed measure no longer fits with the importance
of the fact or of the punishment which may be imposed the court
shall commute the measure.
3. When the necessity of the security are aggravated
the court upon request of the prosecutor shall replace the executed
measure with a heavier one.
4. The request of the prosecutor or the defendant
for the revocation or the replacement of the measure shall be
examined by the court within five days from its depositing. When
the case requires the court decides even ex-officio during the
proceedings for the incident of proof or during the trial.
Article 261
Terminationof precautionary measures
1. The precautionary measures shall cease when
:
a) the same fact and against the same person has
been dismissed or the person has been acquitted.
b) the imposed decision is declared dismissed
or is suspended.
c) the duration of the served detention exceeds
the limits of the imposed punishment
d) after the expiry of the time-limit provided
by article 245 paragraph 1 letter d has been not ordered the renewal
, within the limits provided by articles 264 and 267.
2. The detention ordered during preliminary investigations
shall loose effect in case the court does not proceed with interrogation
within the time-limit provided by article 248
3. The cessation of the precautionary measures
does not hinder the exercise of the rights that the law recognizes
to the court or any other authority regarding the application
of supplementary punishments or other interdictive measures.
Article 262
The consequences of the termination
of precautionary measures
1. When the arrest shall loose effect, the court
decides the immediate release of the person who has been subjected
to the measure.
2. In cases the other precautionary measures loose
effect the court decides their immediate abolition.
Article 263
The time-limit of the duration
of the detention
1. The detention shall loose effect in case from
its execution haveexpired the following time-limits without being
submitted the acts to the court:
a) three months when it is proceeded for a criminal
contravention;
b) three months when it is proceeded for a criminal
offence,
c) twelve months when it is proceeded for organised
crimes and committed by bands.
2. The detention shall loose effect in case from
the day of the submission of the acts to the court have expired
the following time-limits without having the sentence rendered
in the first instance:
a) one month when it proceeded for criminal contraventions;
b) three months when it is proceeded for a crime;
c) six months when it is proceeded for organised
crimes and committed by bands.
3. The detention shall loose effect in case from
the rendering of the sentence in the first instance have expired
the following the time-limits without having the sentence rendered
by the court of appeal:
a) one month when it is proceeded for a criminal
contravention;
b) two months when it is proceeded for a crime;
c) three months when it is proceeded for organised
crimes and committed by bands.
4. In case the sentence is nullified by the Court
of Cassation and the case is sent to another court, the time-limits
shall start again according to the rules provided for each instanceof
the proceedings.
5. In case of escape of the detained defendant
the time-limits shall start again from the moment he is held detained
again.
6. The entire duration of the detention , considering
also the prolongation provided by article 264 paragraph 2, may
not exceed the following time-limits:
a) six months when it is proceeded for a criminal
contravention;
b) one year when it is proceeded for a crime;
c) two years when it is proceeded for organised
crimes and committed by bands.
Article 264
The prolongation of the detention
period
1. In any stage and instance of the proceedings,
when it has been ordered the expertise of the mental condition
of the defendant the time-limits of the detention shall be prolonged
for the time provided for the completion of expertise. The prolongation
is decided by the court, upon request of the prosecutor, after
the defence lawyer being heard. The decision may be appealed directly
or indirectly to the Court of Cassation.
2. During the preliminary investigations the prosecutor
may demand the prolongation of time-limits of detention which
are about expiring, under important necessity of security and
the examinations specifically complex require such a prolongation.
After hearing the prosecutor and the defence lawyer the court
renders a decision. The prolongation may be repeated only once
and may not exceed one month.
3. The duration of detention may not exceed the
half of the maximum provided for the criminal offence under proceedings.
Article 265
The suspension of the time-limits
of detention
1. The time-limits provided by article 263 shall
be suspended in the following cases:
a) as long as the court examination is suspended
or postponed because of the absence of the defendant or his defence
lawyer.
b) as long as the judicial examination is suspended
or postponed because of failure to appear or abandonment of one
or more defence lawyers.
Article 266
Dispositions in cases of release
from prison
1. The court, when there are still the requirements
for which the detention was imposed, shall impose other precautionary
measures to the defendant who is released from the prison because
of expiry of the time-limits, in case there are the required conditions.
2. The detention, when necessary, shall become
again effective:
a) When the defendant has intentionally violated
the orders in relation to a precautionary measure imposed as provided
by paragraph 1, but still when the necessity of the security does
exist.
b) By the conviction, when the security provided
by article 228, paragraph 3 calls for.
3. By the renewal of the detention the time-limits
shall start again but, the previous served detention shall be
assessed when the whole duration shall be calculated.
4. The officers and agents of the judicial police
may hold the defendant who escapes, violating the orders related
with precautionary measure imposed under the paragraph one.
There shall apply, as long as they comply with,
the provisions regarding the holding of the person suspected to
have committed the criminal offence.
Article 267
Maximal duration of other precautionary
measures
1. The coercive measures different from detention
shall loose effects when since the commencement of their execution
has passed a time equal to twofold of the time-limits provided
by article 263.
2. The interdictive measures shall loose effect
when three months since their execution have passed. When they
have been imposed in order to not damage the proofs, the court
may order their repetition up to the limits provided by paragraph
1.
C H A P T E R V
THE COMPENSATION FOR UNFAIR IMPRISONMENT
Article 268
The condition of application
1. The one who is found`innocent by final sentence
is entitled to compensation for the served detention, except when
it is proven that the wrong sentence or failure to discover the
unknown fact in due time has been caused entirely or partly by
himself.
2. The same right shall have the punished who
has been detained, when it is proven by a final decision that
the act by which the measure has been imposed is issued when the
requirements provided by articles 228 and 229 are inexistent.
3. The provisions of paragraph 1 and 2 shall also
apply to the favour of the person for whom the court or the prosecutor
has decided the dismissal of the case.
4. When it is proven by court decision that the
fact is not provided as a criminal offence by law, because of
abrogation of the relevant, the right to compensation is not recognized
for that part of the detention served before the abrogation.
Article 269
The request for compensation
1. The request for compensation must be presented
within three years from the date the decision of acquittal or
dismissal of the case has become final, otherwise it is not accepted.
2. The amount of the compensation and the way
of its assessment, as well as cases of compensation for the house
arrest, are determined by special law.
C H A P T E R V I
PATRIMONIAL PRECAUTIONARY MEASURES
S E C T I O N I
THE PRESERVATIVE ATTACHMENT
Article 270
The circumstances and the effects
of the measure
1. When motivated reasons to believe that the
defendant does not guarantee the payment of fine penalty, expenses
of the proceedings and any other obligation to the state patrimony
exist, the prosecutor demands the preservative attachment to the
real estate or movable property of the defendant or to the deposits
or objects that the others owe him, within the limits permitted
by law for the same.
2. The civil plaintiff may demand the preservative
attachment to the property of the defendant or the civilly sued
under the circumstances provided by paragraph 1.
3. The attachment imposed by request of the prosecutor
shall also apply to the civil plaintiff.
Article 271
The court decision regarding attachment
1. The preservative attachment is ordered by the
competent court.
2. When a decision in the first instance has been
rendered, the attachment is imposed before the acts are sent to
the court of appeal.
3. The attachment is executed by the court bailiff
under the rules provided by Civil Procedural Code.
4. The effects of the attachment shall terminate
when the decision of acquittal or dismissal of the case becomes
final.
Article 272
Offer of security bond
1. When the defendant or the civilly sued offers
a suitable legal means to guarantee the debt (pledge, deposit,
pawn, mortgage) the court shall not impose the preservative attachment
or it revokes it and shall determine the way of payments of the
debt.
2. When the offer is proposed along with the lawsuit,
the court revokes the attachment if considers that the offer of
bond is in proportion with the value of the attached objects.
Article 273
The execution of the attachment
1. The preservative attachment is altered in executable
attachment when the decision of fine penalty or the one which
orders the defendant and the civilly suit to compensate the damage
has become final.
2. The compulsory forfeiture of the attached property
shall be made under the rules provided by the Civil Procedural
Code. From incomes of sale of attached property and from those
of means offered to pay the debt shall be paid, respectively,
the amounts pertaining to civil plaintiff for compensation of
the damage and court expenses, fine penalties, the expenses of
the proceedings and any other amount in the favour of the state.
S E C T I O N I I
PREVENTIVE ATTACHMENT
Article 274
The scope of the preventive attachment
1. When there is a danger that free possession
of an object related to the criminal offence may aggravate or
prolong its consequences or facilitate the commission of other
criminal offences the competent court, on demand of the prosecutor,
orders its attachment by reasoned decision.
2. The attachment may be also ordered for objects
which are permitted to be confiscated .
3. When the circumstances of execution change,
the court, on demand of the prosecutor or interested person, nullifies
the attachment.
Article 275
Loss of effects of attachment
1. By the decision of acquittal or dismissal of
the case the court or prosecutor order the restitution of the
attached objects to the onee they belong, when it must not order
their confiscation as being used or assigned to commit a criminal
offence or because they have been produced or profited from the
criminal offence.
2. When the conviction has been rendered, the
effect of the attachment shall continue if the decision orders
the confiscation of the attached objects.
3. The attached object shall not be restituted
when the court decides that the attachment shall be held to guarantee
the credits.
Article 276
The appeal against the decision
1. The decision imposing or not imposing the attachment
may be appealed by any interested person.
2. The appeal is submitted within ten days from
the rendering of the decision or from the day the interested has
been notified the imposed attachment.
3. The appeal is submitted to the secretary of
the court which has rendered the decision.
4. The appeal does not suspend the execution of
the measure.
5. The appeal is subject to the decision of the
court of appeal within fifteen days from the reception of the
acts.
6. The court decides, as the case may be, the
nullification, the alteration or the approval of the appealled
decision.
7. When the decision is not announced or not executed
within the fixed time-limit, the act imposing the attachment shall
loose the effects.
P A R T I I
T I T L E V I
PRELIMINARY INVESTIGATIONS
C H A P T E R I
GENERAL PROVISIONS
Article 277
The authorities assigned to conduct
the preliminary investigations
1. The prosecutor and the judicial police conduct,
within specified competency, necessary investigations connected
with the criminal prosecution.
2. The prosecutor leads the investigations and
avails himself of the judicial police.
Article 278
The competency of the court during
the preliminary investigations
1. During the preliminary investigations, which
are held on demand of the prosecutor, defendant, injured and private
parties, in cases provided by law, the court is entitled to discretion.
Article 279
The obligation to keep the secret
1. The investigations are secret until the defendant
has not received any information of them. In need of continuation
of the investigations the prosecutor may order the keeping of
secret of special acts until the investigations go to an end.
2. The prosecutor may allow, by a motivated decision,
the publication of special acts or of their parts. The published
acts shall be deposited in the secretary of the prosecutor.
C H A P T E R I I
BECOMING AWARE OF THE CRIMINAL
OFFENCE
Article 280
Becoming aware of the criminal
offence
1. The prosecutor and the judicial police become
aware of the criminal offence ex-officio and by others information.
Article 281
Indictment by public officials
1. The public officials, who during the exercise
of the duty or due to their position or service, become aware
of a criminal offence prosecutable ex-officio, are obliged to
make a written indictment even when the person to whom is attributed
the criminal offence has been not identified.
2. The indictment is presented to the prosecutor
or an officer of the judicial police.
3. When, during the civil or administrative proceedings,
it is discovered a fact which constitute a criminal offence which
is prosecutable ex-officio, the relevant authority presents the
indictment to the prosecutor.
4. The indictment consists of essential elements
of the fact, the sources of evidence, personal details, the residence
and anything else which leads to the identification of the person
whom is attributed the fact, the injured person and the ones who
are able to explain the circumstances of the fact.
Article 282
Indictment from the medical personnel
1. The medical personnel that is legally bound
to indict, must present the indictment within fourty- eight hours
and send it to the prosecutor or any officer of the judicial police
of the place where he has intervened or has provided the assistance
and, when the delay may bring any danger, to the officer of the
nearest judicial police.
2. The indictment from medical personnel indicates
the person who has been provided the assistance and, when possible,
the personal details, his domicile and anything else of value
to identify him, the circumstances of the fact, the means used
to commit it and the consequences.
3. When several persons have provided their medical
assistance for the same case, all of them are obliged to make
indictment, having the right to compile and sign a sole act.
Article 283
Indictment from citizens
1. Any person that has become aware of a criminal
offence prosecutable ex-officio must indict of it. In cases specified
by law the indictment is compulsory.
2. The indictment is presented to the prosecutor
or to an officer of the judicial police orally or in writing,
personally or through an attorney.
3. Anonymous indictments may not be used except
in cases provided by article 195.
Article 284
The action
1. For the criminal offences provided by articles
85, 89, 102 first paragraph, 105, 106, 130, 239, 240, 241, 243,
264, 275 and 318 of the Criminal Code, the prosecution may start
only by indictment brought by the injured, who may withdraw the
same at any stage of the proceedings.
2. The injured brings the indictment before the
prosecutor or the judicial police by means of a statement in which,
personally or through the special attorney, it is expresed the
willingness to proceed for a fact provided by law as a criminal
offence.
3. When the indictment is made orally the relevent
minutes is signed by the plaintiff or his attorney.
4. The one who receives the indictment, after
being certain of the identity of the plaintiff sends the acts
to the prosecutor.
5. In cases provided by article 59, the indictment
is brought before the court by the injured accuser.
Article 285
The renouncement from the right
to indictment
1. The renouncement from the right of indictment
is made personally or through the attorney by a signed statement
or orally before the prosecutor or the officer of the judicial
police who keeps minutes, which must be compulsorily signed by
the author.
2. Timely or conditional renouncement is not valid.
3.The same statement may also contain the renouncement
from the civil lawsuit.
Article 286
Withdrawal of the indictment
1. The withdrawal of the indictment is made personally
or through the attorney by a statement presented to the proceeding
authority.
2. The withdrawal of indictment may be presented
in any stage of the proceedings, until the decision of the court
has become final.
3. The expences of the proceedings shall be in
charge of the one who withdrows the action, except when the act
of withdrawal has provided, by agreement, that they are entirely
or partly in charge of the one subject to action.
Article 287
The registration of the notification
of the criminal offences
1. The prosecutor keeps in the register every
notification of the criminal offence which is presented or obtained
by him ex-officio and at the same time or from the moment of its
coming out, the name of the person to whom is attributed the criminal
offence.
2. It shall be prohibitted the publication of
the registrations made until the person to whom is attributed
the criminal offence is held as a defendant.
C H A P T E R I I I
THE REQUIREMENTS OF THE PROCEEDINGS
Article 288
Authorisation to proceed
1. When autorisation to proceed is required, the
prosecutor presents a request to the competent authority. The
request asking authorisation to proceed must be presented within
thirty days from the registration in the register of the name
of the person for which the authorisation is required. When he
has been arrested in the commision the authorisation is requested
immediately and, in any case, before the hearing of evaluation.
Article 289
Prohibition to proceed
1. Until the authorisation to proceed is issued,
it shall not be permitted the detention, the imposition of precautionary
measures, inspection, inspection of the person, recognition, confrontation,
and interception of conversations and communication related to
the person for whom the authorisation is required. He may be interrogated
only if he desires it.
2. When it is proceeded against several persons
and for some of them the authorisation is not required and the
issue of this is delayed, it may be proceeded only against the
defendants for whom the authorisation is not required.
Article 290
The circumstances not permitting
the initation of the proceedings
1. The prosecution may not iniciate and, if initiated,
must be dismissed in any stage of the proceedings when:
a) the person has died;
b) the person is irresponsible or has not reached
the ageof criminal responsability;
b) there is no action of the injured or he withdraws
the action.;.
d) the fact is not provided by law as criminal
offence or is evident that the fact does not exist;
e) the criminal offence has ceased;
f) an amnesty has been announced;
g) in all other cases provided by law.
Article 291
Decision dismissing the proceedings
1. Under circumstances which does not permit the
initiation of the proceedings, the prosecutor renders a motivated
decision dismissing the proceedings.
2. The decision is notified immediately to those
who have presented an indictment or an action, who may appeal
it to the court within five days from the notification of the
same.
Article 292
Renewal of the prosecution
1. The decision dismissing the proceedings, termination
or of acquital, rendered due to inexistence of an action to proceed
or the request for authorisation to proceed do not hinder the
exercise of prosecution for the same fact and against the same
person, when after the action is brought, the authorisation is
issued or the personal circumstance which made the authorisation
necessary, no longer exist.
C H A P T ER IV
INVOLVEMENT EX UFFICIO
OF THE JUDICIAL POLICE
Article 293
The reporting of the criminal offence
to the prosecutor
1. After receiving notice of the criminal offence
the judicial police, without delay, reports, in writing, to the
prosecutor, the essential elements of the fact and the other elements
which are gathered until this moment. It notifies, when possible,
the identity, the domicile and everything which is valid for the
identification of the person who is under investigations, the
injured person and they who are able to give evidence of the circumstances
of the fact.
2. In case of urgency and in cases of serious
crimes, the notification is made immediately even orally.
3. Through the notification, the judicial police
notifies the day and hour when it has become aware of the criminal
offence.
Article 294
The provision for sources of evidence
1. Even after reporting the criminal offence,
the judicial police continues to carry out the functions mentioned
in article 30, gathering every valid element for the reproduction
of the fact and for the individualisation of the guilty. It proceeds
particularly:
a) In searching and fixing of the objects and
traces of the criminal offence, as well as preserving them and
the scene of the crime until this is necessary;
b) In searching and interrogating the persons
who are able to explain the circumstances of the fact.
c) In carrying out of the actions provided by
the following articles.
2. After the intervention of the prosecutor, the
judicial police carries out the actions which are particularly
delegated by the prosecutor, as well as all the urgent actions
to reveal the criminal offence.
3. The judicial police, when carries out the actions
which require special technical knowledge, may appoint an expert,
which cannot refuse the assignment.
Article 295
The identification of the person
under investigation
1. For the identification of the person under
investigation the judicial police carries out all the necessary
actions, including the acquisition of finger-prints, photographic
and antropometric examination.
2. When he refuses to identify or presents personal
data or identity cards which are suspected to be false, the judicial
police accompanies him to its offices and holds him there until
is necessary for the identification, but not longer than twelve
hours.
3. The accompaniment and the release shall be
immediately informed to the prosecutor.
Article 296
Data on the person under investigation
1. The officers of the judicial police collect
data on the person under investigation, in the compulsory presence
of his defence lawyer.
In case the defence lawyer is not found or fails
to appear, the judicial police demands the prosecutor to appoint
another defence lawyer.
2. In the scene of the crime or in evident criminal
offences the officers of the judicial police, even in absence
of the defence lawyer, may acquire from the person under investigation,
even if arrested in the commission or detained, data which are
necessary to continue the investigation.
3. The judicial police may acquire statements
from the person under investigation, but their use in the trial
shall not be permitted, except when the content of the deposition
is challenged.
Article 297
The acquiring of other data
1. The judicial police acquires summarized data
from the persons who may throw light to the circumstances that
go to the targets of the investigation.
2. Provisions of articles from 155 to 160 shall
apply.
Article 298
Inspection
1. In case of commission or escape the officers
of the judicial police carry on inspection of the person or premises
when they have grounded reasons to think that the person hides
objects or traces of the criminal offence which may disappear
or be lost or that this objects or traces are in a said place
or over the place where the person under investigation or escaped
is found.
2. When a detention must be executed, a decision
of arrest or a conviction to imprisonment must be enforced, the
officers of the judicial police may carry on the inspection of
the person or premises. When the conditions of paragraph 1 do
exist and there are particular reasons of urgency that does not
permit the issue of a writ of inspection. When any delay may impair
the successful termination of investigation, the inspection of
the premises may be carried out even out of the time-limits provided
by article 206.
3. The minutes of the completed actions shall
be sent, without delay, but not later than fourtyeight hours,
to the prosecutor of the place where this inspection was made
who, within fourtyeight consecutive hours, shall evaluate the
inspection.
Article 299
The taking of sealed envelopes
and correspondence
1. When the proceedings require the taking of
envelopes sealed or closed by any other means, the officer of
the judicial police shall send them untouched to the prosecutor
for any eventual attachment. In case there are grounded reasons
to think that the sealed envelopes contain data which may be lost
due to delay, the officer of the judicial police informs, by the
most rapid means, the prosecutor who may authorize the immediat
opening.
2. For letters, envelopes, packages, patrimonial
and monetary values, telegrams or other means of correspondence
for which attachment is permitted, the officers of the judicial
police, in case of urgency, order the person on duty in the post
office to suspend the dispatching. In case within fourtyeight
hours from the order of the judicial police the prosecutor does
not order the attachment, the objects of the correspondence shall
be forwarded to the destination.
Article 300
Immediate verification on the spot
1. The officers and agents of the judicial police
take the steps that the traces and objects involved in the criminal
offence are fixed and preserved and that the circumstances of
the scene of the crime and of the objects are not changed before
the intervention of the prosecutor, when he has confirmed his
participation.
2. When traces and the objects may change or be
lost and the prosecutor may not interviene urgently, the officers
of the judicial police carry on necessary investigations and,
if there is the case, seize the real evidence and objects connected
with the criminal offence.
Article 301
Assessment of attachment
1. When imposes the attachment under the article
300, the judicial police notes in the minutes the reason and hands
a copy of the act to the person whose objects are attached. The
minutes shall be send without delay and, anyhow, not longer than
fortyeight hours, where the attachment has taken place.
2. The prosecutor within fourtyeight consecutive
hours, by motivated decision, evaluates the attachment, approving
it in case there are conditions or restituting the attached objects.
The copy of the decision is notified to the person whose objects
are attached. The decision may be appealed to the court within
ten days from the defendant or his defence lawyer from the person
whose objects are attached and from the one who is entitled to
their restitution. The appeal does not suspend the enforcement
of the attachment.
Article 302
The assistance of the defence lawyer
1. The defence lawyer of the person under investigation
is entitled to be present in the inspections and immediate verifications
on the spot, without necessarily being ntified, except in case
of immediate opening of the sealed envelope as authorized by the
prosecutor.
Article 303
The documentation of the actions
of judicial police
1. The judicial police records, even in summarised
form, all the completed actions.
2. The judicial police keeps minutes for:
a) indictments and actions presented orally
b) summarized data and statements of the person
under investigation
c) data obtained by persons who can explain circumstances
that help to achieve the target of investigation
d) surveys, recognitions,inspections and attachments
e) acts for the identification of the person under
investigation, for the receiving of sealed envelopes and of correspondence
and for the imposing of the attachment
f) investigation actions authorised by the prosecutor
3. The documentation of the actions of the judicial
police, of the real evidence and objects connected with the criminal
offence, shall be available to the prosecutor.
C H A P T E R V
THE ACTIONS OF THE PROSECUTOR
Article 304
The investigation actions of the
prosecutor
1. The prosecutor leads the investigation operations
and carries out personally any investigation action which he considers
necessary.
2. He may demand by the judicial police the carrying
on of the actions delegated particularly, including the interrogation
of the defendant and the confrontations, in the presence of the
defendant and his defence lawyer. In such a case the judicial
police observes the rules regarding the appoinment and participation
of the defence lawyer in the investigation operations.
3. For special actions to be carried out in another
district, the prosecutor, when is not of the opinion to proceed
himself, can authorise, under respective substantial competency,
the prosecutor in the court of that district. In case of urgent
and important reasons, the authorised prosecutor has the right
to carry out ex ufficio any action necessary for the aims of the
investigation.
Article 305
The undertaking of investigations
1. If the district prosecutor does not exercise
the criminal proceedings or does not terminate within the fixed
time- limits, the General Attorney, on demand of the defendant,
the injured person or even ex-officio orders, by a motivated decision,
the undertaking of the investigations,
2. The General Attorney carries out the necessary
investigations and compiles his requests within thirty days from
the decision of the undertaking of investigations.
Article 306
The relations between different
prosecution offices.
1. The prosecution offices which proceed in connected
investigations co-operate between them. For this purpose they
exchange information and notifications on the instructions given
to the judicial police. They may proceed even jointly in carrying
out of special actions.
2. The investigations of two different prosecution
offices are deemed to be connected:
a) in cases of joinder of the proceedings or in
case of criminal offences committed by several persons to each
other?s harm;
b) when the evidence of a criminal offence or
one of its circumstances influences on the evidence of another
criminal offence or on another circumstance;
c) when the evidence of several criminal offences
derives, even partly, from the same source.
Article 307
The appearance to make statements
1. The one who is informed to be subjected to
proceedings, has the right to appear to the prosecutor and make
statements.
2. When the one who appears willingly refuses
the fact for which he is subjected to proceedings and is permitted
to explain his innocence, the carried out actions shall be grounded
on interrogation.
3. The appearance does not hinder the enforcement
of precautionary measures.
Article 308
Writ of summons
1. The prosecutor summons the person subjected
to investigation to appear when he is going to interrogate himor
when must carryout actions which require his presence.
2. The writ of summons contains:
a) the personal data or other personal data necessary
to his identification;
b) the day, hour and the place of appearance;
c) the type of the action which he is cited for;
d) forwarning that the prosecutor may order the
forcible accompaniment, in case of failure to appear without lawful
escuses.
3. The writ of summons contains also the summarized
introduction of the fact which results by the investigations carried
until that moment.
4. The writ of summons is notified at least three
days before the fixed day of appearance, except when due to eventual
reasons, the prosecutor thinks to shorten the time- limit.
Article 309
The appointment and the assistance
of the defence lawyer
1. The defendant who has no defence lawyer is
notified by the prosecutor that he shall be assisted by a defence
lawyer appointed ex-officio.
2. The defence lawyer selected or appointed ex-officio
is notified at least twentyfour hours in advance when it is proceeded
with interrogation, survey or confrontation. When the delay may
impair the proceedings, the notification of the defence lawyer
shall be made urgently.
3. The minutes of the actions carried on by the
prosecutor and the judicial police, during which the defence lawyer
has the right to be present, are deposited in the secretary of
the prosecution offices within three days from the performance
of the action, having the defence lawyer the right to examination
and take copies.
Article 310
The notification of the defendant
to participate in
inspections and attachments
1. The prosecutor, when shall carry on inspections
or attachments, notifies the defendant to appear together with
the appointed defence lawyer and , when the latter fails to appear,
appoints another defence lawyer ex- officio.
Article 311
The interrogation of the defendant
in a connected proceedings
1. The person held as defendant in a connected
proceedings shall be interrogated by the prosecutor in forms provided
by article 167.
Article 312
The obtaining of data
1. The prosecutor obtains data by the injured
person and the ones who can explain circumstances useful to the
targets of investigation, observing the rules provided for the
obtaining of testimony.
2. The citation of these persons is made by a
writ of summons which comprises:
a) the personal data of the person,
b) the day, hour and the place of appearance,
c) forwarning that the prosecutor may order the
forcible accompaniment in case of failure to appear, without lawful
excuses.
3. The prosecutor issues, in the same way, the
writ of summons for the interpreter and expert.
Article 313
Recognition of persons and objects
1. When necessary, the prosecutor proceeds with
recognition of persons, objects and anything else which can be
subject to sensual perception.
2. The persons, things and other objects are presented
or showed to the recogniser by means of designs.
3. When there are motivated reasons to think that
the person summoned to make the recognition may be timid or influenced
by the presence of the person under recognition, the prosecutor
takes the steps in order to avoid the latter to see the performance
of the action.
Article 314
The appointment of expert
1. The prosecutor when proceeds with actions whivh
require technical knowledge, may appoint an expert assigning specific
tasks. The expert may not refuse the assignment, unless there
are lawful excuses.
2. The expert may be authorized by the prosecutor
to participate in specific investigation actions.
3. When technical verifications deal with persons,
objects or places which state has changed the prosecutor notifies
the defendant and the defence lawyer, the injured and his attorney
the date, hour and the place where the action shall take place.
Article 315
The recording of the actions of
prosecutor
1. The prosecutor keeps minutes:
a) for indictments and actions presented orally
b) for examinations, inspections and attachments
c) for interrogation and confrontations with the
defendant
d) for data acquired from persons who explain
circumstances useful to the targets of investigation..
e) for verifications related with persons, objects
or places which state has changed.
2. The actions shall be recorded during their
completion or immediately after when there are inevitable circumstances
that hinder the recording on the spot.
3. The act containing the information of the criminal
offence and the documentation related to investigations, such
as orders to the judicial police, demands presented to the court
notifications, etc, shall be kept in a special file in the secretary
of the prosecution office along with the acts sent from the judicial
police.
C H A P T E R V I I
CUSTODY OF EVIDENCE
Article 316
Cases of custody of evidence
1. During the preliminary investigation, the prosecutor
and the defendant may ask from the court to proceed with the custody
of evidence:
a) in the obtaining of the testimony of a person
when there are grounded reasons to think that he may not be interrogated
in the court examination because of disease or other serious hindrance
b) in the obtaining of the testimony, when there
are grounded reasons to think that the person may be subjected
to violation, threat, or may be offerred money or other profits
in order to not testify or give false evidence.
c) in the interrogation of the defendant in relation
to facts regarding others? responsability when one of the circumstances
provided by letters a) and b) exists.
d) in the confrontation amid persons who have
made contradictory statements when one of the circumstances provided
by letters a) and b) exists
e) in an expertise or court examination, when
the evidence relates to a person, an object or a place, which
state may undergo inevitable changes. The expertise may be also
requested in case that even if it is made during the court examination,
it would lead to a suspension of the trial for more than sixty
days.
f) in an appearance for recognition, when due
to particular reasons the action may be postponed until the holding
of court examination.
Article 317
The request regarding the custody
of evidence
1. The request regarding the custodyof evidence
is submitted within the time-limits of the termination of investigations
and comprise:
a) the evidence to be obtained and its importance
to the court decision;
b) the persons who are under proceedings because
of facts subject to proving;
c) circumstances that does not permit that the
obtaining of evidence is postponed until the court examination.
2. The request made by the prosecutor shall also
indicate the defence lawyers of the interested persons under the
paragraph 1, letter b, the injured person and his defence lawyer.
3. Provisions of paragraph 1 and 2 are observed
by consequence of non -acceptance.
4. The prosecutor may decide the prolongation
of preliminary investigations for the custody of evidence.
Article 318
The request of injured
1. The injured may ask the prosecutor to request
the custody of evidence.
2. If does not accept the request, the prosecutor
renders a reasoned decision and notifies the injured person who
may appeal it to the court.
3. The injured accuser may ask from the court
to proceed with the custody of evidence before the start of the
trial.
Article 319
Submission of the request
1. The request regarding provision of evidence
shall be deposited to the secretary of the court along with eventual
objects and documents. It shall be notified to the parties and
interested person by the one who has made it.
2. Within two days from the notification of the
request the prosecutor and the defendant may present arguments
in relation to the ground of the request, deposit objects and
documents and also indicate other facts and interested persons.
3. The presecutor may request from the court the
postponment of the time-limit
fixed for the custody of evidence requested by
the defendant in case the performance of the action should damage
the obtaining of the evidence. The court, after hearing the defendant
and his defence lawyer, renders a decision upon the request.
Article 320
Dispositions regarding the request
for the custodyof evidence
1. Within two days from the reply confirming that
notification of the request regarding custody of evidence has
been received, the court renders a decision accepting or rejecting
the request.
2. By the decision accepting the request the court
determines:
a) the subject of the evidence within the limits
of the request;
b) the persons who are interested to the obtaining
of the evidence according to the request.
c) the date of the hearing, which may not exceed
a time-limit of ten days from the date of the rendering of the
decision
3. When the defendant whose presence is necessary
for the provision of proof fails to appear without any lawful
excuse the court orders his forcible accompaniment.
4. When there are urgent reasons and the custody
of evidence may not be carried out in the district of the competent
court, this may empower the court of the place where the evidence
can be obtained.
Article 321
The taking of evidence
1. The hearing of the taking of the evidence is
held in the compulsory presence of the prosecutor and defence
lawyer of the defendant. The attorney of the injured has also
the right to participate.
2. The defendant and the injured have the right
to participate when a witness or another person must be interrogated.
In other cases they may participate with prior authorisation of
the court.
3. It is prohibited the taking of the evidence
related with facts dealing with persons who are not represented
by the defence lawyers in the hearing.
4. The minutes, objects and documents obtained
in order to provide the custody of the evidence shall be sent
to the prosecutor. The defence lawyers have the right to access
and to issue copies of them.
Article 322
The use of obtained evidence
1. The evidence obtained under the rules of this
chapter may be used in the court examination only against the
defendant whose defence lawyers have participated in their taking.
2. The decision rendered on basis of a proof obtained
under the rules of this chapter, in which the injured has been
not able to participate, does not produce effects, except when
the injured himself has accepted it even tacitly.
C H A P T E R V I I I
THE TIME- LIMITS FOR THE TERMINATION
OF INVESTIGATIONS
Article 323
The time- limits of preliminary
investigations
1. Within three months after the date in which
the name of the person, to whom is attributed the criminal offence,
is noted in the register of notification of the criminal offence,
the prosecutor decides the bringing of the case before the court
or its dismissal or suspension.
2. When an authorisation to proceed is required,
the continuation of the time- limit shall be suspended from the
moment of the request until the day when the authorisation is
presented to the prosecutor.
Article 324
The prolongation of the time- limit
1. The prosecutor may prolong the time- limit
of investigations up to three months.
2. Further prolongation, each of them not more
than three months, may be done by the prosecutor in case of complex
investigations or when it is objectively impossible to terminate
them within the prolongated time- limit. The time-limit of the
preliminary investigations may not exceed eighteen months.
3. The decision prolongating the time- limit of
investigations is notified to the defendant and the injured person.
4. The investigation operations performed after
the expiry of the time- limit may not be used.
Article 325
The appeal against the prolongation
of the time limit of investigation
1. The defendant and the injured have the right,
within ten days from the notification, to appeal the decision
of the prosecutor prolonging the investigations in the district
court.
2. After hearing the defendant, the defence lawyer,
the injured and the prosecutor the court, within ten days, shall
examine the appeal.
3. If the court accepts the appeal, the investigations
may continue or continue only for a time- limit fixed by itself.
4. The decision of the court may be appealed,
but this does not suspend the execution of the decision.
Article 326
The suspension of investigations
1. In case the offender is unknown or when the
defendant undergoes a grave malady which stops ulterior investigation,
the prosecutor decides the suspension of investigations.
2. The suspension of investigations is decided
after beeing carried out all the possible operations.
3. The suspended investigations restart upon decision
of the prosecutor.
C H A P T E R I X
THE TERMINATION OF INVESTIGATIONS
Article 327
The actions of the judicial police
and prosecutor
1. After carring out the necessary investigation
operations, the judicial police shall send the acts to the prosecutor,
together with an explanatory report of the facts and evidence
and suggestions how to terminate the investigations.
2. The prosecutor, after examining the acts and
becoming certain that the defendant or the defence lawyer is familiar
with them, decides, as the case may be, the dismissal of the case
or its bringing before the court.
Article 328
The dismissal of the case
1. In any stage of the proceedings, the prosecutor
decides the dismissal of the case when:
a) it is evident that the fact does not exist
b) the fact is not provided by law as a criminal
offence
c) the injured has not brought an action or he
withdraws the action in cases the proceedings start on his request
d) the person cannot be considered as defendant
or he may not be punished
e) a reason which renders the criminal offence
null and void or does not alow the initiation or the continuation
of the criminal proceedings exists
f) it results that the defendant has not committed
the offence or is not proved that it is committed by him
g) the defendant is convicted by a final decision
for the same criminal offence
h) the defendant dies
i) in other cases provided by law.
Article 329
The appeal against the decision
dismissing the case
1. The injured and the defendant are entitled
to appeal the decision dismissing the case in the district court,
except when a decision has proven that the fact does not exist.
2. When does not find right the appeal of the
injured, the court decides the continuation of the investigation,
whereas when accepts the appeal of the defendant alters the decision
of dismissal into a formula in favour of the defendant.
3. The decision of the court is subject to appeal
by the prosecutor, injured and the defendant.
Article 330
The charge of appellant with expenses
and damages
1. The payment of the expences of the proceedings
which are covered by the state, when the case is dismissed because
the fact does not exist, shall be in charge of the injured person
who has engaged the proceedings by making the appeal.
2. The expences made by the defendant and the
civilly sued, when thay request them and also the compensation
for the damage shall be in the charge of the appellant.
3. When the case has been dismissed because of
withdrawal of appeal, the expenses shall be in charge of the apellant,
except when the act of withdrawal has provided by agreement that
they are entirely or partly in charge of the one subject to appeal.
4. The expenses and damages shall be set by the
prosecutor. His decision may be appealed to the court by the injured,
defendant and civilly sued.
Article 332
The bringing of the case before
the court
1. When the evidence of the guilt of the defendant
is complete, the prosecutor shall submit the request for the trial
to be held.
2. The request for trial contains;
a) the personal data of the defendant and the
injured by the criminal offence
b) explanation of the fact, indicating the respective
articles of the Criminal Code
c) the sources of evidence and the facts they
refer to
d) the date and the signature of the prosecutor
3. The request is notified to the defendant and
injured.
Article 333
The file of the trial
1. The request of the prosecutor for trial are
enclosed ;
a) the acts related with the indictment of criminal
offence and of the request excepting the civil lawsuit;
b) the minutes of disclosed actions which have
been carried out by the judicial police and the prosecutor;
c) the acts relating to the imposition of precautionary
measures;
d) the minutes of the actions made for the custody
of evidence and of those completed abroad on basis of ordering
letter;
e) the criminal record and other documents related
with the personallity of the defendant
f) real evidence and objects pertaining to the
criminal offence when it must not be preserved in another place;
g) minutes of search, recognition and experiment;
h) written reports of the experts;
i) the minutes of the evidence of the other connected
proceedings;
j) the minutes and the records of the interception
of the conversation and communication;
k) any other act provided by law.
2. The copies of these acts and other evidence
obtained during the preliminary investigations shall remain in
the file of the prosecutor.
T I T L E V I I
THE TRIAL
C H A P T E R I
THE PRETRIAL ACTIONS
Article 333
The fixing of the hearing
1. Within ten days from the recording of the request
of the prosecutor or of the injured accuser the judge who chairs
the panel and who is appointed to try the case, shall fix the
date for the hearing to be held.
2. The date of the hearing is notified to the
prosecutor, defendant, defence lawyer, the injured , the private
parties and their attorneys at least ten days before the date
fixed for trial.
Article 334
The request for accelerated trial
1. Under the requirements provided by law, the
prosecutor may demand the direct trial whereas the defendant the
accelerated trial.
2. In these cases the rules this Code provides
for special trials shall apply.
Article 335
The rights of the parties
1. Up to the date fixed for trial the parties,
their defence lawyers and attorneys have the right to watch the
attached objects, to examine the acts and the documents collected
in the secretary for the file of the court trial and also to issue
copies of them.
Article 336
Urgent actions
1. In cases that the custody of evidence requires,
the chairing judge, upon request of the parties, orders the obtaining
of the evidence which later cannot be obtained for sure, observing
the rules provided for the court examination.
2. The day, the hour and the place of the obtaining
of the evidence are notified, at least twentyfour hours beforehand,
to the prosecutor, the defendant, the injured and the defence
lawyer.
3. The minutes of the completed operations are
put in the file of trial.
Article 337
The summons of the witnesses and
experts
1. The parties that request the interrogation
of the witnesses and experts must deposit in the secretary of
the court, at least five days before the date fixed for trial,
their roll-call.
2. The chairing judge orders, even ex-officio,
the summons of the expert appointed during the preliminary investigation
for the custody of the evidence.
3. The party which requests the obtaining of the
minutes of the evidence of another criminal proceedings must make
a request and deposit it to the secretary of the court. As far
as the minutes of the statements of the persons which are subject
to summons are concerned, the court disposes only after their
examination in the trial.
Article 338
Efforts to reconciliate
1. In case of criminal offences prosecutable on
request of the injured accuser the court summons the injured and
the one subject to the request for trial proposing the solution
of the case by consent. In case the injured withdraws the request
and the accused accepts this, the court dismisses the case. On
contrary, they shall fix the date of the hearing and explains
their right to be assisted by defence lawyers.
C H A P T E R I I
THE COURT EXAMINATION
S E C T I O N I
GENERAL RULES
Article 339
The publicity of the hearing
1. The hearing shall be public otherwise it shall
be null and void.
2. Juveniles under sixteen and those who are drank,
intoxicated or mentally disordered shall be not allowed in the
hearing.
3. It is prohibited the presence of armed persons
in the hearing, except members of public order forces.
Article 340
Cases of closed hearings
1. The court decides to hold the court examination
or some of its actions in camera:
a) when the publicity may damage the social morality
or may divulge data to be kept secret for the interest of the
state, if this is requested by the competent authority.
b) in case of behaviours which impair the normal
performance of the hearing
c) when it is necessary to protect the witnesses
or the defendant
d) when necessary during the questioning of juveniles
2. The decision of the court holding the hearing
in camera is revoked once the causes which required it no longer
exist .
Article 341
The conduct of the hearing
1. The hearings are conducted by the chairman.
His orders regarding the silence and the public order are compulsory
for the parties and participants and they are executable by public
order authorities. The ones who hinder the normal performance
of the hearing shall be expelled by decision of the chairman and
if they do not obey shall be punished by fine up to tenthousand
leks. The order is final.
2. When a criminal offence is committed in the
hearing the prosecutor proceeds according to law and, if there
is the case, orders the arrest of the offender.
Article 342
Uninterrupted trial
1. When the court examination may not terminate
in a sole hearing the court decides to continue it the next working
day.
2. The court may interrupt the court examination,
up to fifteen days, only under particular circumstances.
3. The postponment and interruption of the court
examination are declared by the chairman in the hearing. The announcement
is equal to notification for the ones who are present or who must
deem to be present.
Article 343
The suspension of the court examination
1. When the solution of the criminal case is depended
on the solution of a civil or administrative dispute for which
a trial is being held, the court may decide the suspension of
the court examination until the case is resolved by a final decision.
2. The decision of the suspension is subject to
appeal to the Court of Cassation.
3. When the administrative or civil trial does
not terminate within six months the court may revoke the decision
of the suspension even ex-officio.
Article 344
The presence of the defendant in
the hearing
1. The defendant participates in the hearing as
a free person even when he is detained, except when it is necessary
to take measures to prevent the escape or violence.
2. The defendant who, due to his behaviour hinders
the normal performance of the hearing even having been forwarned,
shall be expelled from the court room by order of the chairman.
3. The expelled defendant is deemed to be present
and is represented by the defence lawyer. He can be readmitted
to enter the court room in any time.
Article 345
The minutes of the hearing
1. The secretary keeps the minutes of the hearing
which contains:
a) the place, the date, the hour of the opening
or of the closer of the hearing;
b) the composition of the court;
c) the name and the family name of the prosecutor
and the injured accuser;
d) personal data of the defendant or other personal
data which help to identify him, the personal data of the defence
lawyers, private parties and their attorneys.
2. Immediately after the closure of the hearing
the minutes, signed at the foot of each page by the keeper, shall
be submitted to the chairman to confirm it.
3. The minutes of the hearing shall be put in
the file of the court examination.
Article 346
The content of the minutes
1. The minutes describes the actions performed
in the hearing and in a summarized form describes the requests
and the conclusions of the prosecutor, injured accuser, defence
lawyers and attorneys of private parties.
2. The oral orders of the president are entirely
reproduced. The orders announced in the hearing by means of reading
are attached to the minutes.
Article 347
The request of parties regarding
the minutes
1. The parties have the right to request that
in the minutes are written any statement they have an interest
in. The written memorial presented by the parties supporting their
requests and conclusions are attached to the minutes.
2. The chairman may, even ex-officio, order that
the secretary reads special parts of the minutes in order to verify
its entirety and accuracy. The requests for correction or cancellation
and also those provided by paragraph 1 are subject to the decision
of the chairman.
S E C T I O N I I
PRELIMINARY ACTIONS
Article 348
Verification of the presence of
the parties
1. Before the start of the court examination the
chairman makes sureof the presence of the parties.
2. When the defence lawyer appointed ex-officio
is not present the chairman appoints as substitute another defence
lawyer according to article 49, paragraph 5.
Article 349
The repetition of writ of summons
1. The court, even ex-officio, orders the repetition
of the summons for trial when it results that the defendant or
the person subject to request for trial of the injured accuser
has not received the notification or the notification is uncertain.
Article 350
The absence of the defendant or
the defence lawyer
1. When the defendant, even in detention, or the
person subject to request for trial of the injured accuser does
not appear before the hearing and it results that the absence
is caused by force mojoure or any other obstacle which exempts
from the responsability the court, even ex-officio postpones or
suspends the judicial examination, fixes the date of the new hearing
and orders the renewal of the summons.
2. The reading of the decision fixing the new
hearing is equal to the notification for all of them who are or
must be considered as present.
3. The court decides on basis of paragraph 1 even
when the defence lawyer is absent, except when the defendant is
assisted by two defence lawyers and the obstacle to appear is
connected with one of them or when the hindered defence lawyer
has appointed a substitute or when the defendant requests to be
proceeded in the absence of the hindered defence lawyer.
4. When it results that the notification has not
been duly, the court decides the postponment of the judicial examination
and orders the renewal of the notification.
Article 351
The announcement of absence
1. When the defendant in free state or in detention
fails to appear before the hearing even having been notified and
there were no lawful excuses for the failure to appear the court,
after hearing the parties, declares his absence. In this case
he will be represented by the defence lawyer.
2. The decision stating the absence is void when
it is proven that it has come because of failure to receive notification
or absolute impossibility to appear.
3. In case the defendant is appeared after the
announcement of the decision, the court revokes the decision declaring
the absence. When the appearance is made before the start of the
final discussion, the defendant may request to be interrogated.
It shall be valid the previous actions, but when the defendant
proves that the notification has been delated not due to his fault,
the court orders the acquiring or the reproduction of the action
which thinks that are important to the sentence.
Article 352
The absence and voluntary abandonment
by the defendant
1. When the defendant requests or gives the consent
that the court examination is performed in his absence or, as
imprisoned, refuses to participate, he shall be represented by
the defence lawyer.
2. The defendant who after appearing leaves voluntarily
the hearing shall be deemed to be present, provided that he is
represented by the defence lawyer.
3. The provisions of paragraph 2 shall also apply
when the detained defendant leaves at any time of the court examination
or during its intervals.
4. The trial in absentia may be also held when
proven that the defendant is absconding.
Article 353
Forcible accompaniment of the defendant
1. The court may order the forcible accompaniment
of the defendant or of the person subject to a request for trial
of the injured accuser when has failed to appear or is declared
in absentia, in case his presence is necessary to the taking of
the evidence but not to his interrogation.
Article 354
Preliminary requests
1. The request dealing with jurisdiction, competences,
joinder or separation of the proceedings, legitimation of the
plaintiff and civilly sued may not be expaunded later on if they
have not been raised immediately after the legitimation of the
parties, except when the possibility to raise them appears only
during the court examination.
2. For the preliminary requests the right to speak
is enjoyed by the prosecutor, the injured accuser, the defendant
or his defence lawyer and one representative of each private party.
Objections shall not be allowed.
3. The preliminary requests are subject to a decision
of the court.
Article 355
The announcement of the opening
of court examination
1. After carring out the actions indicated in
the article hereto, the chairman announces the judicial examination
opened and explains the identity of the defendant and the accusation
in his charge.
Article 356
Introductory exposition and the
request for evidence
1. The prosecutor or the injured accuser exposes
in summarised form the facts subject to accustation and indicates
the evidence to be examined.
2. The defence lawyer of the defendant, the attorneys
of the plintiff and civilly sued respectively, indicate the facts
they intend to prove and request the taking of the evidence.
3. The taking of the evidence which have been
not requested beforehand shall be permitted when the requesting
party claims to not having been able to request them.
Article 357
The dispositions of the court relating
with evidence
1. After hearing the parties, the court renders
decision for the taking of the evidence.
2. During the court examination the parties may
present claims in relation to the taking of the evidence. The
court may, by decision, revoke the taking of the evidence which
are unnecessary or accept the taking of the evidence which have
been refused.
Article 358
The statements of the defendant
1. The chairman informs the defendant that he
has the right to make, in any stage of the court examination,
the statements he considers adequate. When during the statements
the defendant does not meet the object of the accusation the chairman
forwarns him and he continous, shall deprive him from the right
to speech.
2. The secretary reproduces entirely the statements
of the defendant, except when the chairman orders that the minutes
is kept in a summarized form.
S E C T I O N I I I
THE TAKING OF EVIDENCE
Article 359
The order of taking of the evidence
1. The court examination starts by taking the
evidence requested by the prosecutor or the injured accuser and
continues by taking those which are required by the defendant,
the defence lawyer and other parties.
Article 360
The appearance and oath of the
witness
1. Before starting the questioning, the chairman
forewarns the witness on his legal obligation and responsibility
to say the truth, except when the witness is a juvenile up to
fourteen.
2. The secretary of the court reads the statement
of the witness?s oath:
" I swear that I shall say the truth, all
the truth and I shall say nothing which is not true `.
After this, the witness declares: -I swear- and
gives his identity.
3. Failure to observe the provisions of paragraph
2 and 3 renders these actions null and void.
Article 361
The questioning of the witnesses
1. The questioning of the witnesses is made directly
by the prosecutor or the defence lawyer or attorney who has demanded
the questioning. After this, the questioning continues by the
parties, orderly.
2. The one who has demanded the questioning may
ask questions even after the other parties have terminated them.
3. There are prohibited the questions which influence
negatively to the impartiallity of the witness or which intend
to suggest the answers.
4. The president may permit the witness to look
at the documents prepared by him in order to help the memory.
5. The questioning of the juvenile witnesses may
be performed by the chairman, on parties requests and objections.
The chairman may be assisted by a member of the juvenile' s family
or by an expert of children education. When it is considered that
the direct questioning of the juvenile does not harm his psychological
condition, the chairman orders the continuation of the questioning
according to the provisions of paragraph 1 and 2. The order may
be revoked during the questioning.
6. During the questioning of the witness the chairman
may ask questions and, when there is the case, intervenes to provide
the order of the questioning, the truthfulness of the answers,
the accuracy of the interrogations and objections, as well as
to provide for the respect to the person.
Article 362
The challenge of testimony
1. In order to challenge, entirely or partly,
the content of the testimony, the parties may use the sayings
which are made previously by the witness before the prosecutor
or the judicial police and which are in the file of the prosecutor,
but only after the witness has testified to the facts and circumstances
which are appealable.
2. These sayings do not constitute evidence as
far as the admitted facts are concerned, but they may be considered
by the court to define the credibility of the questioned person
and shall be put in the file of judicial examination.
Article 363
The interrogation of experts
1. Interrogation of the experts is performed in
accordance with the provisions regarding the interrogation of
the witnesses at the extent they are applicable.
2. The expert has the right in any case to consult
with the documents, notes and publications which may be taken
even ex-officio.
Article 364
The interrogation of witnesses
and experts in their houses
1. In case of absolute impossibility to appear,
upon request of the parties, the court may decide that the interrogation
of the witness and expert are performed in their residing place,
notifying the day, hour and place of interrogation. The interrogation
may be also made by a sole judge of the panel in the presence
of the defendant and his defence lawyer.
2. The interrogation is made in the ways provided
by the above articles closed to the public. The defendant and
the private parties are represented by the defence lawyer and
their attorneys, but may participate even in person. The court
may allow the intervention of the defendant during interrogation.
Article 365
The interrogation of private parties
1. The interrogation of private parties starts
by the one who has requested it and continues with the interrogation
by the prosecutor, defence lawyers, attorneys of the parties and
the defendant. The one who started the interrogation may make
questions even after other parties.
2. The testimony may be challenged using the statements
made during the preliminary investigations by the interrogated
party and which are put in the file of the prosecutor, provided
that the party has testified to the facts and circumstances subject
to challenge.
Article 366
The appointment of the expert during
the trial
1. In case the court, ex-officio or upon the request
of the parties, disposes of an expertise, it shall immediately
call the expert who must express his opinion during the same hearing.
If this is not possible, the court shall interrupt the court examination
and fixes the date of a hearing to be held, but not later than
thirty days.
Article 367
The taking of new evidence
1. After the taking of required evidence the court,
if necessary, may ask additional questions and, even ex- officio,
disposes of the taking of additional evidence. In case there is
not possible to proceed in the same hearing, the trial is interrupted
and the datefor the hearing to be held later is fixed.
Article 368
The minutes of the taking of evidence
1. In the minutes of the taken evidence shall
be noted the identities of the witnesses, experts and interpreters,
as well as the forewarning be made to say the truth and their
responsability in case of giving false evidence, expertise or
interpretation.
2. The court secretary reproduces the questions
asked by the parties and the president , as well as the answers
of the interrogated persons.
3. In case the court decides for the minutes to
be held in a summarized form, the control of its accuracy is made
by the chairman.
Article 369
The permitted readings
1. The court, even ex-officio, decides to read
, entirely or partly, the acts of the file of court examination.
2. Upon request of the parties, the court may
decide to read the acts made during the preliminary investigations
when, because of unforeseen circumstances, they cannot be remake.
3. The reading of the statements made by an albanian
or foreign citizen, residing abroad, may be made if he is summons
and has failed to appear.
4. The officer or the agent of the judicial police,
who is interrogated as witness, may use the acts of the judicial
police to support his memory.
5. Instead of the reading, the court, even ex-officio,
may present the acts connected with proceedings.
Article 370
Reading of statements made by the
defendant
1. In order to object, entirely or partly, the
content of statements of the defendant, the parties may use the
statements made by him previously and which are in the file of
the prosecutor, if he has explained the facts and the circumstances
subject to objection.
2. In case the defendant is declared in absence
or has failed to appear, the court decides to read the minutes
of the statements made by him during the preliminary investigations.
3. In case the statements are made by persons
held as defendants in a connected proceedings, the court orders
the forcible accompaniment. In case the presence of the one who
makes the statement cannot be provided, the court, after hearing
the parties, decides the reading of the minutes which contain
the statements.
Article 371
The putting of the acts in the
court file
1. The minutes and the acts which are read, as
well as the documents presented by the parties and accepted by
the court are put, along with the minutes of the hearing, in the
court file.
S E C T I O N I V
NEW ACCUSATIONS
Article 372
The modification of the accusation
1. When during the court examination the fact
results different from what is described in the request for trial
and its judgement is not under the authority of a superior court,
the prosecutor modifies the accusation and proceeds with the relevant
one.
Article 373
The accusation for another offence
1. When during the court examination another criminal
offence connected with the offence subject to trial, according
to the article 79, letter b, or when an aggravating circumstance
which is not presented in the request for trial comes about, the
prosecutor communicates to the defendant the criminal offence
or the circumstance, provided that the examination is not in the
competency of another superior court.
Article 374
The accusation for a new fact
1. When during the court examination a new fact,
in the charge of the defendant , which is not mentioned in the
request for trial and for which must be proceeded ex-officio comes
about, the prosecutor proceeds in usual way, withdrawing the file
to continue the preliminary investigations. However, if the prosecutor
demands, the court may allow the examination during the same hearing
when the defendant agrees and the speed of proceedings is not
damaged.
Article 375
The modification of qualification
of the offence
1. The court may modify the qualification of a
fact made by the prosecutor, provided that the criminal offence
is under its competency.
Article 376
The rights of the parties
1. In cases provided by articles 372,373, and
374, the chairman makes known to the defendant that he may request
a time-limit for the defence. When the defendant requests a time-limit,
the chairman interrupts the court examination to perform it in
due time, but not later than ten days. The other parties may also
request the acquiring of new evidence.
2. The chairman orders the summons of the injured,
within a time-limit not less than five days.
3. When the defendant is tried in absentia, the
prosecutor requests the court to put the new accusation in the
minutes of the court examination the and to notify the defendant
for this. In such a case, the chairman interrupts the court examination
and fixes another hearing, respecting the time-limits provided
by paragraph 1.
Article 377
The transfer of the acts to the
prosecutor
1. When the prosecutor withdraws the accusation
and in the state that the proofs are it is certified that the
defendant is not guilty or it results that there is one of the
cases of the cessation, the court decides the acquittal or the
cessation. In contratry the court decides the transfer of the
acts to the prosecutor.
S E C T I O N V
FINAL DEBATE
Article 378
The holding of the debate
1. After the taking of the evidence, the prosecutor,
the defence lawyer of the defendant and the attorneys of the other
parties prepare and expose the relevant conclusions.
2. The civil plaintiff presents written conclusions
which must comprise, when the compensation for the damage is requested,
even the assessment of the missing profit.
3. The prosecutor, the defence lawyers and the
attorneys of the parties can make objections.
4. In any case the defendant and the defence lawyer
must be provided the final speech in case they request it.
5. The final debate may not be interrupted to
obtain new evidence, unless the court considers necessary.
6. Upon termination of the debate the chairman
declares the court examination closed.
C H A P T E R I I I
THE SENTENCE
S E C T I O N I
THE RENDERING OF THE SENTENCE
Article 379
The promptiness of the rendering
of the sentence
1. The sentence is rendered immediately after
the closure of the courtl examination.
2. The rendering of the sentence may not be postponed
unless there is the case of absolute impossibility. The postponment
is decided by the chairman with a motivated order.
Article 380
The evidence that may be used to
render the sentence
1. In the rendering of the decision the court
may not use evidence other than those which are obtained or verified
in the court examination.
Article 381
Collegial rendering of the sentence
1. The panel, led by the chairman, decides seperately
for each case connected with the fact and the law, with the execution
of the precautionary measures, punishments and civil liability.
2. The judges and assistant judges expose their
opinion and vote for each issue. The chairman collects the votes
starting from the judge who is less experienced and votes the
last himself.
Article 382
The compilation of the sentence
1. After being rendered, the sentence shall be
reasoned based upon the evidence and criminal law and it shall
be signed by all of the members of the panel.
Article 383
The elements of the sentence
1. The sentence shall contain:
a) the court that has rendered it,
b) the personal data of the defendant ot other
personal data which are useful for his identification and also
the personal data of the other privat parties,
c) the accusation,
d) the summarized exposition of the circumstances
of the fact and the evidence on which the decision is based as
well as the reasons why the court considers unacceptable the contrasting
evidence.
e) disposition, indicating the articlesof the
law which have applied,
f) the date and the signature of the judge.
2. The sentence rendered by a panel is signed
by all the members.
3. The sentence is void when the disposition or
the signatures of the members of the panel are missing.
Article 384
The announcement of the sentence
1. The sentence is announced in audience by the
chairman or a member of the panel by reading.
2. The announcement is considered equal to notification
for the parties which are or must be deemed to be present in the
hearing.
Article 385
The correction of the sentence
1. The court even ex-officio, proceeds with the
correction of the sentence when any clerical error must be corrected.
Article 386
The filing of the sentence
1. The sentence is filed in the secretary immediately
after the announcement. The clerk puts the signature and writes
down the date of the filing.
2. The notification regarding the filing and the
copy of the decision shall be communicated the defendant who is
declared in absentia.
S E C T I O N I I
THE DECISION OF DISMISSAL AND ACQUITTAL
Article 387
The decision dismissing the case
1. When the prosecution should not have initiated
or must not continue or when the criminal offence no longer exists,
the court decides the dismissal of the case, explaining the reasons
why.
2. The court decides the same way when the existence
of a requirement to proceed or of a cause which makes the criminal
offence inexistent is doubtful.
Article 388
The decision of acquittal
1. The court shall render a decision of acquittal
when :
a) the fact does not exist or it is not proved
that it exists
b) the fact does not constitute a criminal offence
c) the fact is not provided by law as a criminal
offence
d) the criminal offence is comitted by a person
who cannot be charged or convicted
e) it is not proved that the defendant has committed
the offence he is accused for.
f) the fact has been committed under lawful reasons
or an unpunishability reason and also when there is doubt about
their existence.
Article 389
Dispositions on the precautionary
measures
1. By a decision of acquittal or dismissal the
court orders the release of the defendant from the custody and
declares the abolition of the other precautionary measures. The
same way is disposed of when the decision has been suspended conditionally.
S E C T I O N I I I
THE CONVICTION
Article 390
The sentencing of the defendant
1. When the defendant is found guilty of the criminal
offence which is attributed to him, the court renders a conviction,
determining the the type and the duration of the punishment.
2. When the defendant has committed several criminal
offences, the court defines the punishment for each of them and
applies the provisions regarding competition of the criminal offences
and punishments.
Article 391
The declaration for the falsity
of the documents
1. The falsity of an act or document, proved by
a decision of the court, is declared in the ordering part, which
setsforth, as the case is, the entire or partial cancellation,
reinstatement, the reproduction or modification of the act or
the document, determining also how this must be done.
2. The declaration of the falsity may be appealed
along with the final decision.
Article 392
The obligation to pay the fine
1. When the convicted does not have earnings or
attachable properties, the court charges the one that is civilly
liable for the obligations of the defendant to pay an amount equal
to the fine.
Article 393
The obligation for the expenses
1. The convicted is charged with the payment of
the procedural expenses connected with the criminal offence, which
the punishment is referred to.
2. The persons convicted for the same criminal
offence or for connected criminal offences are obliged commonly
to pay the expenses. The persons convicted in the same trial for
criminal offences which have no connection between them are obliged
to pay solidarily only the common expenses related to the criminal
offences for which the conviction is rendered.
Article 394
The liability of the civilly sued
1. In the decision of punishment the court disposes
even of the request for the restitution of the object and the
compensation for the damage, as well as of the way of the payment
of the obligation.
2. In case liability of the civilly sued is accepted
, he is obliged solidarily with the defendant to restitute the
object and compensate the damage.
Article 395
Assessment of the damage
1. When the obtained evidence make possible the
assessment of the damage, the court disposes of the right of compensation
of the damage in its entirety and transfers the act to the civil
court.
2. Upon request of the civil plaintiff, the defendant
and the civilly sued may be obliged to pay an amount approximately
equal to the damage which is deemed to be proved. This obligation
is executed immediately.
Article 396
The temporary execution of the
civil liability
1. Upon the request of the civil plaintiff, when
there are lawful reasons, the obligation for the restitution of
the object and the compensation for the damage is declared temporary
executable.
Article 397
The obligation of the private parties
to pay procedural expenses
1. Upon decision which accepts the request for
the restitution of the object or the compensation for the damage,
the court obliges solidarily the defendant and the civilly sued
to pay the procedural expenses to the favour of the civil plaintiff,
except when evaluates that it must decide the entire or partial
compensation of them.
2. When the request is rejected or the defendant
is found innocent, except when he is irresponsible, the court
obliges the civil plaintiff to pay the procedural expenses made
by the defendant and the civilly sued in relation to the civil
lawsuit, but in any case when there are no reasons for the complete
or partial compensation. When it is proved the gross negligence,
the court may also charge with the compensation of the damages
caused to the defendant or the civilly sued.
Article 398
The obligation of claimant to pay
the expenses and damages
1. In case the court acquits the defendant for
a criminal offence which is proceeded on complaint, because the
fact does not exist or the defendant has not committed it, the
claimant is charged with the payment of the expenses for the proceedings
made by the state, as well as with the expenses and the compensation
of the damage to the favour of the defendant and the civilly sued.
Article 399
The announcement of the decision
compensating the moral damage
1. Upon the request of the civil plaintiff, the
court decides the announcement of the conviction, as a method
of reinstating of the moral damage arising out from by the criminal
offence.
2. The announcement of the decision is made, fully
or summarily, in the newspapers indicated by the court, on the
expenses of the defendant or civilly sued.
3. If the announcement is not made in the fixed
time-limit, the civil plaintiff may operate personally having
the right to ask for the expenses to be covered by the convicted.
C H A P T E R I V
SPECIAL TRIALS
S E C T I O N I
DIRECT TRIAL
Article 400
The cases of the direct trial
1. When the defendant is arrested in the commission,
the prosecutor may present before the court, within twentyfour
hours, the request for the evaluation of the arrest and the simultaneous
trial.
2. If the arrest is considered as being right
and there is no need for other investigations, it is proceeded
immediately in the trial, whereas when it is not found correct,
the acts are restituted to the prosecutor. But even in the last
case, when the defendant and the prosecutor give the consent,
the court proceeds with the direct trial.
3. The prosecutor may proceed with the direct
trial even with the defendant who, during the interrogation, has
confessed and his guilty is sure. In this case the defendant is
summoned to appear within fifteen days from the date of the registration
of the criminal offence.
4. When the criminal offence, for which is requested
the direct trial, is connected with other criminal offences for
which the conditions of this type of trial are missing, it is
proceeded separately for other offences and other defendants,
except when this separation impairs the investigations. When the
joinder is necessary, the rules of the usual trial shall apply.
Article 401
The preparation of the direct trial
1. In case the prosecutor thinks that must proceed
with a direct trial, he orders the appearance of the defendant
in the hearing. When the latter is free the time-limit for the
appearance may not be less than three days.
2. The order, along with the respective acts,
are sent in the secretary of the court.
3. The defence lawyer is notified without delay
by the prosecutor of the date of the trial. He has the right to
read and make copies of the documentation subject to completed
investigations.
Article 402
The performance of the direct trial
1. During the direct trial the provisions of the
chapter for the court examination shall apply.
2. The prosecutor, the defendant and the civil
plaintiff may introduce other evidence during the court examination.
3. The defendant has the right to ask for a time-limit
up to three days to prepare the
defence. In this case the court examination shall
be postponed until the new hearing, which shall be performed after
the termination of the time-limit.
4. The defendant may require the accelerated trial.
The court, after taking the opinion of the prosecutor and finds
the request as right, decides to continue the trial, observing
the rules specified for the accelerated trial. On contrary, it
continues the direct trial.
S E C T I O N I I
ACCELERATED TRIAL
Article 403
The request for the accelerated
trial
1. The defendant or his special attorney may require
that the case terminates until the court examination starts.
2. The request is made in writting, whereas during
the hearing orally. The written request is deposeted in the secretary
of the court at least three days before the date fixed for hearing.
Article 404
The dispositions of the court for
the request
1. When the court evaluates that the case may
be resolved in the state that the acts are, decides to perform
the accelerated trial. On contrary, it refuses the request.
2. The rejected request may be represented until
the final conclusions of the parties are made.
Article 405
The hearing of the accelerated
trial
1. The hearing is performed in the presence of
the prosecutor, the defendant and his defence lawyer, as well
as the private parties.
2. The court makes the verifications connected
with the constitution of the parties.
3. In case the defence lawyer of the defendant
fails to appear, the court appoints another defence lawyer as
substitute.
4.When the defendant fails to appear in the hearing
because of lawful excuses, the court fixes the date of the new
hearing and orders that the defendant is given notice.
5. After the request of the defendant is read,
the chairman announces the opening of the debate.
6. The prosecutor introduces in substance the
results of the preliminary investigations and gives his opinion
for the request of the defendant.
7. In case the civil plaintiff does not accept
the accelerated trial, the civil lawsuit is not subjected to trial.
Article 406
The sentence
1. In case of conviction, the court commutes the
punishment by imprisonment to one third. The sentence by life
imprisonment shall be replaced by twentyfive years imprisonment.
2. If requested, the court decides even for the
civil lawsuit.
3. The prosecutor and the defendant may appeal
the sentence of the court.
4. There shall be applicable the provisions of
chapter I I I of this title as long as they are compatible.
T I T L E V I I I
COMPLAINTS
C H A P T E R I
GENERAL RULES
Article 407
Cases and means of complaining
1. The law provides the cases in which the decisions
and writs of the court may be complained, as well as the means
of complaining.
2. The complaint of the writs of the court, unless
the law otherwise provide, may be made along with the complaint
of the decision.
3. The means of the complaining are: the appeal,
the recourse to the Cassation Court and the request for review.
4. The right to appeal belongs to the one whom
the law acknowledges expressly. When the law does not make any
difference amongst the parties, this right belongs to each of
them.
5. In case the appeal is made before the incompetent
court, this shall transfer the acts to the competent court.
Article 408
The appeal of the prosecutor
1. The prosecutor of the district and the prosecutor
in the court of appeal may appeal, in cases provided by law, dispite
the request made during the hearing by the representative of the
prosecutor. The prosecutor in the court of appeal may appeal dispite
the appeal or the opinion of the district prosecutor.
2. The appeal may be made even by the prosecutor
of the hearing who, in this case , may participate in the court
of appeal with the authorisation of the prosecutor in this court.
Article 409
The appeal of the injured accuser
1. The injured accuser may appeal, personally
or through his attorney, either for criminal or civil matters.
He may withdraw the appeal made by the attorney.
Article 410
The appeal of the defendant
1. The defendant may appeal personally or through
his defence lawyer. The tutor of the defendant may make any appeal
that the defendant is entitled to.
2. The sentence rendered in absentia, is subject
to the appeal of the defence lawyer only in case he is provided
with a power of attorney issued as provided by law.
3. The defendant may withdraw the appeal made
by his defence lawyer, but when he is not legally capable the
consent of the tutor must be taken.
4. The appeal of the defendant against the sentence
or acquittal, extends its effects even in that part of the decision
that defines the obligation for the restitution of the property,
the compensation for the damage and the payment of the court procedure
expenses.
Article 411
The appeal of the civil plaintiff
and civilly sued
1. The civil plaintiff may appeal the points of
the sentence which are connected with the civil lawsuit and, in
case of acquittal, only for the effects of the civil liability.
2. The civil plaintif may appeal the disposition
of the sentence regarding the liability of the defendant and the
civilly sued for the restitution of the property, the compensation
for the damage and procedural expenses.
Article 412
The form of appeal
1. The appeal can be made by a written act, in
which there are indicated the decision subject to appeal, its
date, the court which has rendered it as well as the points of
the decision subject to appeal, the reasons of appeal and what
is requested.
Article 413
The submission of appeal
1. The act of appeal is submitted to the secretary
of the court which has rendered the
decision subject to appeal. The secretary of the
court notes the day of receipt on it and the name of the person
who submits it, attachs it with the acts and, when required, issues
the certification of receipt.
2. The private parties, the defence lawyers and
the attorneys may submit the act of appeal even to the secretary
of the court of the place of their residence or to a consul abroad.
In these cases, the act is sent immediately in the secretary of
the court which has rendered the sentence.
3. The appeal may be sent as a registered letter
to the secretary of the court which has rendered the sentence.
The secretary of the court writes in the envelope the day of its
reception and encloses it with the acts. The appeal is considered
as made on the date of the sending of the act by the registered
letter.
Article 414
The notification of the appeal
1. The act of appeal is notified to the prosecutor,
the defendant and the private parties by the secretary of the
court which has rendered the sentence.
Article 415
The time-limits of appeal
1. The time-limit to appeal is ten days. This
time-limit starts from the next day of the announcement of the
sentence or the notification of decision.
2. The one who has made an appeal has the right,
up to five days before hearing, to present to the secretary of
the court which shall examine the case, other grounds connected
with the appeal.
3. The time-limits provided by this article may
not be extended without any reason, except in cases provided by
law.
Article 416
The extention of appeal
1. The appeal made by a defendant, when is not
based only in personal grounds, is also valid for the other defendants.
2. The appeal made by the defendant is also valid
for the civilly sued.
3. The appeal of the civilly sued shall also be
valid for the defendant for criminal effects.
Article 417
The suspension of the execution
1. The execution of the decision under appeal
is suspended until the trial in the court of appeal terminates.
In case of recourse to the Court of Cassation or request for review,
the decision may be suspended by an order, respectively, of the
President of the Court of Cassation or of the court of appeal.
2. The appeal of the decisions related with the
personal freedoms do not have pending effects.
Article 418
The renouncement from the appeal
1. The prosecutor who has made the appeal may
renounce from it until the start of the court examination, whereas
the renouncement of the prosecutor in the court which examines
the appeal may be made until the start of the final debate.
2. The defendant and the private parties may renounce
from the appeal even through the defence lawyer or the attorney.
3. The statement of renouncement is made in the
forms and ways provided for the submission of appeal, as the case
may be, in the court which has rendered the sentence or in the
court which examines the appeal.
Article 419
The sending of the acts
1. The court which has rendered the sentence shall
send, within ten days, to the court which shall examine the case,
the acts of proceedings and the appeal.
Article 420
The dismissal of the appeal
1. The Appeal is dismissed:
a) when it is made by the one who is not legitimated;
b) when the decision is not subject to appeal;
c) when there are not respected the provisions
regarding the form, submission, sending, notification and the
time-limit of appeal;
d) when it is renounced from appeal.
2. The dismissal may be declared, even ex-officio,
in any state or stage of the proceedings.
3. The decision of dismissal is notified to the
one who has made the appeal and it is subject of appeal to the
Court of Cassation.
Article 421
The charging of expenses
1. Upon the decision rejecting or declaring the
claim unacceptable, the private party who has has made it is charged
with the expenses of proceedings.
2. The co-defendants who have been participated
in trial are charged with the expenses jointly with the defendant
who has made the claim.
3. In the trials of claims made only for civil
interests, the expenses shall be charged to losing private party.
C H A P T E R I I
THE APPEAL
Article 422
The right to appeal
1. The prosecutor, the defendant and the private
parties may appeal the decisions of the first instance court.
Article 423
The counter appeal
1. The party who has not made the appeal within
the time-limit , may make an opposing appeal within five days
from the day he has received the notification of the appeal of
the other party.
2. The opposing appeal is submitted and notified
according to the general rules of appeals.
3. The opposing appeal does not produce any effect
to the co-defendant who has not made any appeal.
4. The opposing appeal loses the effects in case
the appeal of the other party or its renouncement are not accepted
to be reviewed.
Article 424
Competent court
1. The appeal of the sentences of the district
court is subject to the decision of the court of appeal.
Article 425
The limits of examination of the
case
1. The court of appeal examines the case thoroughly
and it does not restrict itself to only the grounds presented
in appeal. It examines even the part which belongs to the co-defendants
who have not made appeal within the limits provided by the reasons
explained in the appeal.
2. When the appellant is the prosecutor, the court
of appeal:
a) may give to the fact a more serious legal qualification,
alter the classification or extend the length of punishment, alter
the precautionary measures and impose any other measure ordered
or allowed by law;
b) may sentence the one who is acquitted, acquit
him under a cause different from that accepted in the decision
subject to appeal, impose the measures indicated in the letter?a?;
c) may impose, alter or exclude supplementary
punishment and precautionary measures.
3. When appellant is the defendant only, the court
may not impose a heavier sentence, a heavier precautionary measure,
acquit under a cause less favourable than that of the decision
subject to appeal.
Article 426
The preliminary trial actions
1. The president of the college of the court of
appeal orders the summons of the defendant, civil plaintiff and
the civilly sued, as well as the defence lawyers and their attorneys.
The time-limit may not be less than ten days.
2. The writ of summons is void when the defendant
is not surely identified or when the place, the day and the hour
of appearance are not fixed exactly.
Article 427
Remaking of the court examination
1. When a party requests the retaking of the evidence
administered during the court examination in the first instance
or the taking of new evidence, the court, if evaluates it necessary,
decides the entire or partly reperformance of the judicial examination.
2. The evidence found after the trial in the first
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