Draft law “On a change in the Criminal Code”

The draft law was submitted to the Albanian Parliament at the initiative of three deputies “On an amendment to the Criminal Code of the Republic of Albania” regarding the repeal of the first paragraph of Article 262 of the Criminal Code “Organizing and participating in illegal gatherings and demonstrations” as incompatible with the Constitution of the Republic of Albania. As a legislative stimulus for this initiative seems to have served the decision no. Article 262 of the Criminal Code The legal gap produced was addressed simultaneously with the abrogation, assigning the Assembly the task of fulfilling the legal norm.

As we have brought to the attention once again, it seems that there is a proactive approach of the deputies towards the exercise of the right they have to propose laws. In the legislative optics and the process as such, it seems useful that each MP should be “visible” in exercising the representative mandate without remaining in the shadow of power as a whole.

The beginning of this draft law begins with the raising of a criminal case by the Prosecution of the Shkodra District Court, which filed in this Court, the request for the trial of the criminal case against the defendant AB, for committing the criminal offense “Organizing and participating in gatherings of illegal manifestations “provided by Article 262, first paragraph, of the CC. With the conclusion of the case by the Shkodra Court of First Instance, the case was raised in the Shkodra Court of Appeals, where with an intermediate decision the latter decided to suspend the hearing of the defendant’s case for this criminal offense and addressed the Constitutional Court with a request with object: Repeal of the phrase “without first obtaining permission from the competent body according to special provisions” in the first paragraph of Article 262 CC, as incompatible with Articles 17, point 1 and 47 of the Constitution.

In its decision no. 24/2021, dated 07.06.2021, the Constitutional Court has stated that the freedom of peaceful and unarmed assembly, as well as participation in them, is guaranteed in Article 47, point 1 of the Constitution. This freedom is not limited by the purpose of the gathering, it is enough for it to be peaceful. The term “gathering” is defined by law no. 8773/2001 with collections; manifestations, meetings and parades of a peaceful and unarmed nature, in which a group of persons express their requests and views on issues of interest to them, including urgent rallies (Article 2, point 5 of the law), which take place when there are urgent circumstances (Article 7 of the law). On the other hand, Article 47, point 2, of the Constitution provides that “peaceful gatherings in squares and places of public crossing are conducted according to the procedures provided by law. In this way, the Constitution has delegated to the legislator the regulation of the procedures to be followed when peaceful rallies take place in squares and places of public crossing, as in these types of cases the exercise of freedom of peaceful assembly affects the exercise of freedom of movement of citizens. others, guaranteed by Article 38 of the Constitution.

In the present case, the Court finds that Article 262, first paragraph, of the Criminal Code uses the expression “without first obtaining permission from the competent body according to special provisions”, for holding rallies in squares or public crossings, while law no. 8773/2001 for these types of gatherings stipulates that the written notification of the State Police is required. The word “permission” means the approval or right given to someone to do something, to perform a certain job or activity, to use or receive something, while the word “notice” means to announce or put on know someone. From this linguistic comparison it is concluded that we are talking about two different terms, which include two different types of behavior, in which it is clear that the permit protects only citizens who do not participate in the rally, while the notice serves not only them but also participants in the rally. These two terms are not in harmony with each other creating uncertainty, ambiguity and violating the principle of legal certainty by the provision under review.

In this situation, the organizers and participants in the rally are unclear which law they should refer to in order to exercise their freedom of assembly and not bear criminal responsibility, ie whether they should get permission (submit a request and wait for confirmation) or whether should simply make written notice. The same ambiguity is created for the State Police and criminal prosecution bodies, which can not be resolved by methods of interpretation. The Court considers that the expression under consideration, despite pursuing a legitimate aim, such as the peaceful conduct of the assembly and the protection of public safety and the rights of others in squares and public crossing points, violates the principle of legal certainty due to ambiguity in content, which creates difficulties in the recognition, understanding and implementation of this criminal norm by individuals and law enforcement agencies. In view of the above, the Court, in order to give the legislator sufficient time to adopt the new legal rules in accordance with its decision, considers that the Assembly should review Article 262, first paragraph, of the CC in in terms of its harmonization with Article 47 of the Constitution, according to the reasoning of this decision, within the 6-month period, which starts from the promulgation of this decision and lasts until its entry into force. The Court has assessed as grounded the claim of the Shkodra Court of Appeals for incompatibility of Article 262 CC with Article 47 of the Constitution.

In conclusion, it decided to repeal the expression “previously obtained permission from the competent body according to special provisions” in the first paragraph of Article 262 of the Criminal Code.

Below you may find in the link the draft law “On an amendment to the Criminal Code of the Republic of Albania”.