In recent days there has been outrage on the side of the opposition about the transfer (or “burial”) of the Dossier 184 from the Serious Crimes Prosecution to the Regional Prosecution of Dibra. Opposition leader Lulzim Basha accused Temporary General Prosecutor Arta Marku and her sidekick at the Serious Crimes Prosecution, Donika Prela, of “covering up a criminal group.”
The group in question would comprise the large network of Socialist Party officials (including Prime Minister Edi Rama), civil servants, and mafia figures engaged in vote buying and voter intimidation evidenced by the wiretaps published by the Voice of America and Bild.
But precisely this “criminal group” is one of the reasons that this hot dossier was passed back to a regional prosecution office, with less staff and expertise to deal with such a sprawling investigation. Namely, the Serious Crimes Prosecution Office had concluded that the suspects involved in dossier 184 did not form a “structured criminal group” and as such fall outside the competence of the Serious Crimes Prosecution Office.
This seems counterintuitive, because the criminal group in the schema above seems quite “structured,” following mainly the lines of political and party hierarchy. But the problem is to prove this – and that’s precisely where the problem resides.
In order to gain a better understanding, we have to go back to 2017.
According to the logical framework of the EURALIUS IV mission, one of its specific objectives was to “align the Albanian criminal justice system to EU standards.” As part of this objective, EURALIUS assisted
the [Ministry of Justice (in particular the Codification Department) in reviewing the Criminal Code and Criminal Procedure Code, in particular finalizing the work of the “Task Force” and working group on the Criminal Procedure Code over the last two years, in accordance with EU and Council of Europe standards and in particular with regard to the implementation of the 2012 constitutional reform limiting the immunity of judges and deputies.
We already know the great results of EURALIUS in their attempt to “limit the immunity of […] deputies.” So let’s see how the amendments to the Criminal Procedure Code worked out in practice.
In December 2016, Parliament passed the amendments to the Criminal Procedure Code with the votes of the then ruling coalition of Socialist Party and Socialist Movement for Integration. The Democratic Party voted against. These amendments changed the jurisdiction of the Anti-Corruption and Organised Crime Court, and therefore the competency of the Serious Crimes Prosecution (and the future SPAK).
According to the new art. 75/a(b) of the Criminal Procedure Code,
The Anti-Corruption and Organised Crime Court shall adjudicate […] any crime committed by structured criminal group, criminal organization, terrorist organization and armed gang pursuant to the provisions of this Code.
These four types are defined in art. 28 of the Criminal Code. The one relevant for our argument here is the definition of “structured criminal group”:
The structured criminal group is a special form of cooperation, composed of three or more persons, which have the purpose of committing one or more criminal offences, and which aim at achieving material and non-material benefits.
The structured criminal group for the commission of a criminal offence is not established spontaneously and it is not necessary to distinguish it for consistent membership, assignment of duties, elaborated structure and organization.
What happened in the case of dossier 184 is that the Serious Crimes Prosecutor in charge of the dossier (and SPAK candidate), Klodian Braho, single-handedly changed the charge of “structural criminal group” to “complicity,” defined as follows in art. 25 of the Criminal Code:
Complicity shall be the commission of the criminal offence by two or more persons in agreement with each other.
One can easily see how a maneuver from “structured criminal group” to “complicity” is easy to defend in almost any case, as there is no clear jurisprudence about their distinction. However, the effect of this simple change in criminal charge is enormous: it removes the dossier from the privileged and protected sphere of the future SPAK to the underfunded and understaffed Regional Prosecution Offices.
So here we have precisely the recipe for making sure that politicians and criminal groups will never be touched by the SPAK, as long as it doesn’t exist. Cases can be easily removed from the Serious Crimes Prosecution Office to regional offices by demoting the charges (after a lengthy investigation) from “structured criminal group” to “complicity,” as long as no one in particular has been indicted. This can happen purely on the discretion of the prosecutor in charge of the case, and cannot be revoked or changed by a higher authority.
At Exit we already warned in February 2017 about this problem of loose definitions and loopholes that will undermine the effectivity of SPAK, and in 2018 we reported on the massive amount of drug trafficking dossiers that were moved from the Serious Crimes Prosecution Office to the Regional Prosecution Offices after prosecutors declared their non-competence, in the same way that Braho did.
Perhaps the most egregious case was the 2018 record shipment of 613 kg cocaine from Colombia to Durrës, which was moved from the Serious Crimes Prosecution to the Durrës Prosecution because – again – there was apparently no “structured criminal group” involved. Multiple investigation files were subsequently stolen from the Durrës Prosecution offices, after which the prosecutor in charge, Donika Prela, was promoted to the head of the Serious Crimes Prosecution. Where she now has overseen the “burial” of dossier 184 in Dibra.
All of these shenanigans have been possible by two interrelated factors: 1) badly drafted legislation that apparently allows the easy demotion of cases from the Special Anti-Corruption jurisdiction to the jurisdiction of regular courts (and thus into the political sphere of influence); 2) a misalignment between this new legislation and the violated deadlines for the establishment of SPAK, allowing dossiers to fall conveniently “between the cracks.” With a bit of luck, SPAK will only be established when the entire vote buying operation of the Socialist Party has been “brought to safety” at the local prosecution offices, without proper funding and personnel, exposed to political pressure from all sides.