On January 31, the government of Prime Minister Edi Rama approved changes to several laws that will essentially give the government new powers, including restricting citizens’ movement, arresting citizens without court orders, being able to search property at a whim, and being able to tap phones and social media communications as they wish.
The EU Delegation and US Embassy in Albania gave their support for the Rama government’s plan to use the changes to seize assets of organized crime members.
This so-called “Special Anti-KÇK Package” has been presented by Rama as an important step in the “fight against terrorism, mafia and organized crime” and he says it will “destroy the foundations of crime nests.”
KÇK (Kap Ça të Kapësh – grab what you can) is a term coined by Rama to describe prosecutors and judges who before being dismissed by the vetting commission “grab what they can” by abusing power.
But the reality is that the laws have created a special unit that reports to the prime minister, outside of the justice system and without any supervision. The powers of these ‘private’ police and intelligence services will create ample room for abuse and political use, fear many members of civil society.
It is not clear how these changes were developed, who was consulted, or which experts advised, and how they were funded. What is clear is that the new structures will imitate the powers of the Special Anti-corruption Prosecution (SPAK) and National Bureau of Investigation (BKH), whilst operating outside of the conventional court system.
Concerns raised by the proposed draft law
The changes brought by the Rama government raise a number of concerns due to the following provisions.
- A new investigation unit is established under the State Police which will report to the Director-General of Police. It is divided into the Directorate of Counterterrorism and the Directorate of Organized Crime. They will be housed in a special building and there will be 12 regional directorates located across the countries 12 regional police directorates.
- These units will investigate any crime in the Criminal Code- from robbery to drug dealing, murder, prostitution, and corruption of public officials including judges and prosecutors. It will also investigate beneficiaries of the state budget, concessions, PPPs and subsidies.
- The structure will enable the restriction of the right of movement of any individual in a given territory- this could be a town, region, or in and out of the country. This decision will be taken by a prosecutor, not the court.
- The government will enable the police to confiscate a passport or travel document. The order will be communicated to the prosecutor who then sends to the court within 48 hours.
- The structure and BKH have the right to initiate a property investigation when they suspect that an individual is living beyond their means. This also extends to spouses, their children, and cohabitants over the last five years.
- The police will receive information from any public or private institution; will receive access to personal data stored with mobile carriers, including all text messages and phone conversations of any kind, as well as tapping phones; will receive access to all personal data stored by internet providers, as well as electronic registries of private and state entities. All this will be done without the consent of the prosecutor or the judge.
- Any surveillance in public places, the detection of the individual through special equipment, physical search of persons, control of public places or state entities, secret surveillance of persons in different places will only be carried out with the approval of the local police or on the officer’s own initiative.
- The police will be able to obtain any private information such as bank accounts, civil records, property, business shares, and any other data from private or state entities, without the permission of the prosecutor or the court.
- The police may seize the evidence collected depending on the Prosecutor’s order. The evidence collected from them will be used according to the prosecutor’s assessment.
Previous attempts to create an investigation unit under government control
This anti-corruption and counterterrorism package is the fifth attempt by the government who has systematically attempted to establish an investigation unit under the control of the executive rather than the justice system.
In July 2014, the Assembly adopted Law 108/2014 on State Police. Chapter VI of this law provided for the establishment of the National Bureau of Investigation (BKH), created according to the American FBI model.
The new institution, with investigative powers in the field of corruption and organized crime, would be a special structure in the State Police, under the direct responsibility of the Ministry of Internal Affairs, at the time headed by Saimir Tahiri, who would also to appoint the director of this institution.
The law was declared unconstitutional.
The Constitutional Court found that Chapter VI threatened the right of citizens to a fair trial, as investigations would be conducted by the Ministry of the Interior, in violation of fundamental human rights enshrined in the Constitution.
Second time: In February 2016, the Rama government introduced a bill, with the BKH director being again appointed by the interior minister, but only with the approval of the Prosecutor General.
The BKH would tackle corruption, abuse of office, money laundering and some other serious crimes (more specifically Articles 254/1, 248, 256, 257/a, 258, 287, 294, 295/a, and 328 of the Criminal Code).
The bill was later withdrawn by the government after it failed to pass it to Parliament before the end of the parliamentary session on summer vacations.
Third time: In October 2016, the Assembly unanimously passed one of the most important laws on justice reform: Law 95/2016 on the Organization and Functioning of Institutions to Fight Corruption and Organized Crime. The law is still in force, but the SPAK and BKH have not yet been created.
Fourth time: On November 7, 2017, under the law “Force of Law”, the government set up a Task Force under the full control of the Ministry of Internal Affairs, which doubles the Prosecution Office.
The Task Force is responsible for investigating organized crime, which according to Law 95/2016 is under the jurisdiction of the Special Prosecution. The Task Force comprises of Regional Special Task Forces in each district, under the direction of the Central Special Task Force, each with directorates, directors, specialists and related agents.
In fact, this is the same structure as the National Coordination Committee (KKK) of the BKH in the 2014 law, which was later declared unconstitutional by the Constitutional Court.