Earlier this week, EU ambassador Romana Vlahutin declared that the amendments to article 491 of the Criminal Procedure Code were made in compliance with European standards. Her comment, a testament to her overstepping her role as ambassador by interpreting laws and legal processes, was made, strangely, in a Voice of America interview in Albanian. Among other things, Vlahutin stated:
This measure complies to European standards as defined by the European Court of Human Rights, the European Convention on Extradition, and the European Arrest Warrant framework decision.
Yesterday, Minister of Interior Affairs Fatmir Xhafaj also asserted that:
This point (f) of article 491 is up to international standards. We did not come up with it and we are not the only ones to have it. It is a definition lifted verbatim from article 3 of the Second Additional Protocol to the European Convention on Extradition.
Article 3 of the Second Additional Protocol to the European Convention on Extradition provides:
When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited.
Meanwhile, article 491/f of the Criminal Procedure Code provides that “extradition may not be granted”:
f) when the requested person is tried in absentia, except in case the requesting State provides safeguards for the revision of the decision
There is no need to go into a legal interpretation; a simple reading of the two articles makes it clear that Vlahutin and Xhafaj are mistaken in claiming that the Albanian legal definition is identical to that of the European Convention. Where the Convention recognizes the refusal of extradition only when the convicted person has not had his minimum rights respected, the Albanian definition impedes practically any extradition for persons tried in absentia.
Fundamentally, the European Convention states that the extradition request may be denied when the requested party is of the opinion that “the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence.” These minimum rights include:
Immediate notification of the accusation, being granted the necessary time and conveniences to prepare one’s defense and communicate with an attorney, the right to be present at trial, a timely trial with no unjustified delays, the right to legal counsel, free if necessary, the right to crossexamine the prosecution’s witnesses, the right to a translator, the right not to incriminate oneself, the right to appeal decisions, the right to compensation if the conviction is judged to be unfair or is pardoned as a result of an irregular process.
However, even in these cases, the Convention states that “extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence.”
Whereas article 491/f of the Albanian Criminal Procedure Code states that extradition may not be granted, that is in any case, if the requested person is tried in absentia. Article 491/f also provides that extradition may be allowed if “the requesting State provides safeguards for the revision of the decision.”
In any case, no matter whether art. 491/f is in formal compliance with the European Convention on Extradition, the procedure through which it was approved in Parliament was, as we argued before, illegal.
