Two articles of the draft for a new Criminal Code, presented by the government, appear to eliminate the risk of punishment for officials for two very important criminal offenses, abuse of office and violation of equality in tenders, by establishing the concept of “criminal intent”, which makes the prosecution’s proof of such violations practically impossible.
Arben Ahmetaj, the former deputy prime minister on the run from justice, faces one of two criminal cases against him, one for abuse of office, through failure to fulfill a legal obligation. According to the 2023 indictment, Ahmetaj failed to implement a final court decision, causing millions of euros in damage to the Myderizi family. Ahmetaj has denied the charges of absconding.
Whatever the case, if the new Criminal Code proposed by the government for public discussion were to be approved, it would likely save Ahmetaj from this charge for the simple reason that the criminal offense envisaged this time requires the prosecution to prove not only the action or inaction of the official that caused the damage, but must also prove that the official acted with criminal intent. And since criminal intent is found within the mind of the person suspected of the violation, the chances are that the court will be forced to dismiss the lawsuit as unfounded in law and evidence, since criminal intent cannot be proven.
Abuse of office and violation of equality in public tenders or auctions are two major changes envisaged in the proposals for amending the Criminal Code. The government has distanced itself from the authorship of the legal changes and says that the Code was drafted by a group of experts, but to date, none of the mentioned experts has come out publicly to defend their work.
The intervention in these two articles practically invalidates the entire concept of abuse of office by public officials or that of creating unequal conditions for economic operators in cases of public tenders or auctions.
“1. A public official, directly or indirectly [SIC] charged with the administration of public funds, who intends, intentionally and with criminal intent [SIC], to cause economic damage to the activity of his institution or another person, because: a) exercises his powers illegally; b) exceeds his legal authority by using funds outside their intended destination, or c) creates obstacles to fulfilling a duty arising from his legal duties or from a court decision, when the action does not constitute a more serious criminal offense, shall be punished with imprisonment of up to four years,” reads the proposed draft, which fundamentally changes the current legal concept of abuse of office, limits this criminal offense to the field of administration of public funds or requires prosecutors to prove that the official acted with “criminal intent.”
Unlike the proposed version, the current Criminal Code in Article 248 is much more laconic, concise and clear. It states: “The intentional commission or failure to commit acts or omissions contrary to the law, which constitutes a failure to properly fulfill one’s duty, by a person exercising public functions, when they have brought him or other persons unjust material or non-material benefits or have harmed the legitimate interests of the state, citizens and other legal entities, if it does not constitute another criminal offense, is punishable by imprisonment for up to seven years.”
As can be seen, the drafters of the new Criminal Code needed 162 words to replace a 71-word article, which simply requires that an official be held liable if an action or inaction contrary to the law has caused damage to the state or citizens in material or immaterial benefits for himself or others.
No more violations of equality with tenders
The current Criminal Code provides in Article 258 the criminal offense of violating equality in tenders or public auctions, which stipulates that the creation of unequal conditions in tenders or auctions, in any form or regardless of the intention of the offender, is punishable by a fine or imprisonment of up to three years.
Unlike the current article, the proposal in the new code in Article 324 provides that public procurement officials will be held liable only in cases where the above violation was committed "for the purpose of profit".
"The intentional commission of unequal actions by a person charged with state functions or in public service, which for the purpose of profit, for the purpose of profit [SIC], avoid real competition, fair competition and violate the equality of candidates, economic operators, in the procedures required by law in a public procurement, taking measures with the intention of discriminating or favoring specific commercial entities, when the procurement is within the value of the low-value procurement limit according to the provisions of the legislation in the field, or when for the same reasons it has been decided or influenced to decide the winner of the process an undeserving entity, when the relevant administrative measures have previously been taken, is punishable by imprisonment from one to five years," the current proposal states.
The way this article is worded is clearly legal nonsense because, if an official has benefited from a violation of equality in tenders or auctions, he is punished for corruption, while, in the absence of confirmation by prosecutors of the purpose of the benefit, the official can commit as many violations as he wants without worrying about being punished, as long as he manages to hide the potential benefits.
The new Criminal Code has so far been criticized as “arbitrary,” “inquisitorial,” and “not in line with international standards” in that it limits the number of criminal offenses that citizens can commit, according to the code, not through action, but through speech or writing. The code has also been criticized as vague, a step backward in several directions, or one that will cause unnecessary confusion or even jeopardize the overall functioning of the country’s criminal justice system.
Some have also questioned the need for drafting a new Code, in a country where there has been no recent regime change and in which the current code, initially adopted in 1995, has been elaborated for three decades by the justice system through case law, unifying decisions of the Supreme Court or interpretations of the Constitutional Court or even by the parliament itself, removing many negative articles, rewriting or reinterpreting other articles or adding articles, not always in a very reasonable way, but in most cases, through a detailed discussion process for each article and each word.
The work of three decades will likely have to start all over again, as the justice system will have to consider completely different linguistic formulations, expressed in a language that, according to Professor Artan Fuga, “can be interpreted like an accordion, like a rubber band.”
In addition, the existence of articles that clearly conflict with some of the most debated issues in the European Court of Human Rights, such as freedom of expression or the inviolability of the dignity of state authorities such as the president of the republic, raises serious questions about the level of professionalism of those whom the government refers to as a "group of experts", none of whom has come forward to date to defend what should normally be the pride of every lawyer's career.
With power for current affairs
One of the fundamental principles of criminal law is that, if a citizen who has committed an offense is faced with a change in legislation that provides for the offense committed by him before the final judgment, his interest prevails. This means that, in cases where the revised criminal offense carries a higher penalty than was provided for at the time the offense was committed, the offender is tried under the old law. Whereas, in case the new law favors him compared to the previous one, he enjoys the right to be tried under the new law. This means that, all officials who are currently facing criminal charges or are under investigation for criminal offenses will be able to choose the option most advantageous to them, both in terms of the essence and the measure of the punishment. For example, the criminal offense of passive corruption is provided for in the proposed draft code to be punished with 3 to 8 years of imprisonment. But for all possible violations committed before the entry into force of this code, they will be able to choose to be tried under the current code, which provides for sentences of 2 to 8 years. Meanwhile, officials accused of violating equality in tenders will likely seek to be tried or retried under the new criminal code, benefiting in practice from a form of undeclared amnesty.
The principle of using the law most favorable to the subject is expressly clarified in the draft criminal code presented in Article 9, which states: “A new law that does not punish a criminal offense has retroactive effect. The initiated criminal proceedings shall cease, while in the event that the person has been convicted, the execution of the sentence may not begin and, if it has begun, shall cease.” And also, in this article it is added: “When the law of the time when the criminal offense was committed and the subsequent law are different, the law whose provisions are more favorable to the person who committed the criminal offense shall be applied, except in cases where the res judicata must be avoided. Any request that refers to the different content of the criminal provisions or to the different extent and type of criminal punishment that they provide, when the right arises at the stage of serving the sentence, shall be resolved by the criminal court of the stage during the execution of the sentences.”/BIRN/
