A draft proposal that was supposed to modernize the Albanian Criminal Code is being criticized as a threat to fundamental rights.
The government calls it a necessary reform, but many public actors, including the opposition, the judiciary, lawyers, and civil society organizations, raise the alarm about a lack of transparency and risks, especially to freedom of expression.
Hasty process, contested content
The final draft of the new Criminal Code was presented on Friday, July 25, by the Minister of Justice, Ulsi Manja. According to him, the current Code in force no longer responds to the challenges of the time and its implementation creates difficulties for the judiciary, the prosecution and lawyers themselves.
The current code, with 335 articles was adopted in January 1995 and in 30 years it was amended 24 times by law and 10 times after decisions of the Constitutional Court. The new code provides 952 articles together with the articles of repeal and entry into force.
According to Minister Manja, the new Criminal Code aims to adapt to the legal norms of the European Union in the context of integration. To this end, he invited the opposition, the media, civil society organizations and legal experts to contribute their opinions during the public consultation phase.
But the draft was not well received. Chief Prosecutor Olsian Çela called it "building without foundation" implying here the lack of broad consultations with social and institutional needs.
According to Çela, this government step "represents nothing more than a hasty action that risks irreparably undermining the proper functioning of criminal justice."
The Chief Prosecutor has expressed concern about the wording of the articles, which, according to him, risk causing confusion among magistrates, leading to a situation where different interpretations are applied to similar cases.
In a meeting with journalists on Thursday, July 31, the Head of the Special Anti-Corruption Prosecution Office (SPAK), Altin Dumani, said that they were not included in the working group nor were they consulted on the draft.
"The moment they bring it to us, we will have an official position," said Dumani, who emphasized that he personally agreed with the position expressed by Chief Prosecutor Çela.
The Chamber of Advocates described the government's proposal as a draft "inquisitor", with a lack of transparency in preparation.
"We do not see the need for the new Code, it is not a result of the need of the justice bodies," Maksim Haxhia, head of the Chamber of Advocates, emphasized at a press conference.
Meanwhile, the Democratic Party called the process secret and the draft the result of a unilateral political will.
The code can punish satire
The government has proposed toughening penalties for "desecrating the Republic and its symbols" using a rewording that could be misused to limit and punish mockery or even public satire.
Unlike the current code – “Article 268” – which only sanctions the damage to the flag or emblem in state institutions with a fine or imprisonment of up to three months, the new draft law – “Article 236” – expands the concept of desecration to include the President, the Parliament, the Government, the courts, the armed forces and the martyrs of the homeland.
Insulting, disparaging or mocking these institutions is punishable by imprisonment of up to three years, while legal entities may also be subject to a ban on their activities for up to five years.
The new provision, included in the chapter on offenses against the constitutional order, considers "desecration" any act that is seen as a violation or humiliation of the honorable values of the aforementioned institutions.
The terms used are broad and include contempt, mockery or contempt, raising concerns about the possibility of the law being used to target critics, media outlets and journalists, as this article could also punish satire.
This amendment places the flag and institutional figures on the same level of legal protection, with higher penalties than the current ones.
Impact on freedom of media and expression
The new Criminal Code takes steps backwards in relation to international standards on freedom of expression, especially in the context of EU directives and the practice of the European Court of Human Rights (ECHR), which have repeatedly recommended the decriminalization of defamation as a condition for preserving media freedom and functional democracy.
In the current code, defamation is treated in “Article 120” and articles “240”; “241” as defamation due to duty or the “President of the Republic”. In them, the intentional dissemination of statements or information that violate the honor or dignity of a person is punished with a fine of 50,000-500,000 lekë and if repeated and addressed to several people in a group, it goes up to 3,000,000 lekë.
In the new code, "Article 865" once again treats defamation as a criminal offense with disproportionately higher penalties: a fine of 500,000-1,500,000 lek, up to the obligation to publicly apologize.
This article penalizes those who express themselves through the media or social networks more severely, hitting journalists and critical citizens. Furthermore, when “defamation” is directed at public officials, the penalties are doubled, giving them special protection in the face of public criticism — contrary to the principles of a functioning democracy.
But in addition to this article, "Article 536", which punishes with a fine or imprisonment of up to 3 years for comments about judges and cases under investigation, is considered an open threat to public transparency.
The Center for Science and Innovation for Development (SciDev), SafeJournalists, and the Association of Journalists (AGSH) have requested the review of these articles, which they consider threatening to freedom of expression as they penalize journalists and active citizens.
For SciDev director Blerjana Bino, the reformulations on defamation not only fail to meet repeated recommendations from internationals, media organizations, and civil society, but also increase criminal sanctions with a deterrent effect on journalists and activists.
“The reformulation of defamation and the impact on the independence of the court are concerning for freedom of expression,” Isa Myzyraj, head of AGSH, told Citizens.al, according to which the article prohibiting judicial comments should be deleted entirely.
"Also, Article 536, which penalizes interference with the independence of the court, poses a considerable risk to journalists reporting on judicial proceedings, by not providing for exceptions or clear protective provisions for journalistic activity," Bino told Citizens.
The draft for the new Criminal Code appears not to have undergone a broad social and professional consultation process. The lack of contextual analysis and transparency risks producing long-term consequences for fundamental rights.
Instead of a comprehensive reform, we currently seem to have a document that incites distrust and alarm from many actors.
In-depth review, with broad participation, seems necessary to avoid legal and political failures.
He completed master's studies in Investigative Journalism at the Department of Journalism at the University of Tirana. She has been working as a journalist for five years, where she previously covered issues of politics and parliamentary activity, in print and online media. She is currently a journalist at Citizens.al, where she covers various social issues related to the transparency of institutions. At Citizens.al, she leads the podcast "The Unheard" and is engaged as a manager of projects related to the support of investigative journalism.
