These courts along with the Special Prosecution Office (Prokuroria e Posaçme – PP), which is independent from the rest of the prosecution services, and the subordinated National Bureau of Investigation (Byroja Kombëtare e Hetimit – BKH) are a part of the Special Anti-Corruption and Organised Crime Structure (Struktura e Posaçme Anti-Korrupsion – SPAK) established as a result of a complex 2016 constitutional reform.
The Albanian courts against corruption are structured in two tiers, a first and an appellate instance with nationwide jurisdiction. The SPAK courts have competence to adjudicate corruption, organised crime, and charges against the highest-level officials, including the president, prime minister, judges of the Constitutional Court and High Court, prosecutor general, except for the low-level cases that were excluded from their competence in 2021 and are now adjudicated by ordinary courts, in particular:
- active and passive bribery of public officials, manipulation of the persons fulfilling public functions in the event that the damage caused by such crimes exceeds ALL 50,000 (around USD 500);
- infringement of public procurement procedures if the damage inflicted by such crime exceeds ALL 800,000 (around USD 7,500).
The law requires a minimum number of 16 SPAK judges in first instance and 11 in the appellate instance. There are certain requirements with regard to experience and seniority of the judges who apply to open positions: for the SPAK court of first instance, seven years of experience in office is required, five of which must have been in the field of criminal justice; for the appellate instance, ten years in office are required, eight of which must have been in the field of criminal justice. Additionally, the candidates, their spouses, children over 18 years old, and any person related by blood or marriage who lives for more than 120 days a year in the same residence must undergo a personal and assets check and consent to periodic monitoring of their financial accounts.
Albania has also adopted measures to reduce the risk of involvement of the SPAK personnel in corruption: to this end, a mechanism to monitor the telephone calls, text messages, and email communications of the judges was established under the Constitution and Law of 6 October 2016 No. 95/2016 “On the Organisation and Functioning of Institutions for Combating Corruption and Organised Crime”. In particular, the Law stipulates that each SPAK judge is provided with a mobile phone and an email address that they must use for all electronic communications. A BKH officer is authorised to monitor, if necessary, telephone calls and correspondence of judges provided that they give their consent upon assuming office; in the event that the investigator has a reasonable suspicion that a crime has been or can be committed, the access to the phone and email of the judge can be gained without any previous consent of the latter, but with judicial authorisation. Furthermore, another BKH officer responsible for the monthly checks of the financial accounts can access the declarations on assets of the judges and their family members and analyse relevant information. These investigators are under the direct control of a PP prosecutor, who is specifically assigned by lot to this task on a monthly rotation, and inform him about the information that raises reasonable suspicions about the involvement of judges in corruption or other unlawful activities; the PP prosecutors, on their side, investigate the relevant facts.
In spite of the fact that the existing domestic legislation defines a general procedure for monitoring phone calls and correspondence of the judges, the specific procedures to be used in the course of the monitoring have not been defined yet; as a result, the mechanism that exists de jure is not de facto operational. Furthermore, since the provisions on the possibility to listen to telephone conversations and read the correspondence of the personnel of the SPAK courts were incorporated in the Constitution, they have been seriously criticised by experts and other stakeholders due to the fact that they can potentially violate the judges’ right to privacy and independence.
As for the effectiveness of the Albanian courts against corruption, the authors of the report stress that they have been operational only since 2019; therefore it is too early to make substantial assessments about their performance. However, the U4 experts believe it is worth mentioning that the SPAK courts processed 20 first-instance corruption cases in 2020, involving 29 defendants. They have seized assets of two former Constitutional Court judges and a former High Court judge, as well as a former prosecutor general who was convicted and sentenced to a two-year prison term (though his current whereabouts are unknown).
Additionally, the authors of the report highlighted a number of problems that the Albanian authorities have already encountered and that can negatively affect further functioning of the courts against corruption:
- controversy about the SPAK jurisdiction in general and that of the courts against corruption in particular: according to the initial draft of the constitutional reform, the provisions on the establishment of the structure provided for a limitation of amendments to its functioning also with respect to the activities of the courts against corruption. However, in 2020 and 2021, the legal acts providing for a change in the scope of jurisdiction of the courts against corruption were adopted: electoral corruption was added to its remit, whereas low-level corruption cases were eliminated from its remit. Given that these amendments were nor reflected in the Constitution, some experts reasonably doubt they are lawful;
- staff shortages which is a result of rather severe requirements applied to the candidates, including the need to undergo the personal and assets checks and give consent to the monitoring of financial accounts, business telephone conversations and correspondence.
As of now, 27 countries have dedicated courts or units in supreme courts specialising in corruption cases (in comparison to 2016 there were 20 such countries), including Sri Lanka, Tanzania, Thailand and Ukraine.
In establishing such courts, countries normally have the following objectives:
- ensure that corruption cases are adjudicated by the judges who understand the specifics of corruption interactions, undue methods employed by unscrupulous officials, ways of receiving/giving bribes etc. rather than by “generalists” who understand the offences they adjudicate in a variety of areas only from the point of view of statutory law;
- reduce the terms for hearing corruption cases of a particular public interest thanks to the fact that judges do not have to dedicate their time to a great number of other cases concerning offences in different areas as is the case in ordinary courts and thereby improving the quality of analysis of cases conducted by the judges of the specialised courts.
It should be highlighted that the establishment and functioning of anti-corruption courts are also hampered by a number of difficulties, including:
- additional corruption risks: the concentration of discretionary power to adjudicate corruption cases in such courts can create more favourable environment for bribing judges in exchange for less severe penalties or acquittal if compared to the ordinary courts, thereby discouraging the efforts of the State to enhance the effectiveness of liability for corruption;
- shortage of the judges corresponding to all necessary requirements (as is the case in Albania);
- correlation between the effectiveness of anti-corruption courts and that of investigative and prosecutorial authorities. The probability that a corrupt official will be held liable depends directly on the exhaustiveness and quality of evidence gathered in the course of the investigation. However, if prosecutors and investigators are overloaded with a great number of cases, including those irrelevant to corruption, they may not have enough time and energy to gather sufficient evidence. As a result, the term for transferring the case to the court can be considerably delayed with corrupt officials never being punished due to the lack of necessary evidence of their guilt.
However, some countries try to solve the abovementioned problems: Albania for instance has developed a mechanism for monitoring telephone conversations, text messages and email of judges with a view to reduce the risk of their involvement in corrupt practices; the judges of anti-corruption courts in Tanzania attend special training before assuming the office; Ukraine and Albania have established special prosecutorial bodies (divisions) that investigate exclusively corruption cases, which allows them to dedicate more attention to gathering necessary evidence and increases the probability that the responsible officials are finally held liable.