With their letter of February 5, 2020, a group of civil society organizations addressed the Speaker of the Assembly to convey their preliminary reactions regarding the normative act with the power of a law no. 1, dated, 31.01.2020 “On preventive measures in the context of strengthening the fight agianst terror, organized crime, serious crimes, and the consolidation of public order and safety” (of the Council of Ministers). In the letter to the Assembly, we requested that within a reasonable deadline, a special hearing session be held with representatives of domestic civil society organizations, because the entire process for drafting this act had been developed by the Council of Ministers in total absence of transparency and public consultation. This hearing session was not conducted. The review of this normative act by the two parliamentary committees (Committee of Laws and the Committee for Security Affairs) was also conducted in the absence of public consultations.

Civil society organizations, in principle, support every initiative that seeks to fight terrorism, organized crime, serious crimes, and consolidate public safety in our country. Our support for the fight against these phenomena has been reflected also through the proactive contribution that we have provided in the context of reforming the justice system. Justice reform was accompanied by inclusive consultations, with domestic and international actors, including civil society organizations.

On the other hand, civil society organizations request the respect for principles of the rule of law and the fundamental rights and freedoms of citizens, in every legal initiative proposed for approval by the Assembly.

We notice with concern that normative act no. 1, dated 31.01.2020, violates important constitutional principles such as the principle of the separation and balance of powers, the principle of the independence of the prosecution office, as well as fundamental human rights and freedoms. More concretely:

1. The normative act may not regulate areas that are under the exclusive competence of the Assembly and require approval by a qualified majority

The Constitutional Court, in its jurisprudence, referring to article 7 of the Constitution, which envisages the principle of the separation of powers, has stressed that this principle, in a democracy, as a form of government, aims mainly to avoid the threat of the concentration of power in the hands of one body or certain persons, which practically bears with it the risk of its abuse. In essence, the basis of this principle is that the three central powers (legislative, executive, and judiciary) should be exercised not only in an independent manner, but also in a balanced manner. This is achieved through constitutional solutions that guarantee mutual checks and sufficient balance between powers, without violating and without interfering with the rights of one-another.[1] The purpose of such a constitutional concept is ensures the prevention of any branch of government to exercise such unlimited power.

Among the three branches of government, the Assembly, as the highest representative body is without a doubt the central and most important body of central government. In the activity related to the functioning of its lawmaking power (approval of laws and completion of the constitutional and legal framework necessary for the democratic functioning of the state and social life); with its elective function (election of some of the state’s highest officials) and the function of forming political will (the confrontation of the political wills of different parliamentary forces), the Assembly should be guided by the main principles of the rule of law, one of which is the indispensability of the issuance of juridical acts according to constitutional and legal procedures. Respect for these procedures is a precondition for the legitimacy of these acts.[2]

We notice that the contents of this normative act includes provisions that sanction relations with the prosecution office and the courts, envisage special procedures and set deadlines for justice bodies (articles 10, 12, 18, 19, 22, 23, etc.), which are sanctioned in legislation in force, which has been approved by a qualified majority. In particular, the normative act expands the material competence of the Special Prosecution Office and Court against Corruption and Organized Crime, in violation of constitutional provisions.

Respect for the hierarchy of normative acts is an obligation deriving from the principle of the rule of law and coherence in the legal system.[3] The pyramid of normative acts, sanctioned in article 116 of the Constitution, establishes relations between juridical norms, which are based on the rapport of their subordination/superiority. This pyramid of normative acts has at its helm the Constitution, which is the source for the other juridical acts.[4]

With the normative act, the Special Prosecution Office and Court are given the attribute to precisely request and decide regarding preventive measures of a personal, wealth, and economic character. These measures are issued not only on subjects who are convicted or under investigation for organized crime, but also those for serious crimes.[5] These competences, envisaged in a normative act with the power of a law, surpass those envisaged in article 148/dh and 136, paragraph 2 of the Constitution.[6] Expanding the material competence of the Special Prosecution Office and Court against Corruption may not be done by normative act with the power of a law, nor by a law approved by a qualified majority as that would require amendments to the Constitution of the country.

The provisions of the normative act that regulate the deadlines and procedures that the prosecution office and the court should pursue, based on the request of the Operation Force of Law, in our assessment, fall under the provision of article 81, paragraph 2, letters “a” and “d” of the Constitution, which requires the approval of the draft law by a qualified majority (of 3/5ths). Based on the jurisprudence of the Constitutional Court, such regulations may not be in the field of regulation included under a normative act with the power of a law, approved by the Council of Ministers. The Constitutional Court has judged in its jurisprudence that an exception of the general rule of decision making by a simple majority by the Assembly is the entirety of laws, for which the constitutional norms, expressly envisage a qualified majority for approval. Concretely, the drafters of the Constitution, ranked this entirety of laws as an exhaustive list, in article 81, paragraph 2, which includes in letter “a” the laws on the organization and functioning of constitutional institutions and in letter “d” the Codes.[7] The Constitutional Court has considered that the parliamentary procedure for the review and approval of qualified majority laws follows the flow of normal lawmaking procedure, established in the Parliament’s Rules of Procedure, which includes the proposal of laws, dissemination of draft laws, report by the relevant committee and opinions of other committees, the proposal of amendments, withdrawal of the initiative, review of the draft law in a plenary session, including discussion in principle on the draft law and the review article by article, order of vote of amendments and the voting as a whole of the draft law (part II, chapter I and II, articles 68 -77). The Constitutional Court has spoken continuously that ordinary laws may not address issues that are envisaged to be addressed by codes or material laws. If the constitution-maker had wished for equal treatment of them, article 81, paragraph 2 of the Constitution would not exist. On the contrary, the drafters of the Constitution, although in form, article 81, paragraph 2, letter “a,” of the Constitution, is a norm of a procedural nature, included the constitutional provision in question because, in essence, it is a provision that seeks to protect institutions envisaged by the Constitution, due to the importance of the areas that the qualified laws regulate, in order to make them as sustainable as possible, to seek broader consensus from political forces represented in the Assembly and to avoid the possibility for the political force that has the majority to violate fundamental principles for the functioning of a democratic society.[8] Moreover, respect for the constitutional criterion of a “qualified majority” also serves the principle of juridical certainty, a principle whose indispensable requirement is the fact that laws in general should guarantee clarity, predictability, and understandability for the individual.[9]

Clearly, in its jurisprudence, when it reviewed normative acts with the power of law, approved by the Assembly but regulating issues that fall under the regulation of qualified majority laws, the Constitutional Court has said, “the transfer of the legislative competence to the Council of Ministers to, exclusively, take temporary measures in case of need and urgency, is subjected before all, to the constitutional limitations that consist in procedural and material criteria, to be defined by the nature of the concrete relationship that requires regulation. In this sense, the Assembly may not delegate its lawmaking power, but has the constitutional obligation to fulfill the procedural and material requirements for the approval of qualified majority laws according to article 81/2 and 83 of the Constitution, vis-à-vis articles 1, 2, 4, 7 and 116 of the Constitution; even less can the Council of Ministers interfere with normative acts with the power of a law in those areas, whose regulation, expressis verbis, represents an exclusive competence of the Assembly.[10]”

2. The normative act violates the independence of the prosecution office

Në nenin 148, pika 2 të Kushtetutës parashikohet pavarësia e organit të prokurorisë. Sipas kësaj dispozite, “Prokuroria është organ i pavarur që garanton mbarëvajtjen, kontrollin e veprimeve të saj dhe respekton pavarësinë e brendshme të prokurorëve për hetimin dhe ndjekjen penale, sipas ligjit”. Në pikën 3 të po kësaj dispozite parashikohet se “Prokuroria është organizuar dhe funksionon pranë sistemit gjyqësor”.

Although coordination and cooperation between institutions is necessary, in our opinion, article 8 of the normative act that assigns the General Prosecutor and the Head of the Special Prosecution Office as part of the National Committee for the Prevention and Fight against Organized Crime is a violation of the independence of the prosecution office. We say that, first, because this is an organized structure headed by the Minister of Interior (part of the executive). Also, this structure includes senior functionaries of the executive, such as the Minister of Justice, Minister of Finance and Economy, appointed and dismissed directly by the PM, as well as the General Director of State Police. Article 8 of the normative act violates article 149/ç of the Constitution, which envisages the cases of incompatibility with the duty of prosecutors (including the General Prosecutor and head of the Special Prosecution Office). This duty is not compatible with any other state or political activity, as well as professional activities conducted against payment, except for teaching or academic and scientific activity. The membership of the General Prosecutor and the Head of the Special Prosecution Office in this Coordinating Committee creates premises for improper influence by the executive on the exercise of their independent profession or even premises for hidden pressure. This is very harmful if we consider that the Special Prosecution Office has in its material competences the investigation and prosecution of high-level officials, including the representatives of the executive in this Coordinating Committee.

Any new legal regulation deemed by the Constitutional Court to not be sufficient unless it guarantees the avoidance of influences that the executive power may exercise on issues related to the issuance of justice by the court. […] The definition of competences beyond constitutional standards would create unbalanced rapport between functions and, as a result, between the powers in which each of them belongs.”[11]

the General Prosecutor and head of the Special Prosecution Office are Independent Constitutional Bodies. The General Prosecutor reports to the Assembly while the head of the Special Prosecution Office reports to the High Prosecutorial Council. In this context, paragraph 4 of article 8 of the normative act also raises serious suspicions of the violation of the constitution because it tasks the Committee to report at least once per quarter and present a periodical report to the Council of Ministers.

Article 6, paragraph 4 of the normative act envisages that the “Operation Forice of Law” (OFL) is a special structure in the General Directory of State Police (part of the executive) and is responsible for the prevention, discovery, documentation, and fight against organized crime and serious crimes. The OFL is the key body that identifies, verifies subjects subject to limitations envisaged in the normative act and starts the procedure to seek the imposition of these limitations, of a natural and wealth nature. State Police, as is known, operates according to law 108/2014 “On state police” and, according to this law, the mission of the state police is to preserve public order and safety, protect senior state personalities, and sites of special significance, guarantee law enforcement, in accordance with the Constitution and international acts, respecting human rights and freedoms (article 2, law no. 108/2014). Against this provision, the competences awarded to the OFL go beyond the mission of the state police and, in some cases, represent interference with the activity of the prosecution office and the court, thus violating the competences awarded to the judiciary.

Concretely, unlike the anti-mafia law no. 10192, dated 03.10.2009,[12] whereby the prosecutor is the key body for the verification of individuals on whom preventive measures are undertaken for the limitation of assets of persons, the normative act indicates that the key body is the OFL, which identifies and verifies subjects, on whom personal or wealth (sequestration) limitation measures are imposed. By granting the OFL absolute discretion to identify subjects, as a body under the umbrella of the executive, the normative act creates premises for subjectivity and bias in how it will be implemented. The bodies of the judiciary are the only ones to offer guarantees for legal and functional independence.

We also find that article 10 of the normative act envisages that on subjects for which there are reasonable suspicions based on elements of fact for participation in terrorist activity or being part of terrorist organizations, an armed gang or criminal organization and the commission of serious crimes, upon OFL request, the Prosecutor asks the competent court to impose limitations. This provision does not envisage any competence of the prosecutor to conduct further verifications regarding this OFL request (unlike the anti-mafia law). Referring to article 10 of the normative act, the prosecutor conveys to the court the request, which also does not have any competence to conduct verifications, unlike the anti-mafia law, but based on the argued request of the OLF (conveyed by the prosecutor) may impose personal confinement measures. With some non-essential changes, article 18 of the normative act does not envisage room for verification conducted upon the initiative of the prosecution office or court, for the imposition of preventive measures related to wealth (sequestration). The only possibility for the prosecutor on these requests is to seek additional information from the state police, but not carry out, upon his own initiative, verifications regarding data made available by these structures.

Article 11 of the normative act gives the OFL the attributes to decide on its own initiative, preventive personal measures in cases of emergency and, until their evaluation by the prosecution office or court, the normative act envisages a maximal deadline of up to 5 days. Thus, the OFL, a structure of the executive,[13] assumes attributes of a judicial body and limits in some forms the freedom and movement of an individual. The same judicial attributes are granted to the OFL for the sequestration of assets, according to article 19 of the normative act. Until the evaluation of sequestration by the prosecutor or the court, the normative act envisages a maximal deadline of up to 30 dyas. The OFL is not a structure that offers functional and structural guarantees to be independent in the sense of the right that every person should enjoy for due legal process. The Constitutional Court has judged that other bodies, which are not courts, but exercise functions that are decisive in the sphere of fundamental rights and freedoms of the individual, should be independent and impartial in their activity. As a result, every individual has a right to be investigated by an independent and impartial body, set by law, so that it (the body) is able to act without influence by anyone and for any reason.[14]

The normative act assigns the control of the lawfulness of acts carried by OFL, in article 35, to hierarchical structures that are again under the executive, such as the Internal Control and Complaints Service at the Interior Ministry. In fact, these acts may affect the rights and freedoms of citizens (subjects subjected to the limitations of the normative act) and, as a result, their lawfulness should be assessed by independent judicial bodies, in the context of the procedure pursued for the imposition of preventive measures.

3. The normative act violates fundamental rights and freesoms sanctioned in the Constitution and the European Convention of Human Rights.

Article 17 of the Constitution sets some conditions to be fulfilled, in a cumulative manner, in the case of limitation of human rights:

• limitation should only be done by law;
• for a public interest or the protection of the rights of others;
• limitation should be proportionate to the situation that dictated it (principle of proportionality);
• should not violate the essence of the right;
• and should not surpass limitations envisaged by the ECHR.

In principle, limitations on human freeomds and rights, envisaged in the normative act with the power of a law of the Council of Ministers do not fulfill the requirements of article 17 of the Constitution for these reasons:

1. First, the normative act does not respect the element of indispensability, part of the principle of proportionality.

Constitutional control by the Constitutional Court has elaborated in the principle of proportionality whether the measure was appropriate for achieving the desired objective, whether the measure was indispensable, in the sense that the state did not have at its disposal any other way, less confining on individual freedoms. The last step consists in the verification of whether the measure is non-proportional to the limitation, or what is called proportionality in the narrow sense of the word (stricto sensu).[15] Thus, every limitation should surpass the three tests of proportionality. This principle has been processed by the ECtHR. One undertaken action shall be legitimate only if it cannot be achieved through other ways (see decisions 20/2006; 10/2008 of the CC).

Against these requirements dictated by the principle of proportionality, we notice that our state has legislation in force that envisages limiting measures on human rights and freedoms also in the context of the prevention of criminal offenses and particularly organized crime and terrorism. More concretely:

• Law no. 10192, dated 03.12.2009 “On the prevention and fight against organized crime and trafficking through preventive measures on assets,” otherwise known as the anti-mafia law.[16]
• Criminal Code and Criminal Procedure Code, whose provisions, implemented in a harmonized manner by independent prosecution bodies, also guarantee the prevention of the commission of criminal offenses.[17] Article 5, paragraph 1, of the Criminal Procedure Code, envisages that the person’s liberty may be limited by security measures only in the cases and manners established by law.
• Law no. 9917, dated 19.5.2008 “On the prevention of money laundering and terrorism financing,” which seeks to prevent the laundering of money and the proceeds deriving from criminal offenses, as well as the prevention of terrorism financing.[18]

1. Secondly, limitations on human rights and freedoms envisaged in the normative act create serious suspicions that they surpass limitations envisaged in the ECHR and, in particular, consolidated in the jurisprudence of the Strasbourg Court (illustrated below). More concretely:

1. The right to property, guaranteed in article 41 of the Constitution and article 1, protocol no. 1, of the European Convention for the Protection of Fundamental Human Rights and Freedoms (ECHR).

The normative act envisages in chapter III, limitation measures on assets, of a temporary nature (sequestration) or permanent (confiscation). These measures extend their reach not only on the subjects mentioned in article 5 of the normative act, but also on their relatives and physical and legal persons related to them, according to specifications in article 16, letter “c,” subsections “i” and “ii” of the normative act. In some cases, when states adhering to the ECHR applied limitation measures on assets not in the context of a criminal process but in the preventive aspect, the ECtHR noted that interference with the right to property violates the principle of proportionality, when the fair balance between an individual’s right and public interest is not respected – when excessive burden is imposed on a property owner.

In the case tried by ECtHR, Paulet vs. the United Kingdom,[19] the petitioner complained that the confiscation measure (after he was convicted for benefiting employment using a fake passport) was disproportionate, because it led to the confiscation of all of his savings throughout about four years of work, without any distinction. According to the ECtHR, United Kingdom courts only considered that the confiscation order had been issued in public interest, but they did not go further to realize other aspects of the proportionality test (they did not balance the interference for public interest with the right to the peaceful enjoyment of the assets of an individual, as is known by the ECHR). The lack of such proportionality is noticed also in some of the provisions of the normative act. Concretely, article 18 and onward of the normative act do not clearly and accurately establish to what extent these limitations on the right to property shall affect the wealth of subjects on whom the normative act extends its effects. Also, this act limits disproportionately the right to property of third persons who may have benefited in good faith, according to provisions of the Civil Code, the right to property on certain assets, in spitte of whether they are the proceeds of organized crime. This also limits the principle of juridical certainty. Further on, the same article 18 of the normative act envisages that relevant subjects are asked that within 48 hours, they submit data on the legitimate sources of their assets, the cause for possession and the measure of the right, explanation of how they made it, the annual legitimate incomes (without specifying for what period, e.g. the last year, or a longer period), etc. This deadline is unreasonable and violates the principle of proportionality because it may make it objectively impossible for the subjects to declare these elements. In itself, this provision also violates the principle of equality before the law because if we refer to the law on the transitional evaluation of judges and prosecutors, the time available to them is one month.

2. The right to freedom and security, guaranteed in article 27 of the Constitution and article 5 of the ECHR.

The normative act does not meet the minimal requirements and guarantees of article 5 of the ECHR, nor those envisaged in article 27 of the Constitution and article 228 of the Criminal Procedure Code.[20]

In its jurisprudence, the Strasbourg Court considered that the difference between lifting liberty and limiting liberty has to do with the degree and intensity not the nature of the measure or its essence.[21] The ECtHR has reiterated[22] that arrest at home is considered cause because of its degree and intensity a measure of lifting liberty, in the sense of article 5 of the Convention (ECHR). The normative act with the power of a law, article 10, paragraph 1, envisages as a preventive personal measure, among others, the measure to limit the perimeter of movement. The act is unclear as to what extent or to what degree this perimeter shall be limited. In this context, one cannot exclude the possibility that the individual’s liberty may be limited within the perimeter of his/her own home. Thus, the limitation of the perimeter of movement may place the person under the conditions of removal of liberty, which requires that the strict requirements and guarantees envisaged in article 5 of the ECHR be applied on him/her.

3. The right to movement guaranteed by article 2 of protocol 4 of the ECHR.

Referring to the jurisprudence of the Strasbourg Court,[23] any measure that limits the right to movement should be in accordance with the law, should fulfill a legitimate purpose in the sense of paragraph three of article 2 of Protocol no. 4 of the ECHR.[24] According to the Strasbourg Court, a request deriving from the phrase “in accordance with the law” is predictability. Thus, a norm may not be considered “law” unless it has been formulated with sufficient precision to enable citizens the opportunity to regulate their conduct. They should be able – if necessary, through proper counseling – to predict, to a reasonable extent, the consequences that a certain act may lead to in certain circumstances.[25] These elements are analyzed fully in the decision of the ECtHR Grand Chamber, De Tommaso vs. Italy[26] (February 23, 2017), whereby ECtHR marks a turning point, regarding the criteria that a country should fulfill in order to impose preventive measures on certain subjects, with criminal precedents or under investigation. In the decision, the Grand Chamber found unanimously that Italy had violated article 2, protocol no. 4, against a subject placed under a special supervision regime, whereby his freedom of movement was limited among others. According to the Grand Chamber of the ECtHR, the legal framework for imposing such measures should be accessible by individuals and predictable in terms of its effects. In the case De Thomaso, Italy failed to envisage with sufficient precision the criteria on which these measures were imposed, as the law does not clearly identify the “factual evidence” or other forms of conduct taken into consideration to evaluate the dangerousness of an individual on whom the measure is imposed. In other words, the lack of clarity of the law that regulates the conditions for applying such measures and their contents do not ensure sufficient protection against arbitrary interferences with freedom of movement.

Similarly to the case of De Tommaso vs. Italy, the same problems are seen in the normative act with the power of a law, which defines unclearly the “element of fact,” on which the suspicion arises to subject a person to the preventive measures of personal limitation (freedom of movement). According to article 6, paragraph 5 of the normative act, the “element of fact” is the entirety of data or knowledge secured by police in exercising its duties, pursuant to relevant legislation, and considered that may represent the fact, event, or circumstance of a fact. This definition is not only unclear regarding the subjects it will be used on, but it also leaves room for subjectivity and arbitrariness in the way in which OFL will evaluate the “element of fact.” How will it be proven whether a fact is true or not, founded, and impartial? In any judicial process, evidence is the tool envisaged by law to state the factual data and establish the truthfulness of fact that represent the object of evidence. The proving power (nervus probationis) of the element of evidence is the ability of a piece of evidence to create the conviction in the court about the truthfulness or untruthfulness of the fact. No provision of the normative act requires that this element of fact is based on evidence envisaged in our procedural legislation. Moreover, the normative act, just as in Italian legislation applicable in the case De Thomaso vs. Italy, does not envisage a category of behavior of subjects, which will give discretion to the country’s authorities to request and impose personal limitation measures.

4. Right to due legal process, guaranteed in article 42 of the Constitution and article 6 of the ECHR. The right to due legal process is a right of a procedural nature, which guarantees the person to calmly enjoy and effectively exercise his rights and freedoms. Some of the provisions of the normative act violate the guarantees required for due legal process such as the right to defend oneself, the right to be heard, the right to contradictority, the right to have available a reasonable deadline, etc. Concretely, article 10, which envisages the issuance of preventive personal measures, article 18, which envisages the imposition of asset sequestration, and article 28, which envisages the imposition of preventive economic measures, the subject on whom these measures are imposed, is not a subject of judicial process, does not have a right to defend himself and be heard effectively. Also, paragraph 4 of article 18 envisages that, the court, in counseling chamber, expresses itself by a decision on the imposition of the sequestration measure within 15 days from the submission of the prosecutor’s request. The decision of the court is enforceable immediately. This provision imposes two limitations of important aspects of the right to due legal process. First, it violates the public character of the judicial process and, secondly, the decision is given immediate executive effect, without waiting for whether the subject will exercise the right to complaint at least at a higher judicial instance.

The violation of aspects of due legal process has led to the issuance of sanctions by the European Court of Human Rights on countries that did not respect procedural guarantees of article 6, in cases when measures of a preventive nature were imposed on citizens. In the case De Tommaso vs. Italy, the petitioner claimed that Italy had violated article 6/1 of the Convention due to the absence of a public hearing by the Court of Bari and the Appeals Court. Also, he complained that the process on him had been unfair. In its decision on De Tommaso, the Strasbourg Court considered that some of the limitations claimed by the petitioner – such as the limitation to get out at night, leave the district he lived in, etc. – are clearly included in the sphere of personal rights and therefore are of a civil nature. The court concluded that the petitioner’s complaint regarding the limitations on which he had been subjected as a result of being placed under special surveillance, were ratione materiae in accordance with the provisions of the Convention because it had to do with article 6 in its civil aspect. The court refers to relevant judicial practice regarding the absence of a public hearing on the preventive measures regarding the assets (see Bocellari and Rizza, 34-41 §§; Perre and others, 23-26; Bongiorno and others, 27 30; Leone, 26-29 §§; and Capitani and Campanella, 26 29 §§). According to the Strasbourg Court, the circumstances of the case De Tommaso dictated the need to hold a public hearing, considering that domestic courts had to evaluate aspects such as the character, conduct, and dangerousness of the petitioner, all of which were decisive in establishing preventive measures (see, mutatis mutandis, Jussila, cited above, 41). From this standpoint, the Court considered that there had been a violation of article 6, paragraph 1, of the European Convention of Human Rights.

5. Principle of the presumption of innocence, guaranteed under article 30 of the Constitution and article 6/2 of the ECHR. Article 5 of the normative act describes the subjects that will be subjected to verifications and limitations of this act. Paragraph 1 of the article excludes subjects on whom there has been an innocence verdict, but decisions may have also been to drop cases. Persons under investigation, as special subjects envisaged by paragraph 2 of article 5, are presumed innocent, until their guilt is established by final verdict. The limitations envisaged in the anti-mafia law and the Criminal Procedure Code, which contain stronger and more guaranteeing criteria in terms of respect for their rights, may be imposed on these citizens.

6. The right to respect for private and family life, guaranteed in article 8 of the ECHR. Article 33 of the normative act is disputable because, according to it, the OFL leading official, alone or in cooperation with the anti-terror unit head, if under the suspicions of terrorist activity, may be given access to police structures, to operators using the electronic and telephone networks and services of any kind, including the phone number IMEI) or localization of logging antennas of communicators, etc.

In the case Szabó and Vissy against Hungary (January 12, 2016), the European Court of Human Rights reviewed the petition of two petitioners who claimed that they had been subjected to unfair and disproportionate measures, in the form of secret surveillance for the purposes of national security. They stated that this approved legal framework was prone to abuse. The Strasbourg Court decided that there had been violations of article 8 of the Convention. The Court agreed that it was a natural consequence of the forms in which terrorism appears nowadays that governments access advanced technologies, including the massive supervision of communications, in order to obtain prior information on future incidents. However, the Court was not convinced that the legislation in question ensured sufficient protective measures to avoid abuse by domestic authorities. In particular, the scope of measures may include almost any individual in Hungary, with new technologies that enable the government to obtain information and data regarding persons who are not the subject of surveillance. Moreover, the imposition of such measures was being done entirely within the sphere of the executive and without any evaluation of whether the wiretapping of communications was absolutely necessary, without guaranteeing the possibility of the judiciary to issue any effective corrective measure.

[1] See decisions no. 24, dated 10.11.2006; no.19, dated 3.5.2007, No. 5, dated 5.2.2014 (paragraph 38), of the Constitutional Court

[2] See decision no. 29, dated 21.10.2009, of the Constitutional Court

[3] See decision no. 2, dated 3.2.2010, of the Constitutional Court

[4] See decision no. 3, dated 20.2.2006, of the Constitutional Court

[5] Serious crimes include criminal offenses that cover a much broader scope than organized crime.

[6] Article 148/dh of the Constitution, added to by law no. 76/2016, dated 22.7.2016, envisages that “The Special prosecution office carires out criminal prosecution and represents prosecution before special courts envisaged in article 135, paragraph 2, of the Constitution, and before the High Court.” Article 136, paragraph 2 of the Constitution envisages “Special courts adjudicate criminal offenses of corruption and organized crime, as well as criminal charges against the President of the Republic, Speaker of the Assembly, Prime Minister, member of the Council of Ministers, judge of the Constitutional Court, and the High Court, the Prosecutor General, the High Justice Inspector, the Mayor, member of parliament, deputy minister, member of the High Judicial Council and the High Prosecutorial Council, and heads of central or independent institutions established in the Constitution or the law, as well as accusations against former above officials.

[7] See decision no. 9, dated 23.3.2010, of the Constitutional Court

[8] See decision no. 25, dated 5.12.2008; no.1, dated 12.1.2011, of the Constitutional Court

[9] See decision no. 23, dated 8.6.2011, of the Constitutional Court

[10] See decision no. 5, dated 05.02.2014, of the Constitutional Court, paragraph no.63

[11] See decision no. 10, dated 06.03.2014, of the Constitutional Court

[12] “On the prevention and fight aginst organized crime and trafficking through preventive measures against (criminal) assets”

[13] According to the normative act (article 6, paragraph 4), the OFL is a special structure in the General Directory of the State Police, while the General Director of the State Police is the highest authority of police responding directly to the minister (i.e. directly subordinate tot he executive).

[14] Decision of the Constitutional Court, no. 43 (2015), paragraph 43.

[15] P. Craig, European Administrative Law, faqe 656, Oxford University Press 2006

[16] The purpose of this law is the prevention and fight against organized crime and trafficking through the confiscation of the assets of persons who have unjustified economic wealth, as a result of suspected criminal activity.

[17] It is the duty of the criminal legislation of the Republic of Albania to protect the independence of the state and the entirety of its territory, human dignity, man’s rights and freedoms, constitutional order, property, teh environment, coexistence and understanding of Albanians with national minorities, as well as religious coexistence from criminal offences, as well as their prevention (article 1/b of the Criminal Code).

[18] According to the law, the General Directory for the Prevention of Money Laundering, as a unit of financial intelligence, orders, when there are reasons based on facts and concrete circumstances for money laundering and terrorism financing, the blocking or temporary freeze of a financial transaction or action, for a period of no more than 72 hours. Within this deadline, if it notices elements of a criminal offense, the responsible authority shall file a criminal referral to the prosecution office, submitting a copy of the order for the temporary suspension of the transaction.

[19] Paulet v. The United Kingdom, no. 6219/08

[20] Article 228, paragraph 1 of the Criminal Procedure Code envisages that “Nobody may be subjected to personal security measures unless reasonable suspicions, based on evidence, exist on him.”

[21] See Guzzardi, §§ 92-93; Nada k. Zvicrws [Grand Chamber], no. 10593/08, § 225, ECHR 2012; Austin and others vs. United Kingdom [GC], no. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev vs. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; and Medvedyev and others vs. France [GC], no. 3394/03, § 73, ECHR 2010

[22] See N.C. vs. Italy, no. 24952/94, § 33, 11 January 2001; Nikolova vs. Bulgaria (no. 2), no. 40896/98, §§ 60 and 74, 30 September 2004; Danov vs. Bulgaria, no. 56796/00, §§ 61 and 80, 26 October 2006; Ninescu vs. Republic of Moldova, no. 47306/07, § 53, 15 July 2014

[23] See Battista vs. Italy, no. 43978/09, § 37, ECHR 2014

[24] The exercise of these rights may not be the subject of other limitations from those envisaged in the law and indispensable in a democratic society for national security or public safety, protection of public order, prevention of criminal offenses, protection of health or morals, or protection of the rights and freedoms of others.

[25] See Sunday Times vs. United Kingdom (no. 1), 26 April 1979, 49 § , Series A No. 30; Kokkinakis vs. Greece, 25 May 1993, § 40, Series A No. 260-A; Rekvényi vs. Hungary [GC], No. 25390/94, 34 §, ECHR 1999-III; and Centro Europa 7 Srl and Di Stefano

[26] Application no. 43395/09