Repetition of judicial review before the court of appeal - Problems encountered in Albanian judicial practice

Article 13 of the ECHR provides that: “Every person whose rights and freedoms recognized by this Convention have been violated, has the right to lodge an effective appeal before a national institution even when this violation has been committed by persons acting within the exercise of their official functions”. The right to effective appeal is a fundamental human right and implies the right of the individual to appeal, the existence of a certain body for reviewing the appeal, unconditional acceptance of the appeal for review, reasonable deadlines for its review, an objective review, judicial control, as a final check on the appeal.

The Court of Appeal judges as a court the fact and the law and as such it has the its own right but also at the request of the party to partially or fully repeat the judicial review.

Article 427, paragraph 4 of the Criminal Procedure Code has been amended recently by the Law 35/2017, whereby it is provided that: “When the defendant is found not guilty, the court of appeal cannot find him guilty solely on the basis of a different assessment of the evidence obtained in the first instance trial”.

Based on the grammatical and logical interpretation of this provision, it results that the criminal court of the reviewing jurisdiction cannot declare the defendant innocent by the criminal court of the original jurisdiction, on the basis of the same facts and evidence, but by assessing them differently, guaranteeing this way a provision the respect of the principle of non-compliance with the position of the defendant.

But what is put forward for discussion by the practice of the Courts is the fact that the Courts of Appeal have in some cases found the defendant guilty, on the same facts and evidence, on the basis of which he was declared innocent by the court of first instance, after the contrary assessment of the facts and evidence was made by the court of first instance, misinterpreting Article 427/4 of the Criminal Procedure Code.