Sequestration and Right to Effective Appeal Under the Ofl Normative Act

Lirime Cukaj, Lirime Cukaj, Iris Pekmezi and Elsa Miha
University of Tirana

Abstract

Albania, in the framework of reforms, to strengthen the rule of law and to fight not only organized crime, terrorist acts, but also particularly serious crimes, adopted the normative act, with the force of law, with no. 1, of 2020, of the Council of Ministers "On preventive measures in the framework of strengthening the fight against terrorism, organized crime, serious crimes and consolidation of public order and secu/rity", also called the OFL law. The purpose of this law was to sequester and confiscate the assets of persons suspected of having committed particularly serious crimes. This law, although considered as a continuation of reforms in the fight against serious crimes, had overlaps with existing laws, such as the Anti-Mafia law, since both laws aimed at taking measures of a pecuniary character, the seizure and confiscation of assets that were presumed to be the product of serious crimes such as organized crime, terrorist acts, trafficking, but not only. The OFL normative act also acted against particularly serious crimes, such as murder, etc., which do not necessarily produce assets. But quite unlike the Anti-Mafia law, the OFL law had as its characteristic, the temporality of its action, the need of urgency in its adoption. Since this law was temporary, overlapping with a partially existing law, the request for its constitutionality was raised. But this normative act with the force of law passed the test of un-constitutionality, since by decision no. 4 of 2022 of the Constitutional Court, it was affirmed as a constitutional act. Regardless of the constitutionality of this normative act, the minority opinion in this decision seems more accurate and argumentative, considering the act itself unconstitutional. One of the constitutional rights that this act infringes is also the right to an effective appeal, the principle of equality of parties and contradictory. The sequestration of property, according to this act, is placed in the counseling room without the presence of the party to whom this measure is assigned. Formally, the OFL normative act provides the right for appeal against this sequestration measure. But even though it is foreseen, this means of appeal remains formal, as the court of appeal does not have the opportunity to review the case and does not give you the opportunity to provide evidence, because there is no judicial review. Under these conditions, the sequestration measure is destined to remain in force until the request for confiscation is reviewed. Under these conditions, the right of ownership, provided for in Articles 41 and 42 , is violated without due legal process, as the property rights, disposition and enjoyment are limited, preventing even the rental/use of this property, sequestered. These elements will be part of this article, which will be analyzed in more detail in the article. Keywords: OFL, sequestrations, effective appeal, property right, right to due process.

Presentation