On the Concept of Unlawful Influence

When prosecutors can’t find both parties to a crime, they invent a different one.

By Ylli Manjani (Tirana)

There is another abuse of criminal justice worth examining: the concept of Unlawful Influence, a criminal offence under Article 245 of the Penal Code. To understand the abuse, we first need to agree on what the concept actually means.

To exercise unlawful influence over someone, you must first hold power, authority, or leverage over that person. The authority must be strong enough to leave the other party with no real alternative. This is the classic framework for describing the hold that superiors and managers have over their subordinates — they can, after all, hire and fire. The influence must also be unlawful, meaning the person subject to it is compelled, in violation of written law, to make a decision or act in a particular way. Not every form of influence qualifies. Managers and bosses unquestionably exercise influence — that is the point of being in charge — but as long as they operate within the written rules, their influence is not unlawful.

So where does the abuse come in? In practice, our courts treat anyone’s conduct as Unlawful Influence, regardless of whether that person actually holds power or authority over another. Whenever prosecutors cannot establish the passive party in a corruption case — the public official — they simply charge the private party with exercising influence instead. To put it bluntly: when they find both the giver and the taker, they call it corruption. When they can only find one side of the transaction, they call it unlawful influence. By this logic, the offence becomes corruption with a single party. Which is absurd. Corruption either exists or it doesn’t. Unlawful influence can only be committed by someone who actually holds power over the person being influenced. A private individual with no such authority simply cannot commit this offence — they might commit blackmail, bribery, extortion, assault, or any number of other crimes, but not unlawful influence. What we have here is a misappropriation of the concept itself.

The concept has been seriously compromised by our courts — partly through a loosely drafted law subjected to haphazard amendments, and partly through the crude interpretations that have hardened into practice. That practice, it bears noting, never actually prosecutes the official who wields influence. It settles instead for going after lawyers or their clients — people with no power to influence anyone.

There are even stories circulating, somewhere in the vicinity of reasonable doubt, of judges being “intimidated” by having their phones seized — on the theory that this constituted unlawful influence being exerted on them. Which brings us to another distortion: unlawful influence, by definition, can only be reported by the person on whom it was exercised. Otherwise there is no way of knowing it happened at all. Procedurally, then, the concept has been further hollowed out — you now have suspects under investigation as influencers with no identified person who was influenced. You have defendants indicted as influencers even where they acted in strict compliance with the law. At this point, even applying the law correctly can apparently be prosecuted as a crime.

Criminal justice needs to return to first principles. The accumulated distortions have reached the point of absurdity.

About the author
Ylli Manjani is an Albanian lawyer and former Minister of Justice (2015–2017). Since his dismissal from government — after which he publicly accused the Rama administration of protecting corruption — he has returned to legal practice and become one of Albania’s most persistent critics of prosecutorial overreach and judicial dysfunction.