The First Fifteen Days

Albanian law lets a prosecutor authorize up to fifteen days of covert photography, filming or video surveillance in public, and location tracking, without prior judicial authorization or validation. Continuation beyond that requires a court. The initial decision belongs to the prosecutor.

Renada Bici, Legal Desk

The document is one page. It is dated 10 February 2025, signed by a prosecutor of the Special Prosecution, and it ends with a single word set apart in capitals: AUTORIZOJ. I authorize. Under it, three numbered paragraphs: surveillance in public places of a named judge of the Constitutional Court “and other subjects of this proceeding”, accompanied by observation, filming and photographing; a duration of fifteen days, 10 to 25 February; execution by the Special Operational Force of the Tirana police directorate, which is to keep the minutes.

No court appears anywhere on the page. None was required. That is the subject of this piece.

We are not returning to the case itself. Whether the order was wise, whether the judge was a suspect or a witness or neither, what the prosecutor feared about the reasoning of a judgment already delivered in his favour: those questions were argued in March last year and we have no new evidence to add. What the page demonstrates is not a fact about one judge but a fact about the statute. For one category of covert surveillance, Parliament decided that the decision to begin belongs to the prosecutor, that it may run for fifteen days on his signature, and that no independent officer is required to consider whether the intrusion is justified before it starts.

Two tiers, one signature
Article 221 of the Code of Criminal Procedure divides covert investigative measures into two tiers. The first, in paragraph 1, covers the interception of communications by telephone, fax, computer or any other means, the covert technical interception of conversations in private places, audio and video recording in private places, and the logging of incoming and outgoing call numbers. It is available only for intentional crimes carrying a maximum sentence of at least seven years, for any intentional offence committed by telecommunications or information technology, and for the offences listed in Article 75/a, paragraph 1, letter a.

The second tier is paragraph 2. It covers “covert photographic, film or video recording of persons in public places and the use of location tracking devices”, and it is available for any intentional offence carrying a maximum of at least three years.

Article 222 then assigns the gatekeeper. For the first tier, paragraph 1 requires the court to authorize by reasoned decision, on the prosecutor’s request, where the measure is indispensable to an ongoing investigation and there is reasonable suspicion founded on evidence. Paragraph 4 obliges the court to decide within twenty four hours and gives the prosecutor an appeal if refused. Paragraph 5 caps the measure at fifteen days and lets the court extend it, fifteen days at a time, on a reasoned request showing that the first period produced results that make continuation necessary.

For the second tier the Code needs one clause, and it gets one. Paragraph 8: in the cases provided by Article 221, paragraph 2, “the act is authorized by the prosecutor.”

The Electronic Commentary to the Code, developed under the EU funded EURALIUS project and now maintained by the School of Magistrates, reads paragraph 8 the way we do. Measures in public places, it says, may be ordered by the prosecutor “without the involvement of the court and without the need for authorization or validation”. It adds that the legislature’s will was for the court to decide in every case under paragraphs 1 to 3 of Article 222, before the act or immediately after it, and that “the only exception to this rule” is Article 221, paragraph 2.

So the exception is not our reading alone. It is the commentary’s reading too.

How far the first fifteen days reach
Three features of the text define the scope of what a prosecutor may begin alone.

The first is the threshold. Three years’ maximum is a low bar. It is met by nearly every offence in the Special Prosecution’s docket, since corruption and organized crime offences carry maxima far above it. And the Special Prosecution’s docket is not small. Article 75/a assigns to the special courts, and therefore to the Special Prosecution, two things: a list of offences, chiefly corruption and organized crime, whoever commits them; and the criminal charges against an enumerated class of officeholders, among them the President, the Speaker, the Prime Minister, ministers, deputies, mayors, judges of the Constitutional Court and the High Court, the Prosecutor General, the High Justice Inspector and members of the two councils. A lower court judge or an ordinary prosecutor is not on the status list, but comes within the same jurisdiction the moment the offence alleged against him is one on the offence list. Between the two routes, the persons whose conduct the Special Prosecution may lawfully investigate include essentially the whole governing class of the Republic.

The second is the target list. Article 221, paragraph 3, allows the measure to be ordered against the suspect, against a person believed to receive or transmit communications from the suspect, against a person who takes part in transactions with the suspect, and, in sub paragraph ç, against a “person whose observation may lead to the discovery of the location or identity of the suspect”. The fourth category is bounded by a nexus: observing the person must be capable of leading investigators to the suspect. Within that bound, the person watched need not himself be suspected of any offence. That is what the statute says, and it is enough.

The third is the precondition, which is a registered criminal proceeding. The Code does not allow surveillance without one. But the prosecutor registers proceedings himself, and Albanian practice has long permitted registration against persons unknown. The proceeding is registered by the prosecution itself. That prerequisite therefore adds no independent decision maker to the Article 221, paragraph 2, authorization chain.

Then there is time. Article 222, paragraph 5, caps a single authorization at fifteen days, and the February order ran exactly that long. Continuation requires the court, on the prosecutor’s reasoned request; the commentary is explicit that the prosecutor “must submit a reasoned request to the court” for a further fifteen days. A judge therefore enters the chain if the prosecutor wants the measure to continue. Note, though, what the extension clause asks the court to find: that “the conditions of paragraph 1” of Article 222 exist, meaning reasonable suspicion founded on evidence against the person. Those are the conditions of the judge’s tier. The text does not explain how they are to be applied when the person observed under sub paragraph ç is not himself the suspect. How that is handled in practice is a question for the Special Prosecution and the courts, and one the text does not answer.

The word that is not in the statute
There is a further question raised by the order itself, and it is a question of vocabulary that becomes a question of law.

The authorization speaks of “përgjim ambiental në vende publike”, ambient interception in public places, accompanied by observation, filming and photographing. Read Article 221, paragraph 2, again. It lists photographic, film and video recording, and location trackers. It does not expressly list the interception of spoken conversations. Conversations appear only in paragraph 1, and only in private places, where the court decides.

We do not know what the order’s authors meant by the phrase. “Përgjim ambiental” is established terminology in Albanian criminal practice; the Constitutional Court’s Decision no. 26 of 29 April 2025 records ordinary courts admitting an ambient interception and applying Article 221, paragraph 3, letter ç, to fix its permissible target. It may be that in the February order the phrase meant no more than the filming already listed. But if it contemplated capturing what the judge said to the people he met, the cited statutory basis raises a question, because Article 221, paragraph 2, does not expressly reach audio. Whether Albanian law treats such recording in public as falling within that paragraph is a matter on which the bare text is silent and on which we would want authority. Ylli Manjani, counsel in the underlying case and himself reportedly among the surveilled, took the stronger position at the time: on the legal basis cited, he wrote, such an authorization “is made by court decision and not by prosecutor’s order” (“bëhet me vendim gjykate dhe jo me urdhër të prokurorit”).

The reply that was accurate
When the president of the Constitutional Court wrote to the head of the Special Prosecution on 19 February asking whether any criminal report or investigation existed against any judge of the Court, the reply of 26 February was that no report had been filed and that no member of the Court was a “person under investigation” (“person nën hetim”). The surveillance had ended the day before.

The reply was accurate. The Code distinguishes between the subject of a proceeding, the suspect, and the person formally under investigation, and the order had named the judge as a subject of surveillance while locating the suspected offence in the conduct of unnamed others. Every word of the letter was true. No word of it addressed what had been asked. A statute that lets a prosecutor watch a constitutional judge for fifteen days and then truthfully deny that the judge was under investigation has a vocabulary problem before it has an ethics problem.

Who holds the measure while it runs
The decision would matter differently if an independent authority had to authorize or validate it during those fifteen days. None does, and the reason is worth stating precisely, because it is the opposite of a hierarchy.

Article 223 puts the execution of interception in the hands of judicial police officers acting “under the direction and control of the prosecutor” who handles the case. In February that was the Special Operational Force of the Tirana police; on other occasions it may be the Special Prosecution’s own National Bureau of Investigation, the judicial police that Law 95/2016 gave it. Either way the officers who follow the target report to the prosecutor who signed.

The special prosecutor who signs an Article 221, paragraph 2, authorization is himself substantively independent. Article 13 of Law 95/2016 provides that special prosecutors decide independently and that a higher prosecutor may not instruct them on the substance of an investigation; Article 15 makes the head of the Special Prosecution its administrative head and repeats that he may not instruct on the substance of a case. He is elected by the High Prosecutorial Council and removable only by it. The 2016 reform built it that way on purpose, to end the political capture of prosecutors, and we would defend that design today. Its consequence here is exact. For the initial measure, the Code requires no separate independent authority to authorize or validate the decision of a prosecutor whom no one inside his own institution may direct either.

The judge the spies got
Here is the detail that should give pause even to the Special Prosecution’s firmest defenders.

The same 2017 reform placed a judicial gatekeeper in front of a different surveillance power. Under the 2003 law as it stood, the State Intelligence Service and the other security services sent their requests for preventive interception to the Prosecutor General for approval. Law 69/2017 took that authority away from the Prosecutor General and gave it to the president of the Anti Corruption and Organized Crime Appeals Court. A judge. For preventive electronic interception under Law 9157, the 2017 legislature placed judicial approval between the requesting authority and the interception.

The prosecutor who sits across the corridor from that judge needs no signature at all to begin an Article 221, paragraph 2, measure. Preventive electronic interception under Law 9157 required the Special Appeals Court president from the outset. An initial Article 221, paragraph 2, measure did not, and does not.

And the judge who gates those interceptions is a judge of the anti corruption courts. He is not on Article 75/a’s status list, but the offences the Special Prosecution exists to pursue, corruption of judges among them, are on its offence list whoever is accused. The judge who gates preventive interception can therefore himself fall within the Special Prosecution’s investigative jurisdiction and, where Article 221’s threshold and target conditions are met, within the class of persons it may surveil.

Why did the Albanian legislature decide that this particular form of targeted covert surveillance may begin, and continue for as long as fifteen days, before an independent judicial officer has decided that the intrusion is justified?

When the safeguards begin
Defenders of the design will say there are safeguards. There are, and we should be exact about them, because the finding is not that they are absent. The finding is that none of them is a mandatory prior authorization, or a contemporaneous validation, of the initial decision.

Article 223 governs execution while the measure runs, and its paragraph 3 provides the first procedural step after it ends. Records and recordings go to the prosecutor and, within five days of the measure ending, are deposited together with the acts that ordered, authorized, validated or extended it; where deposit would prejudice the investigation, the court may authorize postponement until the preliminary investigation ends. Defenders and representatives of the parties are notified of the deposit and may examine the acts. That is a procedural role for a judge, and for a defendant it matters. It reaches parties. A person filmed under sub paragraph ç who is never made a party has no defender to notify.

Article 224 then governs what happens to the material. Paragraph 2 says that when the prosecutor decides to dismiss the case he must notify the court in writing; the court sets a deadline for destroying the records “and informs the surveilled person”. On the prosecutor’s request, that notification may be omitted where there is danger to the life or health of others or to an investigation already begun. This is the Code’s express mechanism for telling a surveilled person afterwards, and we do not wish it away. But it is timed to dismissal, not to the end of the surveillance; it is triggered by the prosecutor’s own decision to close; and the request to withhold it comes from the prosecutor whose measure it was.

Two features of Article 224 sit awkwardly with paragraph 2 measures. Paragraph 1 sends requests for destruction to “the court that validated the interception”. For a measure under Article 221, paragraph 2, no court validated anything. And the article speaks of the prosecutor “deciding” dismissal, language that predates the 2017 reform’s distinction, reflected in Article 327, between cases the prosecutor dismisses himself and cases in which he asks the preliminary hearing judge to do so. How Articles 222(8), 223 and 224 fit together for a measure no judge ever saw is not a question we can answer from the text, and we do not pretend to.

Article 222/a gives an appeal. Within ten days of “coming to know of the interception”, an interested person may challenge the decision permitting it before the Court of Appeal for breach of Article 221’s criteria, and the court may quash it and order every recording deleted. The remedy is real, and in principle available whenever knowledge arrives, including during the measure. Article 224, paragraph 2, is the Code’s express notification route when the case is dismissed.

Article 226 prohibits the use of interception results obtained outside the cases permitted by law or in breach of Articles 221 to 225. It is therefore a genuine exclusionary safeguard, but an ex post one: it does not determine whether an Article 221, paragraph 2, measure may begin.

The High Justice Inspector may investigate a prosecutor’s conduct on complaint or on his own initiative, including on information from the press, and has statutory powers to inspect prosecution offices and obtain documents; the High Prosecutorial Council may discipline. That is a genuine control and it does not depend on the target knowing. It is disciplinary and after the fact. It is not an authorization.

The trial court may rule on admissibility, and the Constitutional Court may hear a complaint afterwards. The Court has shown it will draw lines around the Special Prosecution’s methods: in Decision no. 44 of 29 July 2025 it held that searching stored telephone data protected as personal data or correspondence should in principle receive prior judicial authorization, while allowing emergency physical seizure subject to later controls, and it ordered unrelated material destroyed. That is a real check. It is also a check exercised by an institution one of whose judges had been filmed for fifteen days some months earlier.

None of these mechanisms is a mandatory prior authorization or a contemporaneous validation of the initial Article 221, paragraph 2, decision. That is the whole of the finding, and it is enough.

The honest concession
We should say plainly where the design is ordinary, because the argument is stronger for it.

Visual observation in public places without a judge is not an Albanian eccentricity. The Albanian Code descends from the Italian one, and Italian law is, if anything, lighter on this specific point: the Court of Cassation treats video recording of persons in public places as atypical evidence that a prosecutor may direct without a judicial decree, and the code fixes no duration. The capture of spoken conversations is a different matter in Italy as everywhere, engaging the protection of communications rather than of appearance in public, and we do not suggest Italian law permits that on a prosecutor’s word. France, too, gives the prosecutor a first period on his own authority for location tracking, fifteen days for specified serious offences and eight for others, before the liberty and custody judge must take over. A fifteen day prosecutorial opening for visual surveillance and tracking is therefore not unique to Albania, and we do not claim it is.

The European Court of Human Rights has treated surveillance in public as a lesser interference than the interception of private communications, and the Albanian commentary justifies the lighter regime in exactly those terms, citing the Venice Commission’s 2007 opinion on video surveillance in public places by public authorities. That opinion concerns public authority video surveillance of public places. It is not an opinion about a named individual subjected to a fifteen day targeted observation by a special police unit with a file open on him. The rationale was borrowed from one kind of measure and applied to another.

The sharper comparison is Germany, because the judicial trigger there is materially earlier. Under section 163f of the German code, longer term observation of a person, meaning surveillance that runs beyond twenty four hours continuously or on more than two days, may as a rule be ordered only by a court; the prosecutor may act in urgency, but the order lapses unless a judge confirms it within three working days. Section 101 then creates an express notification regime for the observed person and others substantially affected, subject to postponement and specified exceptions, with judicial control over any deferral beyond twelve months and an express right to seek review of the measure’s lawfulness.

Put the three side by side. Italy asks no judge and sets no clock for public filming. France gives the prosecutor eight or fifteen days. Germany requires a court once observation runs past twenty four hours continuously or onto a third day, and imposes a statutory duty to notify afterwards. Albania gives the prosecutor fifteen days, and provides notification after dismissal, subject to statutory withholding on the prosecutor’s request.

What Strasbourg asks
The Constitution protects personal data in Article 35 and the freedom and secrecy of correspondence and every other means of communication in Article 36, and the Constitutional Court treats the two separately. Article 17 permits limitation of either only by law, only in proportion, and never beyond the limits set by the European Convention on Human Rights. The Convention’s case law is therefore not foreign guidance here. It is the constitutional ceiling.

That case law is more careful than its critics and its enthusiasts usually allow, so we state it carefully. The Court has never held that a judge must authorize every surveillance measure. What it has held, from Klass against Germany in 1978 onward, is that it is “in principle desirable” to entrust control to a judge, and that where a non judicial body authorizes or supervises, that body must be genuinely independent of the authorities carrying out the surveillance and vested with real powers. In Roman Zakharov against Russia in 2015 the Grand Chamber found a supervisory system wanting in part because the supervising prosecutors were not sufficiently independent of the executive and could not be approached by the people affected.

On notification the Court treats subsequent notice as closely bound up with the effectiveness of remedies, since a person who does not know he was watched cannot challenge the watching. It accepts that notification cannot be given in every case, and asks instead whether the system as a whole lets a person obtain effective review without first being officially told. It judges regimes whole, not clause by clause.

We therefore do not say that Albania’s second tier violates Article 8. That would be a judgment for a court, on the whole regime. What we do say is narrower: the absence of any independent authorizer during the initial Article 221(2) period, together with the timing and conditionality of later notification, raises a serious safeguards question under Article 8.

Four amendments
This is a defect in the Code of Criminal Procedure, which means it belongs to Parliament, which is why it persists. Repairing it does not require touching the Special Prosecution’s independence from the executive, and we would oppose any repair that did. Four changes would suffice.

First, judicial authorization for the targeted covert surveillance of named persons under Article 221, paragraph 2, or at the very least the mechanism the Code already applies to urgent interceptions in Article 222, paragraph 2: the prosecutor acts, the court is notified within twenty four hours, and the measure lapses if not validated. The Code has the clause. It need only be extended one paragraph down.

Second, a notification duty that runs from the end of the surveillance rather than from the dismissal of the case, that reaches persons observed but never charged when the proceeding goes to trial against others, and whose deferral is decided by the court on its own assessment. Article 224 has the skeleton. It needs the timing, the coverage and the independence.

Third, a mandatory periodic audit of the registers kept under Article 222, paragraph 7, by the High Justice Inspector, with aggregate findings published. The Inspector already has power to inspect; what the law does not clearly require is that anyone routinely does.

Fourth, publication of a count. Albanian prosecutorial institutions already publish aggregate statistics on electronic interception, and in detail. The Prosecutor General’s report for 2025, published in April, records 822 interception decisions authorized by courts and 406 prosecutor orders or authorizations, covering 1,771 devices in use by 1,642 suspects; it separately records proactive investigation in 356 proceedings. The Special Prosecution’s own 2025 report, published on 9 March, records that interception was used in 186 proceedings, that its electronic command core executed 252 prosecutor authorizations, that the anti corruption courts issued 1,738 interception decisions, comprising 373 permissions, 235 validations and 1,130 extensions, and that 3,004 endpoint devices were intercepted. The report describes that table as covering proceedings in which telephone interception was sought. Those are figures for devices. The Special Prosecution does not, in the published 2025 report, separately disclose how many Article 221, paragraph 2, authorizations were issued for covert photography, filming, video surveillance or location tracking. The Code requires every such authorization to be entered in the Article 222, paragraph 7, register. The question is therefore simple: how many entries does that register hold, how many people do they concern, and how many later went to a court for extension.

The Special Prosecution’s independence from government is something this newsroom has argued for and will go on arguing for. Independence from government was never meant to be independence from a judge. Parliament placed a coercive power inside an independent institution and put no independent decision maker between that institution and the citizen it chooses to watch, for the initial fifteen days. The Special Prosecution did not take that power. It was handed it, in one paragraph, by a legislature that in the same year insisted on a judge before the intelligence services could intercept anyone.

The register
We return to where we began, because the page tells you what the law is better than the law does.

The order was executed by a police unit acting under the direction of the prosecutor who signed it. Its results went to that prosecutor. Its existence was recorded in the register that Article 222, paragraph 7, requires every prosecution office to keep, listing the acts that order, authorize, validate or extend interceptions and the start and end of each. When the head of the institution was asked, in writing, whether anything was happening to a judge of the Constitutional Court, he answered a different question.

There is a register. The law requires it. The Special Prosecution can tell the public how many telephone devices it intercepted in 2025, and how many court decisions it obtained to do so. The Special Prosecution’s published 2025 report does not tell us how many first fifteen days were authorized under Article 221, paragraph 2. The entries exist. Its published count does not include them.

Renada Bici is a Tirana-based lawyer practicing in civil, criminal, and administrative law. She holds a law degree from the University of Tirana and has experience in both private legal practice and public administration. She writes for the Tirana Examiner Legal Desk.