The Crime Nobody Investigates

Albania has made the disclosure of secret investigative acts, by those entrusted to hold them, a felony under its own Criminal Code. The recurrence of such disclosures, across cases and across the press, raises a question that belongs to SPAK, to the Special Court, and to the partners who built and fund them. An institution whose entire authority rests on procedure cannot treat the failure of its own procedure as someone else’s story.

Tirana Examiner · Legal Desk

There is no serious argument in this country for returning to what preceded SPAK. The Special Prosecution and the Special Court were the structural answer to a justice system that had learned to lose files, to time information for political seasons, and to convict or acquit in the press long before a courtroom was troubled. The 2016 reform, the vetting, the architecture of the special bodies, all of it was built on a single promise: that there would now be an institution disciplined enough to keep a case sealed until the law opened it. The European Union and the United States did not invest in SPAK because it would produce indictments. The old system produced indictments. They invested because SPAK was meant to produce them cleanly.

That promise is what the pattern of leaks now erodes. The pattern has to be named for that reason, not in spite of the support SPAK deserves.

What the law already says
Albania does not need a new rule to understand the problem. It needs to read the ones it has.

The Criminal Procedure Code treats the acts of a preliminary investigation as secret. Article 279 establishes the secrecy of those acts; Article 103 prohibits their publication, in whole or in part, through the press, for as long as that secrecy holds. Access during the investigation is a closed circle by design: the prosecution, the Special Court when it rules, and the parties at the procedural moments the Code defines, chiefly once a security measure is executed and the defence must be given the acts that justify it. Nothing in this regime contemplates a file circulating in the open press while the prosecutor continues to write “investigations are ongoing” at the foot of every communiqué.

The state has gone further than prohibition. Through Article 295/a of the Criminal Code, it has made unauthorized disclosure a crime, and it has graded that crime by the position of the person who discloses. Where the source is a prosecutor or a judicial police officer, the act carries imprisonment of one to five years. Where the source is another person who had knowledge of the proceeding and was formally warned to keep it, the exposure is up to three years. The graver tiers reach disclosures that touch the identity or location of protected witnesses and justice collaborators, and rise to between three and eight years where a disclosure has cost a life or endangered one.

Read that scale against the public record and the conclusion is uncomfortable but plain. Material that the Code seals has surfaced across a run of unrelated proceedings, and in more than one newsroom. The spread is the part that matters. One warned outsider does not reoffend reliably across unconnected cases; a perimeter that has stopped holding leaks to whoever is near it. The conduct visible in case after case is not a grey zone of media practice. It is conduct the Albanian state has classified as a felony, attached a custodial sentence to, and aimed first of all at the people inside its own prosecuting chain. The leaks are not evidence that the law is unclear. They are evidence that a clear law is not being enforced against those most able to break it.

A liability the press does not carry
There is a second body of law that the funders of this reform know better than most, because it is the law of the Convention they require Albania to honour. Article 6 of the European Convention guarantees the presumption of innocence, and the Strasbourg Court has held since Allenet de Ribemont that this guarantee binds the state, that it reaches statements and disclosures by public authorities, and that it is breached when those authorities feed a public conviction before any court has reached one. A defendant tried in the newspapers, on material released from a sealed file, is a defendant whose Article 6 rights the state has put at risk. The primary exposure does not sit with the outlet that published. It sits first with the institution that failed to keep the material in.

This distinction matters for the tone of any honest treatment, including this one. The newspapers that publish leaked acts are, for the most part, doing the work a free press exists to do, and the Convention protects them when they receive and publish material of public interest. The wrong, where there is one, attaches to the disclosure, not to the reporting. That is why this is not a complaint about journalism. It is a complaint about a justice institution that cannot, or will not, keep its own files.

Cannot, or will not
The pattern admits two explanations, and the institution’s response to date has resolved neither.

The first is porousness. A body that moves dossiers of tens of thousands of pages, that shares them across prosecutors, police, experts, and a widening set of defendants and their lawyers, may simply be unable to secure them. If that is the case, the failure is one of custody and discipline, and it is fixable by measures any serious prosecution service already operates.

The second is strategy. Selective material, favourable to the prosecution’s narrative, released to shape opinion in advance of a verdict, is a different thing entirely. It is the old instrument in new hands, and it is the precise practice the special bodies were created to retire.

Both are failures. They differ in culpability, in remedy, and in what they say about the institution’s character, and the pattern alone cannot tell an outside observer which is operating in a given case. What can be said is that SPAK has not, in any sustained or credible way, told the public which it is. That silence is not neutral. For an institution whose legitimacy is its only durable asset, declining to account for whether its perimeter is broken or its discretion abused is itself a part of the failure.

Why this reaches the desks of the partners
For SPAK and the Special Court, the stake is direct: every disclosure spends a measure of the procedural credibility that distinguishes them from what came before, and that credibility does not replenish on the same schedule as a conviction rate.

For the European Union and for the Western missions that have underwritten this reform, the stake is the one written into the accession framework and the justice benchmarks they themselves drafted. Rule of law conditionality is not satisfied by the existence of institutions. It is measured by whether those institutions observe the law that governs them. A justice body that cannot keep its own Criminal Procedure Code from being breached, again and again, while the offence its own Criminal Code defines goes unprosecuted, is not a reform success with a public relations problem. It is a benchmark that has not been met, recorded as if it had.

What is to be done
The remedy has an internal half and an external one, and they are not alternatives.

Internally, SPAK and the GJKKO should be expected to do three things that are within their power now. To impose and document a custody regime for case files that makes unauthorized disclosure traceable rather than ambient. To open, and to be seen to open, internal investigations under Article 295/a when secret acts surface in the press, applying the law to the prosecuting chain with the same seriousness it applies to everyone else. And for the Special Court to treat the publication ban under Article 103 as a live obligation rather than a dead letter, with the disciplinary and referral consequences the Code already provides.

Externally, the partners who fund and assess this reform should make the integrity of the file a measured benchmark rather than an assumed one. Continued support is not charity and should not be unconditional; it should be tied, explicitly and verifiably, to a demonstrated reduction in unauthorized disclosure and to evidence that Article 295/a is enforced upward as well as downward. This is not a punitive posture toward an institution worth defending. It is the posture of an investor protecting the asset, which is the credibility of Albanian justice, from the one party currently best placed to spend it.

SPAK asked this country to believe that the file was, at last, safe. The record of recent years says the file is not safe, and the law that was meant to keep it so is enforced everywhere except against those who hold it. Belief of that kind is built slowly and leaks quickly, and it does not return to an institution by the same van that carried the dossier out.