When the Clock Starts

Registration, due process, and SPAK’s constitutional bargain

By the Tirana Examiner Legal Desk

Albanian criminal procedure turns on a single procedural act. The moment a prosecutor enters a person’s name in the registry of criminal offences is the moment that person acquires formal procedural status: the right to know the accusation, the right to defense counsel at investigative acts, the right to contest evidentiary steps, and the start of the statutory deadlines within which the investigation must conclude. Before that moment, the person has no formal procedural status. Investigative acts may be carried out against them, surveillance may be authorized, evidentiary material may be gathered, and none of it triggers the defensive rights that the Code of Criminal Procedure guarantees. The registration of the name is not a formality. It is the doctrinal event that converts an inquiry into a prosecution with constitutional consequences.

This is why the question of when a prosecutor is obliged to register a name is not a technical matter of internal procedure. It is the question on which the practical content of Albanian due process depends. A system in which registration occurs at prosecutorial convenience is a system in which procedural rights exist on paper but not in time. A system in which registration is an obligation triggered by the attribution of a criminal fact to an identified person is a system in which procedural rights begin when they must begin, which is when the state starts building a case against someone it has already identified.

The distinction is not academic. On this question the Albanian legal order speaks with rare unanimity: the Code establishes the obligation, the Supreme Court has twice held it binding rather than discretionary, the 2017 reform sharpened it, and the Prosecutor General has acknowledged on the parliamentary record that the obligation is not honored in practice. The gap between what four layers of Albanian law require and what the system does is the subject of this analysis.

The rule, and its acknowledgment
Article 287 of the Code of Criminal Procedure establishes the registration trigger. The prosecutor is required to enter in the registry of criminal offences any criminal fact that comes to the prosecution’s attention, together with the name of the person to whom that fact is attributed, as soon as the attribution arises. The statutory investigation deadline, three months for ordinary prosecution and six months for the Special Prosecution against Corruption and Organized Crime, runs from the moment of that registration, subject to extensions that can reach two years and, in exceptional cases, three. The structure of the rule is unambiguous. The clock starts when the name is entered. The obligation to enter the name arises when attribution crystallizes. Prosecutorial discretion governs neither the timing nor the decision.

The Supreme Court, exercising its constitutional role in unifying criminal procedural practice, has ruled on this point twice. In Unifying Decision no. 3 of 27 September 2002, the Court held that the registration of the name of a person to whom a criminal fact is attributed is an obligation that arises at the moment of attribution, whether that attribution appears in the original complaint or emerges during the investigation. In Unifying Decision no. 2 of 20 June 2013, the Court reaffirmed and extended that standard, ruling that the prosecutor does not enjoy discretionary authority over the timing of registration once attribution has crystallized. Both decisions are binding on all criminal courts, and by extension on the prosecutorial practice those courts review.

The 2017 amendments to the Code of Criminal Procedure, adopted as part of the broader justice reform package, reinforced the same principle at the statutory level. The amendments narrowed prosecutorial discretion over the moment of registration and expanded the supervisory role of the preliminary investigation judge. The legislative intent was to close the gap through which delayed registration had been possible, and to subject the phase before registration to judicial oversight. The prosecutor retains the assessment of whether reasonable suspicion exists, but once attribution is present, the act of registration is a legal duty, not a discretionary choice.

In May 2024, at a joint hearing of the Assembly’s Committee on Laws with the Prosecutor General, Olsian Çela, and the High Inspector of Justice, Artur Metani, a member of the Committee raised the question of whether the registration obligation articulated by the Supreme Court was being honored in practice. The Prosecutor General’s answer, recorded in the parliamentary transcript, is the most institutionally consequential statement on Albanian criminal procedure in the current cycle. The practice of delayed registration, Çela acknowledged, facilitates the prosecutor’s position in relation to the investigation and grants expanded possibilities, but it penalizes citizens, and the primary concern must therefore be the protection of citizens. This is not a defense counsel’s characterization of the system. It is the head of the Albanian prosecutorial service acknowledging, on the parliamentary record, that the system operates in a manner that favors the investigator and disadvantages the investigated.

Four layers of alignment, then. The Code establishes the rule. The Supreme Court has twice confirmed it. The 2017 reform sharpened it. The Prosecutor General has conceded that practice diverges from all three. The gap is the subject.

The European standard
The Albanian registration rule is not an isolated procedural provision. It belongs to a European tradition of criminal procedure in which the formalization of a person’s status as a suspect triggers defensive rights, and in which that formalization is treated as an obligation rather than a prosecutorial preference. Two comparative systems are instructive.

In Italy, Article 335 of the Code of Criminal Procedure requires the public prosecutor to enter in the registry of persons under investigation, the registro degli indagati, any person to whom a criminal act is attributed, immediately upon the attribution becoming known to the prosecution. The Italian Court of Cassation has developed an extensive body of jurisprudence on the consequences of delayed registration, holding in several rulings that failure to register at the proper moment entitles the defense to challenge the procedural timeline and, in egregious cases, to seek the exclusion of evidence gathered during the unregistered phase. The Italian framework treats the timing of registration as a doctrinal question of constitutional weight, not as a matter of internal prosecutorial management.

In Germany, the doctrine of Beschuldigtenstellung, under sections 136 and 163a of the Code of Criminal Procedure, holds that a person acquires the status of Beschuldigter, a suspect with defensive rights, as soon as the investigating authority concretely directs its inquiry against that person. The moment of formal notification is doctrinally distinct from the moment at which the status objectively arises, and the Federal Court of Justice has ruled that attempting to delay formal notification in order to preserve the procedural freedoms of the investigative phase is itself a violation of the defensive architecture that the Code establishes. The German framework, like the Italian, treats the phase before formal status as a zone that the state may not exploit.

The Albanian rule, in both its Supreme Court articulation and its 2017 statutory reinforcement, stands inside this European tradition. It is not a local technicality. It is the Albanian translation of a principle that European criminal procedural law has worked out carefully over several decades: that the state’s power to investigate a named person must be coupled, from the moment the naming crystallizes, with the person’s power to defend. A system that decouples those powers, even temporarily, ceases to operate within the European procedural tradition, whatever the formal provisions of its Code may say.

SPAK and the constitutional bargain
The Special Prosecution against Corruption and Organized Crime, SPAK, is the institution through which most Albanian criminal procedure involving senior public officials now passes. SPAK operates under the same Code of Criminal Procedure as ordinary prosecution and is bound by the same Supreme Court unifying decisions on registration. It also operates under extended autonomy: longer statutory deadlines, a dedicated judicial track, and a constitutional mandate that places it outside the hierarchical authority of the Prosecutor General. These extended powers were granted on an explicit constitutional bargain, heightened autonomy in exchange for heightened procedural rigor. That bargain is the same logic Venice Commission opinions apply to autonomous prosecutorial institutions generally, and it is the logic European Union rule of law frameworks apply to their assessment of such institutions. The registration obligation is among the clearest tests of whether the bargain is being honored.

The question of registration practice inside SPAK is not hypothetical. In May 2024, SPAK itself reopened an investigation into whether prosecutors and police officials in an earlier case, known as the Xibraka file, had removed the name of a specific individual from the registry of criminal offences during an investigation, thereby shielding that individual from the procedural consequences of registration. The reopening, registered as Case no. 88/2024, proceeds under the same doctrinal rule this analysis describes: that registration is an obligation triggered by attribution, not a discretion governed by prosecutorial preference. If that case produces judicial findings, those findings will be the first contemporary Albanian determination on the legal consequences of deliberate delay or omission in registration. That the institution itself has invoked the rule as binding in one matter is the strongest available signal that SPAK recognizes registration as a live standard rather than a decorative one.

The broader question the rule poses to SPAK is structural. The constitutional bargain that produced the institution presumes that SPAK will honor the procedural standards binding ordinary prosecution more rigorously, not less, because the legitimacy of its extended powers rests on the proposition that those powers are matched by extended discipline. The Supreme Court unifying decisions on registration apply to SPAK. The 2017 amendments apply to SPAK. The Prosecutor General’s May 2024 acknowledgment, spoken about the prosecutorial system as a whole, describes a practice from which SPAK was designed to be the corrective rather than the continuation. The question whether SPAK’s internal practice on registration timing meets the standard the doctrine requires is currently being tested in several proceedings before the Special Court. That testing is legitimate. It is the kind of testing the institution was designed to withstand.

The position of this desk is limited but firm. The registration rule is the correct rule. The Albanian doctrine articulates it in terms consistent with the Italian and German frameworks within which it belongs. The Prosecutor General has acknowledged on the parliamentary record that the system as a whole does not honor the rule. SPAK, which now carries the practical weight of Albanian prosecution, has both inherited the rule and, through the Xibraka reopening, invoked it against prior practice. What the doctrine requires of the institution is not an answer in any specific case, which is a matter for the courts. What the doctrine requires is that the institution operate the rule transparently as a general standard: publish internal guidance on registration timing, subject that guidance to external scrutiny, and demonstrate through its practice that the rule is honored as an obligation rather than asserted as a commitment. An institution built on the constitutional bargain SPAK was built on is strongest when it demonstrates, rather than asserts, adherence to the procedural standards that are the source of its legitimacy.

The question of registration in specific current proceedings is before the courts. The answer will come from them. The answer on the general standard, from the institution itself, would strengthen SPAK more than any individual case outcome can.