Access to Justice in Albania – why is Legal Capacity so Important?

Access to Justice in Albania – why is Legal Capacity so Important?

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What happens when an ‘insanity defense’ is used in Albania for people facing criminal charges? Today we have a guest blog from our partners at the Albanian Disability Rights Fund who are working in partnership with the Albanian Helsinki Committee (AHC). The AHC has been working with people who find themselves in this unique situation. What they discovered highlights the necessity of advocacy with a strong awareness of legal capacity law and policy.



The criminal legislation of the Republic of Albania provides that the person has no criminal responsibility if, at the time of commission of the criminal offense, was “suffering” from a mental perturbation or neuropsychic that has completely ruined his mental balance and therefore he has not been able to control his actions or inactions, and nor to realize that he is commiting a criminal offense, (article 17 Criminal Procedure Code). Also, criminal procedural provisions define that criminal proceeding can not commence and, if it has commenced, must be ceased at any stage of the proceedings when the person is criminally irresponsible (article 290/1/b of the Criminal Procedure Code). However against such individuals the criminal court can give medical measure for compulsory treatment, which is performed ambulatory, or in a health care institution (article 46 of the Criminal Code), as the definition of the court. In these cases the criminal court can not be expressed about limiting or removing the legal capacity of the respective person, because this is the competence of the civil court.

Despite the above, people with mental health problems enjoy all rights and fundamental freedoms, except those that are restricted by law, and therefore they have the right to act for protection of their rights. By monitorings of the Albanian Helsinki Committee, resulted that there are about 150 people with medical measure “forced medication in a health institution”, who are placed, contrary to the law, to serve this medical measure near to the prison institutions.

Albanian Helsinki Committee Members

Albanian Helsinki Committee Members

The law has provided that medical measure may be interrupted or changed and that the court is obliged, at least once a year, to review this case with its own initiative. Beside this, Article 471 of the Criminal Procedure Code provides that in respect of all searches, related to the execution of penal court decisions, the court proceeds with the request of the prosecutor, the request of the interested person or with the request of the defence lawyer, which means that the person who “suffers” the medical measure, can address to the court, to require interruption or to require the change of the medical measure given in his charge. In this regard, we have found numerous problems, related to the access to court of these individuals.

Since these individuals are excluded from criminal responsibility, judges tend to treat these people as individuals who do not have the legal capacity, even though does not exist any civil court decision for this aim. If a person “suffers” a medical measure and he addresses, personally, at the court, upon a request, his request will not be considered on the grounds that in conditions when the person, because of mental health problems, is excluded from criminal responsibility, can not addresses personally the request at the court. On the other side the Civil Procedure Code (article 382) prevents the person with mental health problems to address the civil court and to request the removal or limitation of the legal capacity with the aim to gain the right to a custodian, who will act for his interest. The right for this request belongs only to the spouse, next of kin, prosecutor, and persons who have a legitimate interest to this fact, who enjoy this opportunity as a right that can use it when they appreciate reasonable. Practically, neither of them do not have the obligation to proceed in this direction in order to create real opportunities for the person who serve the medical measure, to address the court, although such a thing we do not appreciate in accordance with the Article 12 of the Convention of United Nations “For the Rights of Persons with disabilities”.

Because of these individuals are placed in prison institutions to serve medical measure, their freedom and other rights are limited without law, because they serve the same restrictions as persons sentenced to imprisonment.

These cases are serious situations of violations of freedoms and human rights, and therefore we are motivated to act quickly to implement the Article 12 of the United Nations Convention.

Albanian Helsinki Committee



This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of PERSON (Partnership to Ensure Reforms of Supports in Other Nations) and can under no circumstances be regarded as reflecting the position of the European Union.