Abstract
In 2016 Albania went through a major justice reform which provided legislative changes to the already existing institutions, established new ones and sought to improve the procedural guarantees of the accused in criminal trials. While the Albanian Code of Criminal Procedure prior to the changes did not provide for biological evidence or a medical intervention in the course of a criminal investigation, the new legislative changes introduced the concepts of biological evidence and the compulsory physical examination as part of tools in search of the evidence. Even though the draft amendments to the previous Albanian Code of Criminal procedure recognized the problems encountered in practice during the collection of biological evidence vis à vis individual’s rights to personal integrity and dignity, the application of newly introduced and enacted provisions remains still unclear and raises concerns, not only regarding the possible arbitrary use of such tools by law enforcement authorities, but also on the possible conflicts that can arise from the application of such procedures by medical examiners and physicians and the fundamental rights of the person under examination or undergoing the medical procedure/intervention.
Highlights
Even though the draft amendments to the previous Albanian Code of Criminal procedure recognized the problems encountered in practice during the collection of biological evidence vis à vis individual’s rights to personal integrity and dignity, the application of the newly introduced and enacted provisions remains still unclear and raises concerns, regarding the possible arbitrary use of such tools by law enforcement authorities, and on the possible conflicts that can arise from the application of such procedures by medical examiners and physicians and the fundamental rights of the person under examination or undergoing the medical procedure/intervention
Even though the new provisions[12] were considered by some as in accordance with the case-law of European Court of Human Rights (ECtHR) as the interference would be foreseeable and the individual would have access to such legal provisions,[13] in our opinion, the legislative changes were necessary, they remain very broad, can be arbitrary used by state authorities and could result in conflicting interests between law enforcement agents, the person performing the collection of biological evidence or medical procedure, and the fundamental rights of the person subject to such procedures
While the new changes to Albanian Code of Criminal Procedure follow a legitimate aim and were necessary to guarantee the fundamental rights of people subject to physical searches, they need further reviewing
Summary
In 2016 Albania went through a major justice reform which provided legislative changes to the already existing institutions, established new ones and sought to improve the procedural guarantees of the accused in criminal trials. Evidence) were considered by some as in accordance with the case-law of ECtHR as the interference would be foreseeable and the individual would have access to such legal provisions (through ACCP),[13] in our opinion, the legislative changes were necessary, they remain very broad, can be arbitrary used by state authorities and could result in conflicting interests between law enforcement agents, the person performing the collection of biological evidence or medical procedure, and the fundamental rights of the person subject to such procedures. The modernist notion of bodily integrity structures intersubjective relations and is more apparent in moments of challenge, such as consent for medical care, criminal evidence collection, and reproductive issues, such as forced pregnancies or abortions.[39] For healthcare providers this means respecting the patient’s right to selfdetermination, but at the same time creating the necessary conditions for autonomous choice through informing the patient of all possible treatment options, a clear and. Function and so cause considerably less interference with a person’s physical and mental integrity than forcible medical intervention.[54]
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