Repetition of judicial review before the court of appeal - Problems encountered in Albanian judicial practice

• Pages: 48-56

Vol. 10 No. 3

November, 2024

Academic Journal of Business, Administration

Law and Social Sciences

48

E-ISSN 2410-8693

ISSN 2410-3918

Research Article

© 2024 Enerjeta Shehaj

This is an open access article licensed under the Creative Commons

Attribution-NonCommercial 4.0 International License

(https://creativecommons.org/licenses/by-nc/4.0/)

Repetition of judicial review before the court of appeal - Problems

encountered in Albanian judicial practice

Enerjeta Shehaj

Administrative Appeal Court of Tirana, Albania

DOI: hps://doi.org/10.2478/ajbals-2024-0019

Abstract

Article 13 of the ECHR provides that: “Every person whose rights and freedoms recognized by this

Convention have been violated, has the right to lodge an eective appeal before a national institution even

when this violation has been commied by persons acting within the exercise of their ocial functions”.

The right to eective appeal is a fundamental human right and implies the right of the

individual to appeal, the existence of a certain body for reviewing the appeal, unconditional

acceptance of the appeal for review, reasonable deadlines for its review, an objective review,

judicial control, as a nal check on the appeal.

The Court of Appeal judges as a court the fact and the law and as such it has the its own right

but also at the request of the party to partially or fully repeat the judicial review.

Article 427, paragraph 4 of the Criminal Procedure Code has been amended recently by the

Law 35/2017, whereby it is provided that: “When the defendant is found not guilty, the court of

appeal cannot nd him guilty solely on the basis of a dierent assessment of the evidence obtained in the

rst instance trial”.

Based on the grammatical and logical interpretation of this provision, it results that the criminal

court of the reviewing jurisdiction cannot declare the defendant innocent by the criminal court

of the original jurisdiction, on the basis of the same facts and evidence, but by assessing them

dierently, guaranteeing this way a provision the respect of the principle of non-compliance

with the position of the defendant.

But what is put forward for discussion by the practice of the Courts is the fact that the Courts

of Appeal have in some cases found the defendant guilty, on the same facts and evidence, on

the basis of which he was declared innocent by the court of rst instance, after the contrary

assessment of the facts and evidence was made by the court of rst instance, misinterpreting

Article 427/4 of the Criminal Procedure Code.

Keywords: appeal, judicial review, evidence, repetition, reconsideration of the investigation.