Review of confiscation decisions under the Anti-mafia Law-preventive procedure

AuthorLirime Çukaj
PositionLecturer at the Criminal Law Department University of Tirana, Albania
IIPCCL Publishing, Tirana-Albania
Academic Journal of Business, Administration, Law and Social Sciences Vol. 1 No. 3
November 2015
ISSN 2410-3918
Acces online at
Review of confiscation decisions under the Anti-mafia Law-preventive
Dr. Lirime Çukaj
Lecturer at the Criminal Law Department
University of Tirana, Albania
The review of final decisions is regarded as an unusual means of appeal aimed at countering
a final decision that is considered adjudicated (res judicata). This means of appeal has been
provided for in the European Convention on Human Rights, the Constitution of Albania, and
the national laws of the Albanian state. Thus, at first sight, the review seems to be in
contravention of Article 4 and 34 of the Constitution, the principle of legal certainty. But, in
essence, this extraordinary means of appeal attempts to establish effective justice by overturning
a wrong decision, despite the fact that this decision has been executed, suspended or terminated.
To combat dangerous criminal activities Albania has adopted the Anti-mafia Law, which
provides the confiscation of proceeds that are obtained from some of the most dangerous
criminal activities such as organized crime, terrorist acts, trafficking, corruption and laundering
of crime proceeds. This kind of civil confiscation constituted a novelty in the procedural law
and it was imposed when the person was not able to prove the lawful origin of these proceeds
obtained from criminal activities. But can these confiscation decisions about the final transfer
of property to the state be reviewed? If so, which law shall be applied, the civil or criminal
one? This and other answers will be provided in this paper.
Keywords: review, principle of legal certainty, confiscation, Anti-mafia Law, criminal activities.
1. Review as an exception to the principle of legal certainty
The European Convention on Human Rights, protocol 7, Article 4, provides for the
review of a final criminal decision. In harmony with this Convention, Article 4,
provides that: “The law constitutes the basis and the boundaries of the activity of the
state” and Article 34 of the Constitution of the Republic of Albania stipulates that:
“No one should be sentenced more than once for the same criminal offense or be tried again,
except for cases when the re-adjudication of the case is ordered by a higher court, in the
manner specified by law”. In compliance with this constitutional norm, there is the
provision of Article 7 of the Code of Criminal Procedure: “No one shall be tried again
for the same criminal offence, for which he has been finally sentenced, except for
cases when re-adjudication has been decided by the competent court”.
These constitutional and procedural norms provide for three of the most important
principles: i) the principle of not being tried twice for the same offence (ne bis in idem)
ii) the principle of legal certainty (res judicata) and iii) the possibility of reopening the
criminal case as a possibility of deviation from the principle of legal certainty.
As regards the third principle, it can be allowed according to the rules provided for
by the law, namely by the Code of Criminal Procedure or the Code of Civil Procedure.

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