From an analysis of some of the Tirana Court decisions it results that many of them not only differ from one another but also in no case they have given a maximal punishment, as the Penal Code provides in a number of cases. Lawyers share different opinions for this issue while minimal punishment for theft defendants still remains a concern.
While theft crime has scored record numbers in the last years and thus it has become an alarm for citizens and police forces, judges consider it as one of the lightest crimes. Though for a theft considered as “simple” in the judicial language is provided up to 7 years of imprisonment, in no case the court has sentenced with the maximal punishment for this crime even the repetitive persons considered as such during the trial when the risk for a longer punishment is greater. In fact this not only does not happen, but from the penal decisions given from the Tirana Court it results that for the same penal act carried out in the same conditions and from persons with the same criminal characteristics are taken different decisions.
Even decisions with the most minimum possible for violent theft cases have been given when the law provides up to 15 years imprisonment. In fact, the suspected authors for these acts have received the same punishment, even less than those accused for light thefts. During an investigation that we have carried out it is observed that the Tirana Court keeps different stands in the decisions given for theft crime. From a verification we have made for the decisions given from the judge A. G, we have discovered that for 7 trial cases for different persons accused for the same penal act the judge has given different punishments. The lacking standard of the final decision unification for the punishment of the guilty persons proved for penal acts with the same consequences, same acting manners continues to be a highlighted problem in the justice system of Albania.
The Head of Tirana Appeal Prosecution, Shkelqim Hajdari
When asked about the double standard in the courts, Shkëlqim Hajdari, the head of the Appeal prosecution and the leader of the “Prosecutors of Albania” Association says that the law leaves free hand to the judge for giving the decision and punishment depending on the act circumstances and the defendants’ personality. “Each penal act, each author has its own importance regarding the type of the penal act, the defendant’s personality, the concrete circumstances of the act. Based on this substantial principle, the lawmaker has defined the minimum and the maximum punishment for the penal act with the aim that within this margin the judges give a just punishment in proportion with the penal act consequences.In case that a judge has two analogous cases and for the first case has given a sentence with imprisonment while for the other case has given only a fine,when the circumctances are the same then we meet here the usage of a double standard.But this kind of subjecitvity can not let us go.This kind of subjectivism is only fixed up within the judiciary by the first instance in the Appellate Court.”-states Hajdari.
The Criminal Code of Albanian Republic has provided to different articles for the criminal charge of theft which provide different punishments but in many cases results that it is considerated like the same charge according to the final sentences given by the court.It comes for the article 134 which belongs to the criminal charge of “theft” and for the Article 139 which provides legal sanctions for the criminal charge of “ forcing theft”.Although seemingly very simple to understand the change between both even from a citizen without the proper education,by the black platoons of Tirana Court is mostly considered with the same value.Article 134 of Criminal Code provides”Theft of property is punished with a fine or with imprisonment up to three years.The same charge when is conducted in collaboration or more than once is punished with imprisonment from six months up to five years.The same charge when has brought serious consequences is punished with imprisonment from four up to ten years.Also when the same charge is conducted in collaboration with other persons and has brought serious consequences is punished with imprisonment from five up to fifteen years.”
On the other hand as provided by the article 139 of Criminal Code “The theft of property in asocciation with the use of force” is punished with imprisonment from five up to fifteen years. Only the second paragraph of the article 134 provides the same legal sanctions as the article 139.However it does not turn out to have happened in any case to be given the maximum sentence.On the contrary the criminal charges that are judged in application of Article 139,turns out to have been jugded mostly like simple thefts of property and if this was not enough the culprits have taken a very slight extent sentence,which in the most of cases is reduced even more due to the abbreviated trial.
Beside the various causes that push a person to theft,a no less important factor that has led to the growth of statistics for the crime against property in the tests conducted by law enforcement agencies turns out to be also the minimal sentence that court gives to the authors.Which is easily to understand from this double standard of the punishment for theft authors is another crime which happens during the trial of a crime.The lawyer Ndue Pjetra from the Association of Anti Corruption Lawyers says that the possibility of the judges abuse in decisions that they give for this criminal charge is evident.”The possibility of the abuse with decisions for this criminal charge is evident,currently due to the great difference between minimum and maximum of provided punishment.But you cant ask the judge why he or she gave that decision because evidences,defense and the case tratement have a great affect.”-states lawyer Pjetra.
Investigim.al has analyzed all the decisions given by the judge of first instance A.G for the criminal charge of property theft Article 134/1 ( is sentenced with penalty or imprisonment up to 3 years).In the court decision no.857 dated 28/06/2013 ,Taulant Ismaili a 21 year old boy,never convicted before was judged for the theft of an Iphone 4 which he had taken from a girl’s hand in the neibourghood called “Komuna e Parisit”.He was sentenced with 1 year and 4 months imprisonment.According to Article 59 of the Criminal Code was ordered the suspension of the execution of the sentence for the rest of the sentence that he would not
suffer of 1 year and 27 days,in order to prove the defendant for a 18 months period of time with the condition that during this period of time he would not commit any criminal offense.In this decision is distinguished the fact of ignoring the use of force element by the author,since in the police statement dated 27/04/2013 is reported that this theft was made using force.
The head of Association of Anti Corruption Lawyers Mr.Ndue Pjetra
“In the date 26/04/2013 23:50 pm ,by the operation called “Iphone 4” and after an operative job was made possible the arrest of the citizen Taulant Ismalili born on 06/03/1993,born and resident in ”30 vjetori” a neibourghood in Berat with an education of 12 classes,not sentenced before.The arrestation of this citizen was made because in the neibourghodd named “Komuna e Parisit” was caught in the act by a police patrol while he was taking with force from the hand an Iphone to the citizen F.T resident in “Medar Shtylla” street in Tirana.With the quality of material proof was sequestrated the telefonic device Iphone 4.Thus in this case is found a compromise with the classification of the criminal offense and mitigation of the circumctances of the incident for the author where is created the reasonable doubt with the aim of favorizing him.In the police declaration is mentioned the use of force while in the court decision is not mentioned any such fact.”In the cases when the theft was made with the use of force or violence,declared by the injured,but this fact could not be proved beacause the lack of visible injury,then the court must take into account the claims of the party that has suffered injuries and not to give the authors conditioned freedom” ads further lawyer Ndue Pjetra.
But according to the head of prosecutors in the Appellate Court, Mr.Shkelqim Hajdari the court can not give a havier sentence than the sentence asked by the prosecutor. “Albanian legilsation allows the judge to give a havier sentence than the sentence asked by the prosecutor.”I think that the judge can not give a havier sentence than the one we seek.Same as the extent of security,when previously the judge used to give a havier sentence than the one we used to seek.For this is made a great struggle to change because in this kind of cases the judge looses its role and turns in the role of persecutor,a role which must belong to the prosecutor who has to ask a havier security measure.The same logic should also serve for the sentence”,states Mr.Hajdari.
Regarding to the difference between the prosecutor’s seek and the court decision ,the lawyer Ndue Pjetra states that in case that the judge raises the security mass,than it leaves room for doubts.”When the prosecution asks for 2 years of imprisonment and the court gives 3 or 4 years this leaves room for the doubt that an abnormal action is happening.The court should not exceed the measure of punishment more than the prosecutor’s seek,because the prosecutor is the one who has led the investigations and in a such case is unjustified giving a heavier measure of punishment.In this point even the legislation creates premises for abuse” states the head of Association of Anti Corruption Lawyers.
The prosecutor Mr.Hajdari thinks that for the criminal offenses like theft should be an imprisonment conviction due to the large prevalence of this crime,but the Criminal Code has also provided alterantive punishments (like probation) “Alternative punishments could be apllied fot the theft which is made for the first time,in small quantities by minors.Therefore it should be impelmented as a sanction because actually it doesnt exist.Actually for the suspended sentence institution the Article 59 of Criminal Code we have to let the judge to decide.It should be given a conditional sentence for the criminial offenses up to five years imprisonment,with clearly specified criteria excluding repeaters and persons convicted several times.This means releasing prisons and would create presure on the convicts who have commited a crime for the first time and to inhibit the repeating of the criminal offense.” –concludes hic opinion the prosecutor Hajdari.
The Association of anti Corruption Lawyers is preparing a draft law for changes in Criminal Code where is included Article 134 of the Code for which will be proposed to lawmakers that for this criminal offense the imprisonment punishment be converted in seizure of riches with great value that wolud belong to the author.This,according to the head of association Mr.Pjetra ,would significantly reduce the number of thefts and the possibility of corruption across the triangle lawyer-prosecutor-judge.It is also found in these decisions that in cases when the defendant had no defense lawyer,the sentences have been more havier than in similiar cases when the defendant has been under the protection of a lawyer whom he has contracted before.
The convicted: Fatjon Tahiri,24 years old (never convicted before)
Type of theft: A mobile type “Iphone” with a value 17.500 ALL near National Museum
Prosecutor: Asks the sentence with 1 year imprisonment
Lawyer or the defendant:Asks mercy and a light security mass to the judge.
Judge: Decides his conviction with 2 (two) years imprisonment, in application of the Article 406 as provided in the Code of Criminal Procedure reduces 1/3 of the sentence and the final sentence for the defendant Fatjon Tahiri 1 (one) year and 4 (four) months imprisonment.
The convicted: Marsen Hysa 21 years old (never convicted before)
Type of theft: A boiler of Raki together with a copper lid,water pump and a generator.
Prosecutor:Asks his sentence with 9 (nine) months imprisonment,in aplication of th Article 406 as provided in the Code of Criminal Procedure asks his sentence with 6 (six) months imprisonment.
Lawyer or defendant: Asks the punishment of the defendant with detention time.
Judge: Decides his conviction with 3 (three) months imprisonment, in application of the Article 406 as provided in the Code of Criminal Procedure reduces 1/3 of the sentence and the final sentence for the defendant Marsen Hysa is 2 (two) months imprisonment.
The convicted: Vladimir Jonuzi 60 years old (convicted before)
Type of theft: A mobile type “Nokia 610” from a woman’s pocket,happened near “Stacioni i Trenit” Tirane.
Prosecutor: Asks 1(one) year and 6 (six) months imprisonment
Lawyer or defendant: Asks mercy and a light sentence because of his mental disorder and for his three kids.
Judge: Decides his conviction with 1 (one) year imprisonment, in application of the Article 406 as provided in the Code of Criminal Procedure reduces 1/3 of the sentence and the final sentence for the defendant Vladimir Jonuzi is 8 (eight) months imprisonment.
The convicted: Agim Hajdari 42 years old (never convicted before)
Type of theft: 2 truck tires of the company where he worked he had sold with the value of 20.000 ALL.From the expert evaluation act dated 30/04/2013 is concluded that:”The value of the damage caused is 30.000 ALL”
Prosecutor: Asks his sentence with a 105.000 ALL fine and sugests to the judge the aplication of the Article 406 of the Code of Criminal Procedures for abreviated trial.
Lawyer or defendant: Asks a slight sentence.
Judge: Decides his sentence with a 105.000 ALL fine while with abreviated trial the sentence is reduced up to 1/3 and the final sentence for the defendant Agim Hajdari is a 70.000 ALL fine.
The convicted:Marjeta Hasanaj 29 years old (never convicted before)
Type of theft: A personal bag and 20.000 ALL which belonged to a citizen in the hospital of Tirana QSUT.The total value was about 30.000 ALL
Prosecutor:Asked her sentence with a 200.000 ALL fine
Lawyer or defendant: A slighter fine sentence than what prosecutor asked
Judge: Decided the punishment of the defendant with a 180.000 ALL fine, in application of the Article 406 as provided in the Code of Criminal Procedure reduces 1/3 of the sentence and the final sentence for the defendant Marjeta Hasanaj is 120.000 ALL fine.
The convicted: Durim Shabani 47 years old (never convicted before)
Type of theft: A mobile type “ Nokia E63” theft commited in a bus
Prosecutor: Asked his sentence with 1 (one) year imprisonment.In application of the Article 59 of the Code is suspendet the execution of the sentence probation with 2 (two) years imprisonment.
Lawyer or defendant: A slighter sentence than what prosecutor asked.
Jugde: Decided the sentence of the convicted with 3 (three) months imprisonment, in application of the Article 406 as provided in the Code of Criminal Procedure reduces 1/3 of the sentence and the final sentence for the defendant Durim Shabani is 2 (two) months imprisonment.In application of Article 59 of the Criminal Code is ordered the suspension of the imprisonment sentence execution putting the defendant Durim Shabani on probation,for a period of 18 (eighteen) months.
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