Albania 1998 Constitution (reviewed 2016)

PART TEN. PROSECUTION OFFICE

Article 148

1. The Prosecution Office exercises criminal prosecution and represents accusation in court on behalf of the state. The Prosecution Office performs other duties in accordance with the law.
2. The Prosecution Office is an independent body, which shall ensure the coordination and control of its actions as well as respects the internal independence of prosecutors to investigate and prosecute, in accordance with the law.
3. The prosecution is organized and functions near the judiciary system.
4. A Special Prosecution Office, which is independent from the Prosecutor General, and an independent investigation unit, shall investigate and prosecute corruption, organized crime and crimes in accordance with article 135 paragraph 2 of the Constitution. The independent investigation unit shall be subordinate to the Special Prosecution Office.

Article 148-a

1. The Prosecutor General is appointed by three-fifths of the members of Assembly among three candidates proposed by the High Prosecutorial Council, for a seven-year, non-renewable mandate.
2. The High Prosecutorial Council shall select and rank the three most qualified candidates, based on an open and transparent procedure and forwards them to the Assembly, in accordance with the law.
3. The Prosecutor General shall be selected among highly qualified jurists, with no less than 15 years of professional experience as jurists, of high moral and professional integrity, that have graduated from the School of Magistrates or academic degree in law. He or she shall not have held a political post in the public administration or a leadership position in a political party in the last past 10 years before becoming candidate.
4. If the Assembly cannot elect the Prosecutor General within 30 days of receiving the proposals from the High Prosecutorial Council, the highest ranking candidate is automatically appointed.
5. After the end of the mandate and upon his or her request, the Prosecutor General shall be appointed in the position he or she held before the appointment or as judge in the Court of Appeal.

Article 148-b

The Prosecutor General exercises these powers:

1. represents accusation in the High Court and cases before the Constitutional Court, unless represented by prosecutors of the Special Prosecution Office;
2. issues only written general guidance to prosecutors, with the exception of prosecutors of the Special Prosecution Office;
3. manages the Prosecution Office administration, with the exception of the administration of the Special Prosecution Office. The establishment and management of the information technology structure is regulated upon decision of the Council of Ministers;
4. proposes and administers the budget of the Prosecution Office with the exception of the budget for the Special Prosecution Office;
5. reports to the Assembly on the situation of criminality;
6. exercises other powers defined by law.

Article 148-c

1. The mandate of the Prosecutor General ends when:
   1. reaches the retirement age;
   2. expiry of the 7 year mandate;
   3. his or her resignation;
   4. dismissal according to a procedure provided in article 149-c;
   5. establishing the conditions of inelectibility and incompatibility;
   6. establishing the incapacity to exercise the duties;
2. The termination of the mandate of the Prosecutor General is declared by decision of the High Prosecutorial Council.

Article 148ç

1. Prosecutors are Albanian citizens appointed by the High Prosecutorial Council after finishing the School of Magistrates and after a passing an evaluation of their assets and their background in accordance with the law.
2. Further criteria for the selection and appointment of prosecutors are regulated by law.

Article 148-d

1. The prosecutor shall be disciplinarily liable in accordance with the law.
2. The prosecutor shall be dismissed upon decision of the High Prosecutorial Council when he or she:
   1. commits serious professional or ethical misconduct which discredits the figure and the position of the prosecutor during the exercise of his or her duties; or
   2. is convicted with final court decision for commission of a crime.
3. Against the dismissal decision, appeal can be filed at the Constitutional Court.
4. The prosecutor is suspended from its duty upon decision of the High Prosecutorial Council when:
   1. against him or her the personal security measure of predetention or home arrest is given for commission of a criminal offence; or
   2. he or she is accused for a serious crime committed with intention;
   3. upon initiation of the disciplinary proceedings in accordance with the law.

Article 148-dh

1. The Special Prosecution Office exercises criminal prosecution and represents accusation in the specialized courts under article 135 paragraph 2 of the Constitution as well as the High Court.
2. The High Prosecutorial Council shall assign at least 10 prosecutors to the Special Prosecution Office for a 9-year mandate, without the right to re-appointment. Further criteria for the selection of the prosecutors as well as the transparent and open procedure are regulated by law.
3. The Chief Special Prosecutor shall be elected by a majority of the High Prosecutorial Council from the ranks of Special Prosecutors for a three-year term, without the right to re-appointment, in accordance with the law.
4. The special prosecutor may only be removed from the office before their mandate ends in cases of serious misconduct or for commission of a crime with a 2/3 majority of the High Prosecutorial Council.
5. The candidate to be special prosecutors, personnel in the Special Prosecution Office and independent investigation unit, as well as their close family members, prior to their appointment, must successfully pass a review of their assets and their background and shall consent to periodic reviews of their financial accounts and personal telecommunications, in accordance with the law.

Article 149

1. The High Prosecutorial Council shall guarantee the independence, accountability, discipline, status and career of Prosecutors in the Republic of Albania.
2. The High Prosecutorial Council shall be composed of 11 members, six of which are elected by the prosecutors of all levels of the Prosecution Office and five members are elected by the Assembly among jurists who are non-prosecutors.
3. The prosecutor members shall be selected from prosecutors of high moral and professional integrity in accordance with an open and transparent procedure that ensures a fair representation of all levels of the prosecution system. The lay member shall be selected among highly qualified jurist, with no less than 15 years of professional experience, of high moral and professional integrity. The lay member shall not have held a political post in the public administration or a leadership position in a political party in the last past 10 years before becoming candidate. Further criteria and the procedure for selecting and ranking the candidates are provided by law.
4. Two lay members shall be elected from the advocates, two from the corps of law professors and the School of Magistrates and one shall be from civil society. The Secretary General of the Assembly, based on an open call and transparent procedure, shall announce the vacancies in accordance with the law.
5. The Secretary General of the Assembly, not later than 10 days from the presentation of the applications, shall verify if the candidates fulfill the criteria foreseen in the Constitution and the law and assess the professional and moral criteria to be a member of the High Prosecutorial Council. In case the candidates do not fulfill the criteria to be elected, the Secretary General of the Assembly deletes candidates from the list.
6. The Secretary General of the Assembly, upon completions of the verification sends immediately to the parliamentary committee under paragraph 7 of this article the list of candidates who fulfill the formal criteria.
7. The parliamentary committee responsible for legal issues establishes a subcommittee for the further assessment and selection of candidates not later than three days from the submission of the list. The subcommittee is composed of five members of the Assembly, three members nominated by the parliamentary majority and two by the opposition. The subcommittee may with at least four votes include a candidate who was previously removed from the list by the Secretary General of the Assembly. The subcommittee selects the candidates supported by 4 members. In case the majority cannot be reached the candidate shall be selected by lot.
8. The selections from the subcommittee are consolidated into one list and sent to the Chairman of the Assembly. Within ten days, the Assembly may reject the entire list of candidates as a block by a majority of two-thirds. If the list is rejected, the procedure shall be repeated by the subcommittee under paragraph 7 of this article, no more than two times. If the Assembly after the competition of the procedure for the third time, has not approved the presented list, the candidates of this list shall be deemed elected. Detailed procedures shall be regulated by law.
9. The Chairperson of the High Prosecutorial Council is elected by its members from the ranks of the lay members in accordance with the law.
10. Members of the High Prosecutorial Council shall practice their duty full-time for a period of five years without the right of immediate re-appointment. At the end of the term, the prosecutor members return to their previous working positions. The mandate of the special prosecutor shall be suspended during the period of time of the exercise of the duties as member of High Prosecutorial Council. The lay members who before the appointment worked full time in the public sector shall return to the previous working positions or, if not possible, to positions equivalent to them.

Article 149-a

1. The High Prosecutorial Council shall exercise the following powers:
   1. appoints, evaluates, promotes and transfers all prosecutors of all levels;
   2. decides on disciplinary measures against all prosecutors of all levels;
   3. proposes to the Assembly candidates for Prosecutor General in accordance with the law;
   4. adopts rules of ethics for prosecutors and supervises their observance;
   5. proposes and administers its own budget;
   6. informs the public and the Assembly on the state of the Prosecution Office; and
   7. exercises other responsibilities as regulated by law.
2. The law shall provide for the establishment of decision-making sub-bodies of the High Prosecutorial Council.

Article 149-b

1. The mandate of the member of the High Prosecutorial Council shall end upon:
   1. reaching the retirement age;
   2. expiry of the 5 year mandate;
   3. his or her resignation;
   4. dismissal according to the provisions of article 149-c;
   5. establishing the conditions of inelectibility and incompatibility;
   6. establishing the incapacity to exercise the duties;
2. The expiry of the mandate of the member shall be declared upon a decision of the High Prosecutorial Council.
3. Where the position of the member remains vacant, the body having appointed the preceding member, shall under Article 149, appoint the new member, the latter staying in office until the expiry of the member of the outgoing member.
4. The member shall continue to stay in office until the appointment of the successor, except under cases provided in subparagraph c), ç), d) and dh) of paragraph 1 of this article.

Article 149-c

1. The Prosecutor General and member of the High Prosecutorial Council shall be disciplinarily liable in accordance with the law.
2. The Prosecutor General and member shall be dismissed upon decision of the Constitutional Court if he or she:
   1. commits serious professional or ethical misconduct;
   2. is convicted with final court decision for commission of a crime.
3. The Prosecutor General and member is suspended from its duty upon decision of the Constitutional Court when:
   1. against him or her the personal security measure of predetention or home arrest is given for commission of a criminal offence; or
   2. he or she is accused for a serious crime committed with intention.
   3. upon initiation of the disciplinary proceedings in accordance with the law.

Article 149ç

Being Prosecutor General, prosecutor or a member of the High Prosecutorial Council shall not be compatible with any other political, state as well as any other compensated professional activity, except for teaching, academic, and scientific activities in accordance with the law.

Article 149-d

1. The Justice Appointments Council is responsible for verifying the fulfillment of legal requirements and assessment of professional and moral criteria of the candidates for the High Justice Inspector, as well as for the members of the Constitutional Court. The Justice Appointments Council examines and ranks the candidates according to their professional merits. The ranking is not binding except when the Assembly fails to make an appointment.
2. The Justice Appointments Council meets whenever it is necessary.
3. The Justice Appointments Council shall consist of nine members selected by lot from the ranks of judges and prosecutors who are not under disciplinary measures, who shall serve a one-year term beginning on January 1 each year. Between December 1 and December 5 of each year, the President shall select by lot two judges of the Constitutional Court, one judge of the High Court, one prosecutor from the Office of the Prosecutor General, two judges and two prosecutors from the Courts of Appeal and one judge from the Administrative Courts. If the President does not make this selection by December 5, the Chairperson of the Assembly shall make the selection by lot before December 10 of the year. The Ombudsperson shall serve as an observer of the selection by lot of the Justice Appointment Council, as well as its meetings and operations.
4. The member from the High Court is Chairperson of the Justice Appointments Council. The High Court creates working conditions for the operation of the Justice Appointments Council.
5. Further qualification criteria of the scale of qualification of candidates participating in the lot and the organization and functioning of the Justice Appointments Council are regulated by law.