Taking of evidence


Albania - Criminal Procedure Code 1995 (2017) EN

Article 30 Judicial police functions
1. Judicial police must also ex officio, get notice of criminal offences, prevent further consequences, search for their authors, conduct investigations and gather everything that serves the application of the criminal law.
2. Judicial police conducts every investigative action that has been ordered or delegated by the prosecutor.

Article 188 Collection of material evidence
1. Material evidence shall be described in detail in the minutes, and where possible photographed or video recorded and, with the order of the proceeding authority, is included into the judicial file.

Article 189 Preservation of material evidence
1. The Material evidence which due to its perishable nature, if it is not possible to return to their possessors, shall be delivered to certain entities which are obliged to return them in the same state or return their corresponding value.

Article 190 Rulings on material evidence
In its final decision or decision for terminating the case, the court or the prosecution office shall also rule about what should be done with the material evidence, by ordering:
a) items which have served or were defined as a tool for committing a criminal offence as well as the items constituting proceeds or compensation given or promised for its commission shall be taken over and transferred to the state, except for cases where they belong to persons who have not been involved in the commission of the criminal offence;
b) items whose possession or circulation is prohibited shall be delivered to the relevant entities or shall be destroyed;
c) items which do not have any value shall be destroyed;
d) other items shall be returned to the persons they belong to and, where a dispute exists regarding their ownership, they shall be kept until that issue is resolved by the court.
The physical evidence may also be returned to the persons whom they belonged prior to the conclusion of the proceedings, provided this does not jeopardise the solution of the case.

Article 201/a Forced taking of biological samples or conducting forced medical procedures
1. Forced taking of biological samples from the defendant or any other persons, or forced medical procedures shall take place only pursuant to the provisions of this Article.
2. The prosecutor may, after obtaining the consent of the defendant or other persons, seek taking of biological samples to the effect of establishing the DNA profile. The same provision shall be implemented for the accomplishment of the medical procedure.
3. The consent of the person shall be provided in writing. The person who is going to be taken the sample or subject to a medical procedure shall sign a statement before the prosecutor, that he grants the consent and confirming that he has been notified with regard to the reason the biological samples being taken or the medical procedure being conducted.
4. For the minor, the consent shall be provided by the parent or the legal guardian.
5. Based on the request of the prosecutor, the court may decide that the taking of biological samples or the medical procedure be conducted without the consent of the person, if it is necessary, and by way of restricting his/her freedom, if health is not impaired and if it is indispensable for proving facts in the proceedings. No medical procedures can be conducted if
they pose a risk to the life of the person, his/her physical integrity and health, which may harm the unborn child or, pursuant to the medical protocols, may cause unjustified pain.
6. The court decision on taking the biological sample or the medical procedure shall contain:
a) the personal data of the person subject to the taking of biological sample or to a medical procedure or necessary information for his/her identification;
b) the criminal offence whereof the proceeding has started and a summarised description of the respective facts;
c) a detailed description of the type of biological sample to be taken or of the medical procedure which shall be conducted as well as the reasons why the evidence cannot be taken in another way;
ç) the right of the person being subject to the biological sample taking or other medical procedure to be assisted by a defence lawyer or a person of his/her trust;
d) the venue, date, time and accurate way of taking the biological sample or conducting the other medical procedure;
dh) notification that the person subject to the taking of biological sample or the other medical procedure is obliged to appear and the warning for forced accompaniment, if he does not appear without legitimate reasons;
e) where the defendant or the person having granted the consent for the biological sample taking or medical procedure, the prosecutor shall enclose the written consent to the file.
7. At least three days prior to the taking of biological sample or conduct of medical procedure, the decision provided for in the paragraph 5 of this Article shall be notified to the respective person.
8. When the person being subject to the biological sample taking or to the medical procedure is the defendant or the victim, the decision shall be notified to the defendant, the defence lawyer and the victim. If the person is not the defendant or the victim, the decision shall be notified to the person, the defendant, the victim and his/her defence lawyer. In case the person is a minor, the decision shall be notified to the parents or his/her legal guardian.
9. If the person being subject to the above procedures does not appear at the appropriate venue without legitimate reasons, the prosecutor may immediately request the court to order his/her forced accompaniment and decide taking of sample or accomplishment of the medical procedure. The judicial police shall enforce the court order.
10. In urgent cases, where there is reason to believe that the delay may cause the loss or harm to the authenticity of the evidence, the decision shall be taken by the prosecutor, who may order the forced accompaniment of the person.
11. Within 48 hours of the action being carried out, the prosecutor shall ask the court to validate the orders issued under paragraph 9 of this Article. The court shall validate the prosecutor’s actions, within 48 hours, notifying the prosecutor and the defence lawyer.
12. In the event of taking a biological sample or conducting the medical procedure on the suspect or defendant, the presence of the defence lawyer shall be obligatory.
13. In the event of taking a biological sample or conducting the medical procedure on the minor, the presence of the parent, legal guardian or a person of his/her trust shall be mandatory.
14. The outcome of the biological samples tests or medical procedure taken in defiance of the provisions of this Article are non-usable.

Article 321 Taking of evidence
1. The hearing on The taking of evidence shall be held with the compulsory participation of the prosecutor and defense lawyer of the defendant. The representative of the victim has also the right to participate.
2. The defendant and the victim have the right to participate when a witness or another person must be questioned. In other cases, they may participate with the prior authorisation of the court.
3. Evidence is taken pursuant to rules provided for trial examination, by the same court that will adjudicate the case. Except for cases provided for by Article 321/1, the taking of evidence on facts pertaining to persons who are not represented by defense lawyers in the hearing, is prohibited.
4. The minutes, items and documents obtained to secure evidence, shall be sent to the prosecutor. The defense lawyers have the right to review and make copies of them.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;