Interception of communications for criminal purposes in Albania and compliance with European Union standards

Abstract

This paper makes an outline of the main safeguards elaborated at European level in 
addressing cases of interferences made by public authorities into private 
communications for the purposes of crime prevention and the protection of public 
order. The aim is to confront the European standards on the subject matter with 
the respective regulation in the Albanian legal framework and practice, and the 
compliance of the domestic approach with the recommendations of the European 
Community.  
Interception techniques have been used since the invention of the first distant 
communication means, providing useful information in criminal investigations. The 
intercepted data play a crucial role on crime prevention, protection of national 
security and discovery of the truth in criminal matters. However, the means used in 
the fight against crime must be in line with, protect and not contradict the 
fundamental values of a democratic society. Such interference should be justified 
not only in terms of its legal grounds but also in terms of its legitimacy. In this 
respect, the paper provides an insight into the relevant legal reasoning of the 
European Court of Human Rights on such matters, identifying case by case whether there has been an interference in the right of the secrecy of communications; if the 
interference was in accordance with the law; if it pursued a legitimate aim; and 
whether it was necessary in a democratic society.  
Further, the paper addresses problems noted in the Albanian legislation on 
interceptions and provides recommendations on the necessary amendments that 
would ensure individual’s fundamental rights and freedoms against arbitrary use of 
state power, through secret surveillance measures. The main thematic issues and 
views are addressed by making constant reference to the relevant case law of the 
ECtHR and European Court of Justice. Special attention is paid to the fact that the 
Albanian High Court (AHC) does not have a clear standpoint regarding the legal 
value of interception results obtained using secret surveillance measures. 
Inconsistencies and double standards in the Unifying Practice of AHC, when 
referring to relevant ECtHR case law, constitute an additional argument for 
supporting the national judicial decisions.  
The paper tries to present, through ECtHR case law and interpretations, its 
approach on the subject matter and the set of surrounding circumstances in which 
they might be applied. 
Finally, the paper focuses on the regime provided under the EU Data Retention 
Directive (2006/24/EC) regarding retention of communications traffic data for 
criminal purposes and its impact in the Albanian law on electronic communications. 
Several questions are raised on the future of domestic regulations on this matter, 
considering that the Directive has been declared invalid by the Court of Justice of 
the European Union.