Optime https://albanica.al/index.php/optime en-US optime@albanianuniversity.edu.al (Erda Qorri) admin@albanica.al (Suporti) Mon, 07 Feb 2022 03:11:17 -0500 OJS http://blogs.law.harvard.edu/tech/rss 60 Prevenzione e percezione di fenomeni corruttivi: istanze di difesa sociale e crisi del garantismo processuale penale https://albanica.al/index.php/optime/article/view/373 <p>Constitutions and the International Charters of Rights are concerned to ensure the judicial verification of the unlawfulness of facts in compliance with the inalienable rights of the person and the presumption of innocence. Today, modern criminal procedural law, which has always been conditioned by different legal traditions, by different political-constitutional approaches and by the current "criminal emergencies", suffers further stress resulting from political and media communication on topics such as organized crime, terrorism and corruption, thus diverting the analysis from objective data and basing the discussion on questionable and instrumental evaluations. In this context, the demands of justice do not coincide with those of legality, but with those of social defense. In Italy, the disproportionate increase in anti-corruption measures has profoundly changed the procedural means of their assessment, with a clear danger for the rights of suspects and/or accused persons and with a consequent dangerous inquisitorial drift. At the international level, however, new and better measures are being tested. The long-term goal is to identify objective criteria in order to measure corruption in each country, using real-time data. Only objective indicators will make it possible<br>to conduct investigations that "measure" the corruption in countries in order to initiate more incisive actions to combat it.</p> Gaspare Dalia Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/373 Sun, 06 Feb 2022 00:00:00 -0500 Back to the basics: election integrity as a eu accession criteria for the western balkan countries https://albanica.al/index.php/optime/article/view/375 <p>The Global Commission on Election, Democracy and Security defines election integrity as “election that is based on the democratic principles of universal suffrage and political equality as reflected in international standards and agreements, and is professional, impartial, and transparent in its preparation and administration throughout the electoral cycle”. Elections with integrity are the key<br>to preserving stability, peace and security not only at a national, but also at European level. The perspectives of the EU integration of the Western Balkans have been continuously viewed through the lens of the European security and stability. From the viewpoint of election integrity, the 1993 Copenhagen accession criteria require from the candidate countries to achieve stability of institutions<br>guaranteeing democracy and the rule of law. The Western Balkan countries are experiencing a long-time struggle to satisfy the said EU democratic criteria. The paper aims to shed light on the 1993 Copenhagen criteria with respect to the obligation to conduct elections with integrity and discusses the EU support modalities for ensuring election integrity in the Western Balkans, as well as<br>synergies created with other regional organizations in this regard. The paper concludes that regardless of the EU integration perspective of the Western Balkan countries, the citizens of the region deserve elections with integrity comparable to those of the EU countries.</p> Jasmina Dimitrieva Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/375 Sun, 06 Feb 2022 00:00:00 -0500 Beyond mutual recognition: the rules of joint investigation teams https://albanica.al/index.php/optime/article/view/378 <p>The “Joint Investigation Teams” (JITs) are a new and effective tool for cooperation in criminal matters, based on a “spirit of solidarity” in carrying out cross-borders criminal investigations: synergistic forms of cooperation between both judicial and<br>police authorities of the different Member States (or even non-EU Countries, if there are legal bases), which coordinate their actions and share the results obtained. JITs constitute an unprecedented form of judicial assistance: “non-rogatorial”, “hybrid”, “operational” and “self-sufficient” from an organizational point of view. Based on an agreement between competent authorities – both judicial (judges, prosecutors, investigative judges) and law enforcement – of two or more States, JITs are established for a limited duration and for a specific purpose, to carry out criminal investigation in one or more of the involved States. Despite the many advantages, the critical issues are not few: the balance between fight against international crime and right of defense; the lack of proper measures to approximate EU Member State’s criminal law and the resulting problem of admissibility of evidence collected abroad in the national trial; the interactions with other new cooperation tools, (MAE, EIO, etc.), with respect to which JITs can often act as an initial mechanism for an investigative activity that can be developed more widely.</p> Rosa Maria Geraci Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/378 Sun, 06 Feb 2022 00:00:00 -0500 Monitoring the debate on the new pact on migration and asylum https://albanica.al/index.php/optime/article/view/371 <p>The New Pact on Migration and Asylum presented by the European Commission on 23 September 2020 aimes at representing a new start with regard to the whole of issues related to the management of the challenges posed by migrants, refugees and asylum seekers arriving in the European Union. High expectations were raised that the reform would truly address the pressing questions that are high on the political agenda in many European countries. The New Pact has provoked a controversial debate. International organizations, European institutions, Member States, civil society organizations, academics have commented the complex package of policies and legislative proposals. One of the most conflictive issues regard the external dimension in the migration and asylum fields. Some observers, in particular Governments and the Council, deem that the cooperation with third countries of origin and of transit or first safe haven represents an essential aspect of solution, having regard to the “success” of the agreements with Turkey and Libya in terms of the reduction of arrivals from these countries. Others are most critical with respect to the “externalization” of responsibilities and of the control of external borders. Another conflictive issue is the reform of the “Dublin” system, addressed in the Pact as part of the Regulation on Migration and Asylum Management. The Mediterranean Member States oppose the continuing attribution of responsibility for asylum seekers to countries of first arrival and the insufficient solidarity mechanisms. Other Member States refuse any obligation of accepting asylum seekers relocated from other Member States. For the time being, no solution is in sight to overcome these divergencies.</p> Christopher Hein Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/371 Sun, 06 Feb 2022 00:00:00 -0500 Liberal democracy: absolutist eu rule of law conditionality or pluralistic bargaining chip? https://albanica.al/index.php/optime/article/view/369 <p>EU membership accentuates values. The current emphasis is a case of EU idealism, of stricter conditionality in response to political ideology and governance. Democracy is tantamount to liberal democracy, but at the same time pluralism is an integral part of the conditionality. This raises the question about the countryspecific maneuvering scope or – if EU candidate countries and Member States (are seen to) deviate from a non-negotiable ideal – inappropriate manipulation. While the authors do not address absolutism per se, they proceed on the premise that the “European perspective” disallows any value dilution, thereby maximizing the<br>conflict and identity crisis which Poland and Hungary have caused and which have overshadowed accession talks for candidate countries. One intention is to contextualize the debate and dispute about values by incorporating interdisciplinary insights. Another is to challenge the (European perspective on the) rule of law cluster, inter alia, with the illiberal measures that Denmark has adopted.</p> Anja Matwijkiw, Bronik Matwijkiw Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/369 Sun, 06 Feb 2022 00:00:00 -0500 Anti-corruption and anti-money laundering: criminal networks and prevention models compared https://albanica.al/index.php/optime/article/view/376 <p>This paper aims to examine the phenomena of corruption and money laundering, outlining the relationship of “continuity” running between them. The analysis presented here focuses on the evolution of modern criminal networks and their methods in recent years. The results highlight the points of convergence between the prevention models compared here (anti-corruption and anti-recycling) and the importance of redressing the information imbalance underlying the asymmetry between the State and organised crime. From this point of view, judicial support and internal control systems are indispensable tools in the fight against transnational crime.</p> Marco Naddeo Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/376 Sun, 06 Feb 2022 00:00:00 -0500 Rule of law e standards etici degli international prosecutors https://albanica.al/index.php/optime/article/view/368 <p>The normative and jurisprudential framework of the ethical guidelines for international prosecutors, affirms their central role in criminal proceedings, aimed at protecting society from a culture of impunity, and functioning “as gatekeepers to the judiciary”.<br>Since they are invested with the authority and responsibility to decide on issues fundamental to the administration of criminal justice, i.e., prosecution of the most serious crimes that shock the conscience of humanity, the task of international prosecutors carries great responsibility, requiring them to seek justice and respect certain deontological obligations. In this perspective, the judicial function of monitoring prosecutorial discretion to investigate and prosecute ensures that the central role of international prosecutors in criminal justice is enacted in accordance with the highest ethical standards and<br>&nbsp;in the best interests of justice.</p> Anna Oriolo Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/368 Sat, 05 Feb 2022 00:00:00 -0500 The balkan migrant route: a eu unresolved crisis? https://albanica.al/index.php/optime/article/view/380 <p>This article aims to underline how the Western Balkans are an area of fundamental geo-strategic interest for the security inside and outside Europe. Its geostrategic importance was even more evident when, since 2015, the Western Balkans have<br>been crossed by one of the most impressive migratory routes to Europe, the socalled “Balkan route”, showing the political instability of both the region and the EU. The massive flow of asylum seekers led the EU institutions to recognize in April 2015 the exceptional nature of the situation, calling unsuccessfully for the adoption of solidarity measures to overcome the catastrophic humanitarian situation in the so-called "frontline Member States". In this framework, the article intends to briefly investigate the limits of the existing regulatory framework, which was unable to offer an adequate response to such a situation, as well as of the proposals of the EU Pact on migration of asylum in order to find a solution to a crisis that is not only a migration crisis, but a deeper crisis of identity that is struggling to balance the coexisting interests of the EU legal system.</p> Teresa Russo Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/380 Sun, 06 Feb 2022 00:00:00 -0500 Dalla giurisdizione della corte suprema alla competenza del tribunale speciale: la sfida del sistema giudiziario albanese contro la corruzione ad alto livello governativo https://albanica.al/index.php/optime/article/view/374 <p>The Constitution of the Republic of Albania, adopted in 1998, provided that the Supreme Court had primary and cassation jurisdiction. Primary jurisdiction referred to the obligation attributed to this Court to judge at first instance, the most important figures of the political and judicial power. Although there is a perception of the corruption of the subjects of this jurisdiction, which was an exception to the right of the second instance court of law, the Supreme Court had not shown itself to be independent in the judicial processes of high-level officials. In 2016, when the constitutional reform of the judicial system in Albania was adopted, the provision that created hope for the fight against corruption at high levels of government was the establishment of the Special Tribunal against corruption and organized crime and the Special Investigative Structure (SPAK). The latter is required by the constitutional reform to independently investigate senior state officials, unlike what the Attorney General had done before the reform. The implementation of the reform, in this respect, is ongoing, however, yet has not been presented an outcome of the judicial reform, but what deserves attention is an analysis of the expectations of the Special Court, unlike the jurisdiction of the first instance of the Supreme Court. The question that arises is whether this constitutional change will transform the approach of the judicial system or will it remain yet another reform written on paper. The doubts, in this context, arise from the fact that five years have passed since the reform started and the challenge of defeating corruption and strengthening the rule of law still remains an illusion that it is expected to turn into delusion.</p> Ismail Tafani Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/374 Sun, 06 Feb 2022 00:00:00 -0500 Emigrantët dhe emigracionet në partnertetin e përtërirë euro-mesdhetar: një drejtim i re për BE-në? https://albanica.al/index.php/optime/article/view/366 <p>Me rastin e 25 vjetorit të nënshkrimit të Deklaratës së Barcelonës, Bashkimi evropian po përgatitet të përfundojë një partneritet të rinovuar me vendet e bregut jugor të Detit Mesdhe, i cili përbëhet nga pesë pika kyçe: zhvillimi njerëzor, qeverisja e mirë dhe sundimi i shtetit të së drejtës, të drejtat e njeriut: rinovimi i përkushtimit të përbashkët për demokracinë, shtetin e së drejtës, të drejtat e njeriut dhe qeverisjen e përgjegjshme; elasticiteti, prosperiteti dhe tranzicioni digjital: mbështetja e ekonomive elastike, gjithëpërfshirëse dhe të lidhura që krijojnë mundësi për të gjithë, veçanërisht gratë dhe të rinjtë; paqja dhe siguria: ofrimi i mbështetjes për vendet për të adresuar sfidat e sigurisë dhe për të gjetur zgjidhje për konfliktet e vazhdueshme; migrimi dhe<br>lëvizshmëria: adresojnë së bashku sfidat e zhvendosjes së detyruar dhe migrimit të parregullt dhe lehtësojnë rrugë të sigurta dhe ligjore për migrimin dhe lëvizshmërinë; tranzicioni i gjelbër: elasticiteti i klimës, energjia dhe mjedisi. elasticiteti klimatik, energjia dhe mjedisi. Mbrojtja e burimeve natyrore të rajonit dhe gjenerimi i rritjes së sipërfaqeve të gjelbra duke shfrytëzuar potencialin e një të ardhmeje me mbetje karboni të reduktuara. Ndonëse kjo nismë është për t'u vlerësuar për iniciativat e shumta që parashikon dhe mbi të gjitha për marrjen në konsideratë të qenies njerëzore si prioritet në realizimin e objektivave ekonomike, do të duhet të verifikohet konkretisht nëse objektivat e vendosura mund të arrihen duke marrë parasysh vështirësitë e shumta që kanë karakterizuar gjithmonë territoret e vendeve të Afrikës Veriore dhe të Lindjes së Mesme të përfshira në këtë nismë, veçanërisht në lidhje me problemin e migracionit dhe mbrojtjen e të drejtave të njeriut. Cilat janë pikat e forta dhe mundësitë reale të suksesit të kësaj nisme?</p> Alessandro Tomaselli Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/366 Sat, 05 Feb 2022 00:00:00 -0500 Asset recovery: nuova enfasi da parte delle nazioni unite nella lotta alla corruzione https://albanica.al/index.php/optime/article/view/379 <p>The United Nations are long-term active in the fight against corruption, a phenomenon troubling developed and undeveloped nations alike. Quite recently, through GA Resolution no. 75/194, asset recovery eventually gained new momentum, with a series of recommendations towards the UN Member States. Hence, this article serves the double purpose to look into said Resolution in the first place, highlighting what’s new and, on the contrary, what can be considered an inheritance from previous attempts addressing the matter; secondly, to discern whether and where the measures auspicated by the General Assembly are already in place, and in what degree of implementation. In particular, the article aims at laying emphasis on the many differences between the attitude of the involved countries and regional organizations.</p> Stefano Busillo Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/379 Sun, 06 Feb 2022 00:00:00 -0500 Cybercrime regulations: need for a new international approach? https://albanica.al/index.php/optime/article/view/377 <p>Cybercrimes, cyber terrorism and cyber war are the pandemic of the 21st century. This problem existed before, but lately they have spread with a rapid speed, and have modified from their basic appearance, which makes them difficult to follow. The purpose of this paper is to show the need for a cyber convention of a new kind, and to explain the need for better international legal framework. The paper is “dealing “first with the European Convention of Cybercrime and its use. Also having in mind that the cyber field is not only consisted from cybercrimes/ offences but also with cyber terrorism and cyber wars, the second part of the paper is<br>dedicated to the need of a new Digital convention. The last part is giving a brief overlook of the Macedonian legislation considering the cybercrimes.</p> Natasa Doneva Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/377 Sun, 06 Feb 2022 00:00:00 -0500 La lotta alla corruzione in ambito “regionale”: il gruppo di stati contro la corruzione (GRECO) https://albanica.al/index.php/optime/article/view/372 <p>The article aims to retrace the role of the Council of Europe (CoE) in the fight against corruption. The analysis focuses on the institution of the Group of States against Corruption (GRECO), mandated to monitoring and evaluating the implementation of CoE instruments in subiecta materia, according to the standards contained in it, through the peer review evaluation mechanism. A particular attention will be pledge to the corruption risks linked to the public health emergencies, in the light of the recent GRECO guidelines on preventing and managing corruption in the context of COVID-19 pandemic.</p> Emanuele Vannata Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/372 Sun, 06 Feb 2022 00:00:00 -0500 Krimigracioni: drejt një forme të re diskriminimi? https://albanica.al/index.php/optime/article/view/367 <p>The paper deals with the theme of immigration from the point of view of the application of criminal sanctions as a result of the violation of the rules governing it. The analysis begins with the demonstration of the inadequacy of the system of<br>reception of migrants prepared by the European Union (Dublin Regulation), with the critical issues related to its effectiveness within the national legal systems and the configuration of a legislation that does not take into account the different<br>organizational and economic capacities of the States. It then goes on to define the phenomenon of crimmigration, focusing on the use of coercive measures, especially detention, highlighting its massive and systematic use. The text carefully concentrates on the negative effects of detention, and on the living conditions forced upon migrants during the period of restriction as well, in an effort to determine the violation of fundamental human rights, by underlining the lack of a proper distinction between irregular migrants and asylum seekers. Some practical cases are also examined in order to clarify and exemplify the thesis put forward. All of<br>this is done by emphasising the discriminatory drifts of the policy of rejection and repression adopted by European states. In conclusion, the author provides personal views on the issues addressed and a possible resolution of the problems encountered.</p> Andrea Memoli Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/367 Sat, 05 Feb 2022 00:00:00 -0500 The right to asylum in Albania and policies against illegal migration https://albanica.al/index.php/optime/article/view/370 <p>The right to asylum in Albania is part of the fundamental human rights and freedoms sanctioned in the Constitution of Albania and the domestic legislation. Starting from the dark communist period of human rights in Albania, until today, the right to asylum has evolved continuously. This article will focus on an analysis of the right to asylum in the international legal framework and particularly in Albania, taking it along its development and focusing on the current sanctioning in the legislation of this right. The paper will shed light on the development of the right to asylum in the Albanian legislation, by analysing the dimensions of this right from the international and domestic legislation. For more, the treatment of asylum seekers has become an increasingly frequent subject of treatment by the European Court of Human Rights, during the implementation of the European Convention on Human Rights. The analyses of the European Court of Human Rights will help to understand the international obligations / standards in the field of asylum in Albania. In conclusion, the article will highlight the approach of the right to asylum provided in the Albanian legislation in the framework of its approximation with the internationally recognized standards.</p> Artela Roshi Copyright (c) 2021 Albanian University https://www.albanianuniversity.edu.al/ https://albanica.al/index.php/optime/article/view/370 Sun, 06 Feb 2022 00:00:00 -0500