New Penal Code softens corruption penalties for high-ranking officials

The experts who, according to the government, drafted the new Penal Code have merged into a single criminal offense the act of corruption committed by lower-level officials and that by high-ranking state officials or elected local representatives. This move has effectively resulted in a reduction of penalties for the latter, and the implications regarding the statute of limitations suggest that some officials currently under indictment could potentially be amnestied.

High-ranking officials currently under investigation for corruption, such as former Prime Minister Sali Berisha, former President Ilir Meta, or the Mayor of Tirana, Erion Veliaj are expected to benefit from significantly reduced sentences if the proposed new Penal Code, presented by the government as the "work of experts," is approved by parliament assuming they are not acquitted during trial.

The drafters of the new Penal Code, who have yet to publicly defend their work, appear to have combined into a single article what are currently two separate offenses in the existing code, both referring to passive corruption by officials.

Under the current Penal Code, Article 259 punishes bribery of ordinary public officials with 2 to 8 years in prison, while Article 260 punishes corruption by high-level state officials or elected local officials with 4 to 12 years. In contrast, the new code proposes a unified sentence for all officials, regardless of rank, of 3 to 8 years in prison.

The reduction of the minimum sentence from 4 to 3 years, and of the maximum from 12 to 8 years, runs counter to the general trend of harsher penalties seen throughout the rest of the proposed code. The draft has already faced criticism for increasing punishments across various offenses without clear reasoning or cost-benefit analysis.

For example, in the current code, offenses such as desecration of state symbols are considered misdemeanors punishable by a fine or up to 3 months in prison. In the new code, however, this offense carries a penalty of up to 4 years in prison, alongside a much broader scope of what constitutes the offense. Despite this general trend toward harsher punishments, criticized by the head of the Bar Association, Maks Haxhia, as "inquisitorial" the drafters of the code have chosen to equalize the treatment of corruption between low- and high-ranking officials, thereby reducing the maximum sentence.

A de facto amnesty?

The Penal Code of a country not only defines criminal offenses and misdemeanors but also contains the principle that no crime should be prosecuted or punished beyond a reasonable period from the time it was committed. This is known as the statute of limitations. The time limit depends on the severity of the offense: the more serious the crime, the longer the statute of limitations. For example, crimes against humanity or war crimes are not subject to a statute of limitations and can be prosecuted regardless of how much time has passed, provided the suspect is still alive.

By lowering the penalty for corruption committed by high-ranking officials through equating their crimes with those of lower-ranking ones, the statute of limitations for these offenses is also effectively shortened. This suggests that some high-ranking officials currently under indictment may no longer be prosecuted if the new code is applied retroactively.

Under the current Penal Code, Article 66 specifies that for offenses punishable by no less than 10 years in prison, the statute of limitations is 20 years. For those punishable by between 5 and 10 years, the limitation is 10 years. The new draft code doesn’t change much in this regard, aside from formatting. According to Article 185, point (c): “Ten years for crimes punishable by more than five and up to ten years in prison.”

Consequently, any corrupt act committed before 2015 would fall under the statute of limitations and be considered expired under the new code.

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