Drafting a new Criminal Code is an undertaking that demands vision, prudence, and profound institutional responsibility. It cannot be guided by the logic of wishes or individual or institutional protagonism, nor by momentary or temporary events and objectives, but by the need to create an instrument that will endure over time and support the development of the rule of law for decades. This discussion should not be seen as opposition to reform, but as a call for deep reflection on the direction it is taking, between the aim of updating and the risk of hyper-codification, between politics and the legislative technique. Only through such a well-considered approach can it be ensured that changes are real, sustainable, and in the service of justice, not its rhetoric.

The rapid technological and social developments have transformed the way social and economic relations function, imposing the need for a dynamic legal framework that reflects new realities. In a state governed by the rule of law, the law must evolve with time to guarantee legal order and the effective protection of individual rights and freedoms, without undermining legal certainty and consolidated normative structures.

Without entering the debate on whether the drafting of a New Criminal Code is strictly necessary, a question regarding which I retain some reservations, I consider that the current code can hardly be characterized as wholly unsuitable. Nevertheless, it may require from time to time partial interventions or specific improvements, as has not infrequently happened in the past. This approach constitutes, in itself, the essence of the continental legal system, which is based on the continuous enrichment and refinement of legal provisions. Meanwhile, on the other hand, the initiative to draft a new code cannot be rejected a priori, but to reach such a conclusion, one must first analyze a series of important reasons that would make it possible to conclude that a new code is necessary.

Secondly, I consider that moving from a legislative methodology and technique consolidated over 100 years (since the Criminal Code of the Albanian Kingdom), with a codification manual of around 400–500 articles, toward a draft composed of fragments gathered from several countries, without a clear backbone grounded in the stage of social development, mentality, traditions, customs, and the trend toward decriminalizing as many punishable social behaviors as possible, constitutes a mistaken approach. A draft with around 1,000 articles of a theoretical, commentary like, or exhaustive character will crystallize and complicate magistrates’ decision-making and the application of norms. The effort to explain and give a commentary character to every criminal norm, presuming the good intention of clarifying its application, is destined to fail and even produces the opposite effect. The Criminal Code is not and cannot be an exhaustive compendium of norms, nor is it a commentary or a guide to the application of criminal norms; therefore, we should leave magistrates the necessary discretion to apply the Criminal Code, and leave commentary to lecturers and scholars.

This creates the impression of a hasty zeal, poorly studied and, as a result, unsuitable for today’s Albania and for at least the next 30 years. The wheel has been invented; we should adapt it to the present era, perhaps simply by applying a single model (German, Italian, or French), adapted to Albanian conditions and circumstances. Such an analysis cannot be carried out by political bodies, much less by their appendages, but by professionals in the field, professors of law, domestic and foreign, departments independent from momentary desires or political aims, that is, by criminal-law experts with expertise, independence, and integrity, regardless of the fact that, fundamentally, political will is needed to materialize this into a concrete law. The aim is a Criminal Code that will stand for several decades, while nevertheless being dynamic and susceptible to occasional amendment, just as constitutions are not untouchable, even though they are the highest legal acts.

All the same, the aim of this paper is, given that there is a clear political will for a new code (whether the decision is right or wrong remains to be seen), to put forward some ideas regarding the serious conceptual and substantive problems found in this draft presented to the public by the working group, even though there is no full transparency about who has worked technically on this draft, on particular sections of it, and who are those proposing it.

Considering it of particular importance to take part in the discussions on the Draft New Criminal Code, with respect to Chapter II, Criminal offenses in the customs field (Articles 611–626), I preliminarily set out some thoughts which, if found appropriate, would serve during more in-depth discussions within the framework of amending or redrafting the Criminal Code.

A general review of the provisions on the criminal offenses of smuggling in the New Criminal Code is an important and complex process, closely linked not only to the financial interests of the country and of the parties involved in customs activity, but also to the safety and protection of the lives of people, animals, plants, and the environment as a whole.

On the other hand, it is a fact, and we have emphasized this before, that the issues addressed regarding criminal offenses of smuggling have clearly and fully shown that, among scholars and lawyers as well as the legislator, there is no unity of views and, moreover, there is no shared approach when it comes to the qualification of customs-field crimes, the extent or degree of their inclusion in criminal law and in the Customs Code (currently in the Customs Code Articles 251, 66, 67 and in the Criminal Code in force, Articles 171–179/c), the sanctions to be applied, their distinction from the customs misdemeanor, as well as the criminal liability of responsible persons.

The existence of different opinions and viewpoints has led, and inevitably leads, to non-uniform assessments by the prosecution, defense counsel, and judicial practice. The latter, in certain cases, has resulted in violations of the rights and interests of natural and legal persons, as well as the interests of the state.

On the other hand, the objective element of both violations, smuggling and misdemeanor, differs mainly only in quantitative terms (exceeding a monetary threshold); therefore, alongside the redrafting of the provisions on the criminal offense of smuggling, the corresponding provisions (Articles 266–272 of the Customs Code) should also be adjusted.

Failure to engage in solving these issues, bypassing them even though the 2014 Customs Code (with the exception of matters relating to the customs union of EU Member States) is fully aligned with the UCC, has significantly influenced the drafting of the New Criminal Code and the commitments under the SAA framework to approximate the criminal legislation on smuggling offenses with the Acquis Communautaire, with the objectives for harmonization with customs and criminal law and its doctrine, as well as with application according to European Court standards.

Therefore, it is absolutely necessary that the treatment, especially of criminal offenses of smuggling, be carried out with responsibility and seriousness and with the involvement of qualified specialists in the customs field, subjecting the legal provisions on customs violations beforehand to constructive discussion by as wide a circle as possible of persons from academia in customs criminal law, prosecutors, lawyers, and the judiciary. Meanwhile, the drafting team for the smuggling provisions should have included a customs-field expert in combating customs violations, which would constitute the most important and efficient investment in facing the challenges posed by such an undertaking.

The view that presenting the Draft New Criminal Code, prepared by the group of experts appointed by the Albanian Government, through a public consultation and subsequently in Parliament, will bring the necessary changes and additions, does not hold, also because a structure with weak foundations, no matter how many improvements are made, is destined to collapse unless fundamental changes are enabled. Therefore, any attempt to correct or supplement the provisions, as is being pursued, will not have the necessary effectiveness. Moreover, as has been emphasized by scholars and practitioners in the field, it will represent no more than a rushed undertaking to ensure deep approximation of the provisions on smuggling offenses with those of EU Member States’ legislation. Meanwhile, the product of this “improved” draft would bring greater uncertainty to the anti-smuggling authority within the General Directorate of Customs (DPD), to prosecutors, to the application of provisions on customs violations, and as has happened before, would create premises for entirely different interpretations of them in similar cases.

 

The inclusion of smuggling offenses and sanctions in the Criminal Code requires that the structuring of provisions correspond to the Criminal Code and not be treated as a stand-alone law. Thus, in the draft under discussion, unnecessary provisions are foreseen (Article 611—Definitions and the opportunity/discretion of the Customs Authority). Moreover, the definitions set forth chiefly in Article 6 of the Customs Code should also serve within the provisions on smuggling offenses in the draft Criminal Code. Otherwise, ambiguities and differing interpretations may arise both from the customs authority and from the prosecution and the courts.

In the draft under discussion, unnecessary terms, unnecessary repetitions, and unclear formulations are used, things not acceptable in a law of particular importance such as the Criminal Code and they may also cause misinterpretations of the legal provision itself. Thus, in Article 611, point 4: “…the Customs Authority exercises the opportunity/discretion to request…”; letter (d), point 5: “It is assessed objectively that the case has generally a special public importance…”; point 2 of Article 612: “Release for consumption in the territory of products…”; in Article 625, point 2: “…the court…publication of the judicial decision.” Meanwhile, it is necessary that in many smuggling provisions the subjective element intent be emphasized.

In point 5, letter “d,” regarding customs valuation or goods smuggled, the provision refers only to goods dangerous to human life or health, whereas in customs law, risk includes not only human life and health but also that of animals, plants, and the environment as a whole.

In point 6, initiation ex officio of criminal investigation is foreseen as a special case, whereas this is the statutory duty and competence of the criminal-prosecution authority, etc.

In point 5, letters a–d, the phrase “duty avoided in a considerable value” may create ambiguity and misinterpretations, whereas the Customs Code, Article 6, defines the term “customs duties on import/export.”

The terminology used in formulating the provisions of the criminal offense of smuggling in the draft under discussion is, in most cases, unclear, unlike that of the Customs Code (Articles 250, 266) and the provisions in force on smuggling in the Criminal Code, which, in truth, are clearer and more understandable.

In these circumstances, since we are dealing with a lex specialis in which smuggling issues are set out in specific provisions both in the Customs Code and in the Criminal Code, greater clarity and better alignment is required between the terms used and the provisions relating to smuggling.

 

The provisions on criminal offenses concerning prohibited and restricted goods ought to have been more complete and specified separately, emphasizing the aim of safety and public protection. Meanwhile, for the criminal offense concerning excise goods, a specification or listing should be provided of the excise goods subject to smuggling, such as imported tobacco products, alcoholic beverages, fuels.

In the draft Criminal Code, although the provisions on smuggling have been excessively increased, the definitions in Article 613, “Smuggling in a customs regime”, restrict the instances of the smuggling offense to those not involving the placing of goods under a customs regime. Meanwhile, by failing to clearly formulate smuggling committed through crossing outside customs offices, goods without a customs declaration or with a false declaration, the activity of the criminal-prosecution authority and the court is made more difficult for their examination, classification, and sanctioning.

The draft Code increases the types of smuggling offenses, creating unnecessary repetitions (Articles 622, 619). Meanwhile, the formulations in Article 623 regarding the non-declaration of antique objects and the failure to include them together with goods of national value create ambiguities with consequences for investigative and judicial activity.

Article 626—Concurrence of offenses and complicity, is debatable. The position of the courts and, overall, the doctrine has up to now not considered forgery as a separate offense that concurs with the criminal offense of smuggling, whereas corruption has been considered an offense that concurs with smuggling.

The sanctions foreseen in the draft Code both custodial and pecuniary, run counter to the important principle that they be effective, proportionate, and dissuasive, and that they be set within reasonable limits. Meanwhile, this may create undesirable effects due to an excessive tightening of criminal-penalty mechanisms. Therefore, special provisions were required for the decriminalization of offenses with fines set at a reasonable level.

Thus, the provisions in the new draft Criminal Code for alternative imprisonment even for ordinary goods (Articles 620, 621/1, 617, 618, 619) aggravate the position of the person under criminal liability. This is particularly evident in Article 624 of the draft Code, where for legal persons fines are foreseen in the amount of five times (in fact, this should refer to duties avoided or unpaid). Adding here the administrative penalty set out in Article 268(2) of the Customs Code triple the avoided duty and the confiscation of smuggled goods and means of transport, the repressive measure of punishment exceeds every limit of logical reasoning!

Meanwhile, by failing to make distinctions regarding their quantity, weight, and value, this conflicts both with the provisions of the criminal legislation on smuggling in EU Member States and with the current trend to decriminalize certain smuggling offenses.

From this viewpoint, more careful analysis is also required regarding the inclusion of a person under investigation for evasion of the amount of VAT. It is clear that the customs moment of importation constitutes the incurrence of the customs debt (or the generating fact), but as regards the VAT liability, it is fully realized only upon the product’s release for consumption. And this is self-evident, just as mentioned in the VAT law, we are dealing with a supply. Therefore, this issue should have been analyzed with due attention, because the final inclusion of VAT in customs debts may have undesirable effects due to an excessive tightening of criminal-penalty mechanisms, without due assessment of the nature of the evaded liability, which concerns both the goods subject to confiscation and the payment of the evaded VAT.

Furthermore, the approach in the provisions of the draft Criminal Code, based on expanding the instances identified as smuggling (i.e., criminal violations over 10,000 euros) risks creating an unjustified situation in relation to VAT evasion, since it may open criminal proceedings even for cases of minor importance which, in most instances, end up pointlessly consuming the energies of the authorities and creating operational and financial consequences for businesses.

The provision in the draft Criminal Code for confiscation of means of transport in every case, as well as the failure to include the alternative of value-based confiscation where the goods are missing, requires further clarifications regarding the presence of the means of transport and when the means is specially prepared to conceal the goods, modified to increase load capacity or autonomy, or used in violation of rules relating to the circulation of motor vehicles and maritime safety.

The draft Code in Article 624(2), (3) and Article 625, borrowing from the general part of the Criminal Code in force, also provides for the court’s position regarding penalties and supplementary measures.

If procedures and judicial decision-making are to be included in this set of provisions on smuggling, then the court’s activity should be further expanded regarding instances of terminating the trial of a smuggling case and referring it for administrative proceedings etc, something that would unduly burden this provision, which could instead be included in the Customs Code, including the treatment of confiscated goods, etc.

Article 619 requires restructuring. Even from a formal viewpoint, this provision contains inaccuracies. Thus, the content of this provision should concern Smuggling in the movement or transportation of maritime, air, and cross-border lake goods, committed by the operator of the maritime or air means of transport as well as by its crew. Likewise, smuggling as a criminal offense in the customs field concerns responsibility for goods (including luggage) and not for persons, as foreseen in this legal provision.

 

The financial threshold constitutes a novelty compared to criminal legislation in the customs field. By means of it, from an objective standpoint, the boundaries are defined between an administrative violation (customs misdemeanor) and the criminal offense of smuggling. But this determination should have been addressed more extensively, since it is important for investigative authorities in classifying a customs violation as a misdemeanor or smuggling. We also think that the threshold of 1 million lek limits the inclusion of unlawful acts for qualifying the criminal offense of smuggling, which negatively affects crime-fighting.

It is true that in EU legislation the accepted financial threshold of 10.000 euros has been considered appropriate, but in our country, where commercial activity is not on the same scale as in the Union, the financial threshold to distinguish smuggling from a misdemeanor, where aggravating circumstances are present, ought to have been much lower.

Aggravating circumstances required a more complete treatment, based as well on the aforementioned principle of effectiveness, proportionality, and deterrence. Thus, in the draft Code, following the respective provision, the following should have been envisaged: professionalism of the person in committing smuggling; obstruction of law-enforcement and customs authorities in combating and prosecuting smuggling cases; the amount of the evaded duty; instances of prosecuting smuggling when the event is linked with other offenses against public faith or the public administration; and, depending on the above, alongside imprisonment, also a fine, etc.

The entry into force and transitional rules require a full re-working of both codes, the Criminal Code and the Customs Code in force. Otherwise, consequences may arise in respecting legality. In the present case, the draft code does not foresee a system-adjustment period and, as a result, it has not been deemed necessary to include transitional rules for the review, adjustment, and repeal of provisions of the Customs Code in force that concern smuggling (Articles 266–272), as well as the time needed by economic operators and the structures responsible for implementing both codes.

In conclusion, the latest changes to the Criminal Code represent an important step toward adapting our legal system to contemporary social, political, economic, and technological realities. The rapid evolution of criminal phenomena, particularly those related to cybercrime, corruption, taxation, the protection of minors, and the environment, requires a studied, clear, and effective legal response. Aligning criminal provisions with these developments is not only a practical necessity but also a duty arising from the fundamental principles of the rule of law and from the European integration process. Only through a criminal framework that is up-to-date, stable, and harmonized with international standards can material justice be guaranteed, criminality prevented, and citizens’ trust in the law, as an instrument of legal order and security, be strengthened.

In closing, from the review of the proposed provisions it becomes clear that the initiative to improve the criminal framework is necessary, but the way the process of rewriting the Criminal Code is being conceived leaves room for fundamental reservations. Instead of building on experience and existing provisions, we see a tendency toward hyper-codification, toward unnecessary expansion of norms, and toward burdening the system with theoretical, commentary-like formulations that are inaccurate and often ambiguous or multivalent. A sustainable reform is not achieved by rewriting everything from scratch, but by carefully reviewing, unifying, and improving what already works, in line with the real needs of the justice system and the economy. Therefore, more than a “New Code,” Albania needs a better code, built on transparency, institutional cooperation, and respect for legal tradition, a process that strengthens the rule of law rather than weakens it.