SPAK placed Constitutional Court judge under surveillance without formal investigation

The Special Anti-Corruption Structure (SPAK) authorized the surveillance of Constitutional Court judge Genti Ibrahimi for 15 days, starting from February 10, 2025. The wiretapping was approved by a court at the request of an SPAK prosecutor, despite the absence of any criminal complaint or formal investigation against any member of the Constitutional Court. The head of SPAK confirmed this in response to an inquiry from the President of the Constitutional Court, admitting that no judge from the court is under investigation but that the wiretapping was still carried out.

Why is this important: The surveillance of a Constitutional Court judge without any formal charges or investigation raises serious concerns about judicial independence and due process. SPAK’s actions bypass legal safeguards, setting a dangerous precedent where judges can be monitored based on vague suspicions rather than concrete evidence. This case highlights growing fears of prosecutorial overreach, undermining trust in the justice system and threatening constitutional separation of powers.

Context: Under Albania’s Code of Criminal Procedure, a criminal proceeding can only be initiated under three conditions.

• A complaint has been filed against a person suspected of committing a crime.
• The person is officially under investigation, meaning there are grounds to suspect their involvement in a criminal offense.
• The person has been formally charged, meaning the prosecution has substantial evidence of their criminal activity.

However, SPAK itself admits that no Constitutional Court judge falls into any of these categories, yet he was still placed under surveillance. The justification given by the prosecutor in his February 10 surveillance request was that certain individuals might attempt to influence the judge’s decision on a case where SPAK itself is a party. This case, decided by the Constitutional Court on December 30, 2024, ruled in favor of SPAK, but prosecutors feared that during the final reasoning of the decision, the court might favor defendants challenging SPAK’s arrest orders.

To monitor the judge’s actions, SPAK used a procedural loophole—registering a preliminary investigation based on mere suspicions rather than concrete evidence. This maneuver allowed SPAK to conduct factual investigations without listing the judge as a suspect, thereby evading court oversight, procedural deadlines, and legal representation for the accused. This practice has reportedly been used before on other individuals, who were questioned and monitored without being formally registered as suspects, preventing them from accessing their legal rights and procedural protections.

The case: The judge in question was assigned to review a legal challenge by businessman Pëllumb Gjoka, who was accused of involvement in a criminal organization following the decryption of his communications on the Sky ECC messaging app. Gjoka requested that the Constitutional Court declare his arrest unlawful and invalidate the Sky ECC messages as evidence.

In its December 30 ruling, the Constitutional Court rejected his claims of human rights violations and unlawful arrest, siding with SPAK. However, the court did not clarify whether the Sky ECC wiretaps could legally be used as evidence, leaving a key legal question open.

SPAK, accustomed to having its requests automatically approved by the Special Anti-Corruption Court, sought to pressure the Constitutional Court into explicitly legitimizing the use of Sky ECC evidence. The surveillance order suggests that SPAK feared the final written decision could include reasoning that would undermine its legal position.

SPAK’s justification. The prosecutor’s surveillance request to the court stated:

“While awaiting the final reasoning of the Constitutional Court’s decision, there is intelligence indicating that individuals with an interest in favoring Pëllumb Gjoka—and others in similar situations—are attempting to influence certain judges of the Constitutional Court to structure the ruling in their favor.”

The document further claimed that:

“Although the court rejected the request, interested parties are reportedly pressuring judges to ensure that the reasoning of the decision is drafted in a way that limits the use of Sky ECC evidence in court proceedings.”

“There is intelligence suggesting that Judge Genti Ibrahimi may have been subjected to external influence in order to structure the court’s reasoning in a way that benefits the accused, in exchange for irregular benefits or promises of such benefits.”

On this basis, SPAK justified the 15-day surveillance, citing potential violations of Articles 319 and 319/c of the Criminal Code, which criminalize corruption of judges, prosecutors, and other justice officials. The request invoked Article 221 of the Criminal Procedure Code, which permits surveillance in public places and allows for wiretapping of individuals suspected of exchanging information related to the case.

Constitutional Court’s response: Following revelations about the surveillance, the Constitutional Court issued a statement defending its independence and impartiality, but did not directly address SPAK’s actions. The court emphasized that its decisions are based on the supremacy of the Constitution and guided by principles of collegiality, independence, and impartiality.

“The court acknowledges its influence on political and institutional actors, the media, and the public. Therefore, it upholds transparency in decision-making to build and maintain public trust.”

“The court is committed to exercising its competencies with integrity, free from external influences or pressures.”

However, the statement did not mention the wiretapping case, effectively sidestepping the fact that SPAK had placed a sitting Constitutional Court judge under surveillance without any formal charges.

What’s next: What is most alarming is that no political party has reacted to this unprecedented case. Both the government and the opposition, which are quick to denounce SPAK when its actions affect their political allies, have remained silent about an event that directly threatens the independence of the judiciary.

The surveillance of a Constitutional Court judge, without any formal complaint or investigation, raises serious concerns about the unchecked power of SPAK and the emergence of what some analysts have called a “prosecutors’ republic.”