FLASH
Shkruar nga Thoma Gëllçi
Justice is not built by perception, but by procedure; it is not upheld by the prosecution, but by the court; and it should not cause fear, but inspire trust.
Yesterday, the new president of SPAK was elected. The attention was extraordinary: the media followed him step by step, public opinion was involved in analysis and comments, while internationals treated him as an event that determines the future of justice in Albania. At the same time, it is surprising that the vast majority of Albanians do not know who the Prosecutor General is, nor who heads the Special Court, the High Court or the Constitutional Court. Even fewer know the names of the presidents of the courts of fact, which the justice reform has distributed in such a way that the ordinary citizen no longer has a clear idea where to turn.
It is even more strange how foreign diplomats, who in the logic of the rule of law should have a special interest in the independence of the courts, have focused almost all their attention on SPAK and its leaders. Meanwhile, in no other European country is the prosecution treated as the most important institution of justice; this role belongs to the court, which is the foundation of equality before the law and the last guarantee of the citizen.
In democratic societies, when someone thinks that their right has been violated, they say to themselves: “I will go to court”. This phrase does not simply express the desire for conflict, but the belief that the court is the institution that can establish justice, correct the abuse of power and protect the citizen from arbitrariness. The court is the third power and it is not by chance that the Constitution of Albania, in Article 7, defines the separation and balance of powers as a fundamental principle of the republic.
In Albania, this principle seems to have been blurred. Today, the expression “SPAK will be taken over”, “SPAK will solve it”, “SPAK will clean up politics” is more often heard, as if the prosecution is the final authority of justice. This is a fundamental misunderstanding of the Western model, because according to Article 148 of the Constitution and according to the basic concept of the criminal process, the prosecution is an accusing body and not a trial body. It presents allegations, not decisions; it requests measures, but does not grant them; it raises doubts, but does not determine guilt. Only the court, according to Article 42 of the Constitution and Article 6 of the European Convention on Human Rights, has the right to decide on the freedom, property and honor of the citizen.
In Albania, this role is reversed. And if public perception were the only problem, it would still be dangerous, because perception shapes the legal culture of a society. But in Albania, the reality of judicial practice shows that the Special Court often acts as a notary of SPAK decisions. Preliminary investigation judges almost automatically sign off on the measures requested by the prosecution: detention in prison, prison, prison, prison.
This is an imbalance that violates the principle of equality of parties and we simply have a "predetermined justice". And when the criminal process loses its impartiality, it turns into a formal rite, where the court is no longer the authority that weighs between the accusation and the defense, but simply the signatory of a logic created in advance. In this atmosphere, the citizen begins to submit to the idea that the accusation is equal to the guilt, an unacceptable equation in any democratic state.
According to Article 148 of the Constitution of the Republic of Albania, the prosecution represents the accusation on behalf of the state, which is a necessary function in any modern criminal system. But this constitutional role only makes sense within the fundamental principle of equality of arms, which requires that the other party, the defense, have the same procedural rights and the same access to legal remedies to confront the accusation.
However, the widespread and in many cases argued opinion among the accused and the lawyers themselves is that in criminal proceedings of the Special Court where the accusing party is SPAK, the role of the lawyer is reduced to almost zero. The claims of the defense are rarely heard, and even less often taken into account. This creates a reality, as if the lawyer is a formal, non-functional figure, who exists only to fulfill the legal requirement for “presence of defense”, but not to actually exercise its function.
This inequality becomes even more evident in relation to the defendant, who not only faces a powerful prosecution and a court that is often oriented towards the prosecution's demands, but is also physically placed in humiliating positions. Placing him in a glass cage, which isolates him from free and immediate communication with his lawyer during the hearing, is in clear contradiction with the minimal principles of a fair trial. A defendant who cannot communicate with his lawyer in real time is a defendant deprived of effective means of defense.
World history has shown what happens when the prosecution takes on the role that belongs to the court. Italy in the 1990s, with its “Mani Pulite,” was filled with spectacular indictments and arrests, while hundreds of cases were dismissed in court. Political reputations were destroyed not by judicial decisions, but by investigative processes. In Turkey, the merger of the prosecution with the executive branch has led to thousands of arrests. In the United States, the debate over the excesses of prosecutorial powers has led the Supreme Court to impose strong restrictions to maintain the balance between the prosecution and the defense.
This balance is the essence of the criminal process. The prosecution is one side. The defense is the other. Only the court is the weight that keeps them in balance. The moment this balance is broken, justice risks turning into a political, media or administrative instrument, but not a legal one.
In the practice of Albanian justice, one of the most serious problems that directly affects fundamental human rights is related to the taking of arrest measures without the presence of the parties and without first summoning the suspect for questioning, placing him/her in front of a severe measure restricting freedoms without any prior opportunity for defense. From a decision taken “in the consultation room”, a citizen is sent directly to prison without ever being questioned. And I am not talking here about flagrant crimes. It is a real shame for a country where about 60 percent of the prison population consists of pre-trial detainees who have not yet been given a court decision.
Only when society naturally restores the expression "the court decides", and when the courts begin to act with the independence and power granted to them by law, can we say that Albanian justice is entering the true tracks of the rule of law. Because justice is not built by perception, but by procedure; it is not maintained by the prosecution, but by the court; and it should not cause fear, but inspire trust.
Lini një Përgjigje