A court without lawyers, but with a regulation

By Ylli Manjani

From tomorrow, the Special Court of First Instance will no longer be able to hold even the hearings for the assessment of security measures with the parties in the courtroom. After a stubborn stance, with no legal sense and no institutional logic, by the assigned head of this court, the National Chamber of Advocates has decided to escalate its reaction. No lawyer will take part in the security-measure court hearings at that court.

This concretely means that there will be no lawyers even in the hearings where a person’s liberty is decided.

Imagine the situation. A person is arrested, or a wanted individual is caught. Within the legal deadline they must appear before a court to be informed of the security measure. The court opens the hearing… but there is no lawyer. According to the law, without a defender there is no due process. Then how will the court legitimize restricting a citizen’s liberty? The answer, it seems, is known only to the assigned head and his anti-lawyer regulation.

Perhaps this was not the intention of the regulation. Perhaps it was. But the result is that today, under the laws of the Republic of Albania, a criminal trial cannot proceed without the presence of a lawyer when the defense is mandatory. The regulation cannot change this.

The right to be defended by a lawyer is not a privilege of lawyers. It is the fundamental constitutional guarantee of due legal process. It is a citizen’s right against the state.

When a regulation sets conditions that make the normal exercise of this right impossible, it multiplies the Constitution by zero. With that regulation the court begins to resemble the time of communism, when the advocacy profession disappeared and the defense was considered an obstacle, not a guarantee.

If someone wants to change the role of the lawyer in the criminal process, they must do it by law, not by an administrative act. The law cannot be replaced by a regulation, nor the Constitution by fines, disciplinary threats or warnings of criminal prosecution against lawyers.

The service of advocacy does not return to the courtrooms by force. It returns only when lawyers are guaranteed to practice their profession without preconditions that conflict with the law and the Constitution.

Today the First Instance GJKKO is, as far as I know, the only court in Albania (and hardly another can be found in Europe) where lawyers are prevented from entering the courtrooms by Guard personnel. An image that does not befit a court, much less a court that claims the highest standards of the rule of law. Not even military courts function like this.

For the sake of truth, this regulation does not impose restrictions only on lawyers. It imposes absurd rules on judges and prosecutors too. The difference is that they do not have the option to collectively refuse to enter the courtroom. Lawyers do.

That is why this decision is not against judges nor against prosecutors. It is also in defense of those judges and prosecutors who, silently or openly, consider this regulation unacceptable.

The battle is not for a courthouse door. It is for the right that at that door the law enters before the regulation, reason before stubbornness, people with civil rights and not captains with military epaulettes.