The principled problem of the prosecutors’ contestation of the new justice reform

By Ylli Pata

The contestation by the prosecutors’ association of the new justice reform, namely the new Code of Criminal Procedure, was aggressive. It called it a violation of a prosecutor’s right of duty. But the arguments were missing.

It is quite normal for a prosecutors’ union to contest an initiative that limits preventive justice, the possibility of pre-trial detention to obtain evidence, or other repressive measures. The prosecutor, not only in Albania but in every democratic country, demands strong measures against defendants; it is nothing new at all and is not a novelty for us either. A strong debate just took place in the U.S. between prosecutor Jack Smith and Republican senators in Congress regarding his indictments against President Donald Trump. In Italy, the issue of the “red robes”, namely the politicisation of the prosecution, is a 40-year-old debate. In Spain, Prime Minister Pedro Sánchez accuses the prosecution of having raised and politically incited the investigations against him for corruption and against PES officials. The same discussion in France and several other Western countries. Not to mention our region. This is an eternal debate that will continue, and it is good that it continues. Because each power seeks to have the competences it thinks it should have in law. But the problem here is the lack of, or the opposition to, entering into public debate.

In Romania, Laura Kövesi, the current EU prosecutor, debated and brought her arguments after the Legislature’s political decisions against the anti-corruption bureau. In Italy, the mani pulite prosecutors have come out in the media to set out their arguments against parliament’s decisions to amnesty those detained in the first fury of the operation. The public debate, which continues in Italy, has shifted the discussion to the sensitive issues of justice, where each side says its own. This debate nourishes systems, speaking about the needs and possibilities of improvement; it is often polarising, but it takes place on facts and arguments.

Is preventive justice, namely repressive measures, the prosecution’s weapon? Certainly, but with measure and with the offence. Meanwhile, defendants and society will always have their own objections. There is a precedent that illustrates this issue in Italy, since it came up as an argument. The Florence prosecution took as defendants and publicly smeared the father and mother of former Prime Minister Matteo Renzi. Over a small fiscal matter. For the years they were defendants, the mud over Renzi did not stop, and afterwards the court declared them innocent and accused the prosecution of having acted wrongly. Was the dignity of Renzi’s parents restored? Yes! Was the consequence of that attack softened? Not at all! The debate between the guarantists and the Jacobins continues and will continue, but it requires a debate, not a dazibao…