TIRANA, Albania – The wheels of justice in Albania, particularly within the Special Court system, are grinding to a halt, bogged down by a pervasive strategy of procedural delays that benefits defendants at the expense of efficiency and public trust. This tactic, characterized by the frequent absence of legal counsel and other procedural maneuvers, is not an isolated incident but a systemic issue that stretches the patience of the courts, consumes valuable resources, and erodes the public’s perception of the justice system’s effectiveness.
At the heart of this ongoing struggle is the case of Evis Berberi, former head of the Road Authority. From January to May, his trial, along with those of 20 other co-defendants facing charges of corruption, violation of equality in tenders, and money laundering, has been a series of postponements. While the Special Court convenes, and all parties are present, the persistent absence of a lawyer is repeatedly cited as the reason for adjourning sessions. This pattern is not unique to Berberi’s case; it is a recurring theme in high-profile trials before the Special Court, where cases are stretched for months, and sometimes years, due to the deliberate strategies employed by defendants and their legal representatives.
The Mechanics of Delay: A Calculated Strategy
The strategy of delaying trials is not merely an inconvenience; it is a calculated approach that offers tangible advantages to defendants. Legal experts and judicial officials interviewed for this report highlight several key benefits derived from these protracted proceedings.
Strategic Exploitation of Pre-Trial Detention
One of the primary advantages for defendants lies in the calculation of their pre-trial detention time. Under Albanian law, one day spent in pre-trial detention is counted as 1.5 days towards a final sentence. By intentionally prolonging the trial process, defendants aim to maximize this credit, effectively reducing their potential jail time.
Engert Pëllumbi, President of the National Association of Judges, described this phenomenon as an "endemic problem of the judicial system and the special courts in particular." He explained that the delays are designed to benefit defendants, not only through the reduced calculation of their sentence but also by creating an alibi for their eventual release. "By orchestrating postponements of their stay in pre-trial detention," Pëllumbi stated, "a portion of the defendants can later use this as an argument to request their freedom, citing the passage of a prolonged period in isolation."
Lirime Shukaj, a professor of criminal law at the University of Tirana, echoed this sentiment, emphasizing the clear objective behind the frequent absences of lawyers. "You seek to postpone the process because you can benefit, firstly, from the phases of pre-trial detention," Shukaj told BIRN. "The defendants’ goal is to remain in pre-trial detention for as long as possible, so that when the court imposes the sentences, they are equivalent to the portion already served. This is the objective."
The Illusion of Alibi and Extended Freedom
Beyond the direct benefit of reduced sentencing, the prolonged period in pre-trial detention, artificially extended through delays, can also serve as a tool for defendants to argue for their release. The longer a defendant remains in custody without a final verdict, the stronger their argument becomes for having served a substantial portion of their potential sentence. This can lead to situations where individuals accused of serious crimes are released pending trial due to the sheer length of time they have already spent in detention, even if their case has seen minimal progress.
Chronology of Stalling: The Evis Berberi Case as a Microcosm
The trial of Evis Berberi, the former head of the Road Authority, serves as a stark illustration of how this strategy unfolds in practice. Since the beginning of the year, the proceedings have been repeatedly adjourned, primarily due to the absence of legal counsel. This pattern, while seemingly straightforward, represents a deliberate tactic to push the trial dates further into the future, thus maximizing the benefits derived from pre-trial detention.
- January – May: The Evis Berberi trial, involving 20 co-defendants, has been characterized by a continuous cycle of postponements.
- Recurring Obstacle: The primary reason cited for these adjournments is the absence of defense lawyers, despite the presence of the court and other parties.
- Simplified Process Unfulfilled: The defendants have opted for a shortened trial process, which, according to the Criminal Procedure Code, should conclude within two to three sessions. This expectation has been consistently unmet due to the persistent delays.
- Broader Systemic Issue: The Berberi case is presented as just one example among many high-profile trials before the Special Court that are suffering from similar protracted delays.
This chronology highlights a systematic failure to adhere to the principles of swift justice, where the procedural rights of defendants are being weaponized to undermine the timely resolution of criminal cases.
Supporting Data: The Endemic Nature of the Problem
The issue of trial delays is not confined to a few isolated cases. Judicial officials and legal experts across Albania acknowledge it as a pervasive challenge.
Ferdinand Ndoja, the head of the Disciplinary Committee at the National Chamber of Advocates, confirms that this delaying strategy is often initiated at the request of the defendants themselves. "It is the clients who tell their lawyers not to attend the sessions. They even pay the fines," Ndoja stated, questioning the ethics of such behavior. He further noted that while courts may impose fines for non-attendance, these measures are often insufficient, and the disciplinary committees are not acting proactively enough.
"Courts impose fines and do not appeal them, and they appoint lawyers ex officio [on duty]," Ndoja added. The Disciplinary Committee, he explained, does not act independently but is triggered by referrals from courts or other parties. He revealed that for over a year, he has not received any appeals from courts regarding the repeated absence of lawyers, despite this being a daily occurrence. "We need an appeal from the client, the court, the prosecution, or the Ministry of Justice. When we have had an appeal, we have treated it with priority," he said, referencing a past case where a lawyer’s license was revoked.
Professor Shukaj pointed out that while the Criminal Procedure Code allows for fines in cases of unjustified absences, there is a need for more robust disciplinary measures when these absences become habitual and lack any legitimate reason. "If the absence becomes repetitive, which is actually missing from the Criminal Procedure Code but is present in the law on lawyers, it would precisely be the initiation of disciplinary proceedings, because it damages the development of the trial within a reasonable timeframe," Shukaj emphasized.
Official Responses and Proposed Solutions
The gravity of the situation has prompted discussions and proposals from various stakeholders within the Albanian justice system. However, the effectiveness of current measures and the urgency of implementing new solutions remain a critical concern.
Insufficient Measures and the Need for Proactive Enforcement
Both judges and legal academics agree that the measures currently employed by the Special Court, such as appointing lawyers ex officio or suspending pre-trial detention periods, are not proving to be sufficiently effective in curbing the tide of delays.
"Even though the Special Courts usually use these tools, they are not entirely effective in preventing the stalling of processes," observed Pëllumbi. He also deemed the fines imposed as insufficient, noting that the procedures for their execution are time-consuming, rendering them ineffective.
Proposed Solutions: A Multi-Pronged Approach
To address this systemic issue, several solutions have been proposed:
- Increased Fines and Expedited Enforcement: Pëllumbi suggests increasing the fines to their minimum limit and finding mechanisms for immediate execution through agreements with private bailiff services.
- More Frequent Referrals to Disciplinary Committees: He also advocates for more frequent referrals to the Disciplinary Committee of the Chamber of Advocates, despite an observed lack of trust among judges and prosecutors regarding the committee’s effectiveness.
- Amendments to the Criminal Procedure Code: A significant proposal from Judge Pëllumbi involves amending the Criminal Procedure Code regarding the calculation of pre-trial detention. He argues that if one day of pre-trial detention were calculated as one day of imprisonment, similar to other legal systems (e.g., Italy), it would lead to a reduction in ineffective sessions. Defendants would no longer have the incentive to prolong proceedings to gain credit for time served.
- Exclusion of Suspended Detention Periods: Another suggestion is to exclude suspended pre-trial detention periods from the calculation of the sentence duration.
Professor Shukaj also stressed the importance of initiating disciplinary proceedings for repeated and unjustified absences of lawyers. This would directly address the detrimental impact on the timely conduct of trials.
The Ethical Dimension: Client Pressure and Lawyer Compliance
The role of the defense lawyer in this equation is complex. While some lawyers may be complicit in the delaying tactics, others are undoubtedly pressured by their clients to adopt such strategies. Ferdinand Ndoja of the Chamber of Advocates highlighted this ethical dilemma, questioning the morality of clients who instruct their lawyers to obstruct justice and then penalize them for doing so.
The current system, where disciplinary action is often reactive rather than proactive, allows these delaying tactics to persist. The lack of consistent and stringent enforcement of disciplinary rules against lawyers who repeatedly and unjustifiably miss court sessions allows the problem to fester, undermining the very foundation of a fair and efficient judicial process.
Implications: Erosion of Public Trust and Judicial Integrity
The ongoing delays in high-profile trials have profound implications for the Albanian justice system and public confidence.
- Erosion of Public Trust: When citizens witness justice being repeatedly deferred, their faith in the legal system inevitably erodes. This can lead to a perception that the system is either inefficient, corrupt, or that the powerful can escape accountability through legal loopholes.
- Resource Drain: Prolonged trials consume significant financial and human resources within the courts, diverting attention and capacity from other essential cases. This creates a backlog that further exacerbates the problem.
- Undermining Deterrence: The perceived inability of the justice system to deliver timely verdicts weakens its deterrent effect. Potential offenders may be emboldened if they believe they can exploit procedural delays to avoid or significantly reduce their sentences.
- Perception of Inequality: The fact that these delays often occur in cases involving individuals with means to afford lengthy legal battles can create a perception of inequality before the law, where justice is not blind but swayed by financial power.
The pervasive issue of trial stalling in Albania, exemplified by cases like that of Evis Berberi, demands urgent and decisive action. Without significant reforms to the legal framework, stricter enforcement of disciplinary measures, and a shift in strategic thinking within the legal profession, the promise of swift and equitable justice will remain a distant aspiration for the citizens of Albania. The current system is not merely slow; it is actively being undermined, and the consequences are a compromised judiciary and a disillusioned public.
