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Publication

Roadmap to the EU: Membership through criminal justice reform in Albania

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This report assesses how Albanian laws, policies, and practices, compare with the standards of EU laws relating to the procedural rights of suspects and accused people in criminal cases. It identifies key differences between Albanian and EU laws that need to be addressed through legislative changes, and highlights key barriers to practical implementation. Based on this research, this report also provides key practical recommendations for reforms.

An overview of the findings is available here.

Read this report in Albanian.

Albania’s accession to the EU

Since 2014, Albania has been an official candidate for membership to the European Union and in March 2020, the EU officially opened accession negotiations in recognition of the significant progress made by the country and its “determination to advance the EU’s reform agenda” to become the EU’s newest Member State.

Throughout the accession process, the rule of law, fundamental rights and justice have been recognised as crucial challenges for Albania. This is reflected in the five key priorities identified by the European Commission (the ‘Commission’) for the opening of negotiations, all of which related to the administration of justice, human rights, and criminal justice, and continue to be monitored. Although improvements made on these priorities were key to the opening of negotiations, it is clear from the Commission’s 2020 enlargement report for Albania that there is still considerable room for improvement, especially with regard to fundamental rights.

It is critical that Albania’s compliance with international and European standards on the rule of law and human rights is subject to close and thorough scrutiny during the negotiations on accession. Threats to the rule of law and human rights in various EU Member States have become a serious and growing challenge for the EU in recent years, and they are a potent reminder that adherence to the EU’s core values cannot be taken for granted. The EU must ensure that candidate countries can be trusted to not only respect those values, but also to give effect to fundamental rights in practice, as strict preconditions for joining the EU. To do so otherwise risks seriously undermining the common values that underpin the foundations of the EU, and that preserve its unity. to suspects and accused persons, but it is drafted in formal language reproducing legal provisions that most individuals are likely to have difficulties understanding. Further, the content of the Letter of Rights is limited, but there is no formal obligation on officials to inform suspects/accused persons of the additional rights not mentioned in the Letter of Rights.

Criminal justice and accession

Although criminal justice is clearly a core priority in Albania’s accession process, the EU’s primary focus has been on the reform of the judiciary to improve its transparency and independence, and on tackling corruption and organised crime. Meanwhile, compliance with minimum standards on defence rights has received less prominent attention.

‘Legal guarantees of a fair trial’ are, however, an explicit part of the EU’s ‘acquis’. As such, they form part of laws and regulations common to all Member States that must be implemented by candidate countries in order to join the EU. In addition to the standards set out in the EU Charter of Fundamental Rights, these common rules are codified in six directives which were adopted pursuant to the EU’s 2009 Roadmap to strengthen procedural rights of suspects and accused persons in criminal proceedings.

These six Roadmap Directives are:

• Directive 2010/64/EU of the European parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (‘Interpretation and Translation Directive’);

• Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (‘Right to Information Directive’);

• Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (‘Access to a Lawyer Directive’);

• Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects and accused in criminal proceedings (‘Children Directive’);

• Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (‘Presumption of Innocence Directive’); and

• Directive 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (‘Legal Aid Directive’).

The EU’s interests in Albania’s compliance with the Roadmap Directives

The effective implementation of the Roadmap Directives is crucial for Albania’s membership to the EU, not just because they are part of the acquis, but also because they complement and support efforts to address the EU’s priorities for the accession process highlighted above. An effective mechanism for tackling organised crime and corruption must be underpinned by a fair criminal justice system that guarantees the basic rights of defendants. Improvements on the transparency and the independence of the judiciary will have a limited impact on the fairness of judicial outcomes unless complemented by effective human rights protections in legal proceedings.

The transposition of the Roadmap Directives is also central to the effective operation of the EU's criminal justice cooperation mechanisms. In the last two decades, Member States have been cooperating closely on crossborder issues, principally through mutual recognition mechanisms such as the European Arrest Warrant (‘EAW’). The operation of these mechanisms relies on mutual confidence between Member States’ judicial authorities that each will respect the fundamental rights of the people concerned. The effectiveness of such instruments is undermined where judicial authorities do not, in reality, have full confidence in other Member States’ compliance with fundamental rights. A primary objective of the Roadmap Directives is to provide a stronger basis for mutual trust between Member States’ legal systems and to reinforce the effective cross-border cooperation on criminal justice matters. As such, the effective implementation of these directives will help to ensure that Albania is a trusted partner on inter alia extraditions, evidence-sharing, and the implementation of judicial decisions.

The relevance of the Roadmap Directives extends beyond the borders of the EU and its accession states. On the whole, the Roadmap Directives codify, clarify, and build on existing standards on the right to fair trial that have been set by the European Court of Human Rights (‘ECtHR’) (as well as by other international and regional human rights mechanisms). Albania ratified the European Convention of Human Rights (‘ECHR’) in 1996 and faces numerous challenges regarding the right to a fair trial in criminal cases. This is evidenced by findings by the ECtHR over recent years of violations in relation to aspects of the right to a fair trial including access to a lawyer, the presumption of innocence, and the right to be present at the trial/the right to a retrial following sentencing in absentia. Greater compliance with the Roadmap Directives could help to address many of these challenges. In addition to helping to progress Albania’s accession to the EU, these Directives could act as a useful yardstick that could highlight what needs to be done in order to bring local laws in Albania in line with international and European human rights standards more broadly.

Practical implementation

In recent years, Albania has embarked on a major overhaul of its laws to align them with the standards in the Roadmap Directives. There have, for example, been sweeping amendments to the Code of Criminal Procedure, and in 2017, a new Criminal Justice for Children Code (‘Children Code’) was adopted to bring the country’s standards in line with EU laws on juvenile justice. These are considerable achievements that represent welcome progress on the advancement of defence rights in Albania.

However, experiences of EU Member States show that the implementation of the Roadmap Directives is far from a simple question of amending domestic legislation to bring the law into line with EU standards. The mere existence of laws guaranteeing fair trial rights does not mean that those rights can be exercised in practice. The practical implementation of EU law requires a more holistic approach, ensuring not only that the wording of local laws reflects EU standards, but also that it is supported by a broader framework of measures that ensure real and effective implementation.

 

Read the report in Albanian.

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