The problem isn’t the law—it’s the courts

The Supreme Court today issued a unifying ruling on pre-trial detention. It aims to clarify existing practice: courts should consider alternative measures before ordering detention, and prosecutors must justify arrest requests. In short, detention should depend not only on the alleged offence, but also on the circumstances. That is already what the law says. No real legal gap has been closed.

The only shift is in emphasis. A prosecutor’s request is not the law; the judge must decide. In principle, this is standard everywhere. In Albania, it often is not. Prosecutors’ requests frequently turn into court decisions, reflecting the pressure they exert on judges. So the ruling does not change substance. It restates a basic rule: the court is not the prosecutor.

The “Bektash Zeneli” case, cited by the Supreme Court, shows the real issue. It is not the law, but how courts behave toward prosecutors. In that case, the Court of Appeal released Zeneli five months ago. It acted independently and gave reasons. Had it followed the usual GJKKO–SPAK pattern, he would still be in jail.

There are clearer examples. GJKKO has repeatedly ignored binding rulings from the Supreme Court and the Constitutional Court. Take Supreme Court unifying decision no. 147 of 23 December 2021. It sets a clear rule on seizing journalists’ data and devices, with source protection as the core principle. Seizing devices risks exposing sources and should be an extreme measure.

SPAK ignored this. Years later, at 7 a.m., it raided the homes of two crime reporters, Artan Hoxha and Elton Qyno, taking phones, laptops and possibly even children’s devices. They were held without clear justification and later returned without any procedure that could assure the journalists their data had not been accessed.

So the rules did exist, and they were clear. SPAK and BKH chose to ignore them.

Even after the Constitutional Court ruled in Qyno’s favour and set a constitutional standard, SPAK continued to argue in court for broad device seizures and data grabs beyond the scope of the case. It has become routine.

In cases involving politicians or public figures, such material is often used to feed friendly outlets with gossip about the accused, creating a parallel trial in the media. It is a propaganda tactic that persists despite the Justice Reform. There has been no investigation into these abuses and no effort to follow the standards set by the higher courts.

The problem, then, is not the lack of rules. There are enough. The problem is non-compliance. Thousands held in pre-trial detention have overcrowded prisons, raised costs and damaged the system’s credibility. This is not a legal gap. It is a failure to apply the law.

The courts themselves appear sensitive to claims that this ruling serves Meta, Beqaj or Veliaj. But those cases do not need a new ruling. They need independent courts. They are not in detention because rules were missing, but because courts have not checked politically driven prosecutorial requests. The Supreme Court itself has upheld some of these detentions.

The core issue is the imbalance of power. Prosecutors hold excessive leverage over courts. There are reports of unauthorised surveillance within the justice system, and incentives tied to statistics that reward a hard-line approach.

That is what needs fixing. Today’s ruling changes little. It helps no one already affected. It changes nothing for Zeneli either. He was released months ago.

Originally published in Albanian as: Më shumë se sa ligji, problem janë vetë gjykatat