A half justice is full injustice

By Plarent Ndreca

The Constitutional Court’s recent decision on the protection of the secrecy of correspondence and personal data, in the context of a criminal investigation conducted by SPAK, has been welcomed by a significant portion of the legal community. In my view, this reaction reflects more a desire to identify signs of European standards in a system long deprived of them, than a genuine belief that the decision fully meets what is expected of a constitutional court.

As I have said before, a serious distortion has taken hold of our justice system and continues to affect its functioning. A corporatist, statistical, and political culture (in the broadest sense of the term) is increasingly evident—one in which the system no longer acts as a guarantor of rights, but as an organism seeking to protect itself and send signals to society and public opinion—an attribute that belongs to politics, not to the judiciary. In such a system, fundamental rights and freedoms, which under Article 15 of the Constitution are “indivisible, inalienable, and inviolable, and stand at the foundation of the entire legal order,” gradually shift from the center to the periphery of that order.

It is within this context that the Constitutional Court’s decision must be read.

At first glance, it creates the impression of procedural balance. The Court acknowledges the violation of fundamental rights, recognizes the intrusion into private correspondence, orders the destruction of data unrelated to the subject of the investigation, and develops a broad analysis of the limits of such interference. It elaborates on the concept of electronic correspondence, distinguishes between relevant and irrelevant data, examines judicial control both ante factum and post factum, and overall provides a comprehensive overview of the issues surrounding investigative practice in this area.

It addresses almost everything—except what should have been the first and most fundamental point of analysis: the absence of a legal basis authorizing interference with a fundamental constitutional right.

The Constitution and the European Convention on Human Rights are clear: any restriction of a fundamental right is permissible only if it satisfies three cumulative conditions, the first and mostessential being the existence of a clear, accessible, and foreseeable law that authorizes and regulates the interference. In the absence of such a law, any further analysis of proportionality and legitimate aim becomes unnecessary.

This is precisely where the Constitutional Court stops.

Today, in the Republic of Albania, there is no specific legal framework governing interference with the secrecy of private electronic correspondence.

This would have been the honest, correct, and decisive finding. A finding that would inevitably lead to the conclusion that any interference carried out under these conditions is, in itself,unconstitutional.

Any seizure, reading, or use of electronic correspondence, in the absence of a clear and foreseeable legal basis, constitutes a direct violation of fundamental rights.

But this conclusion was not articulated.

Because articulating it would have consequences. It would call into question a substantial portion of investigative practices, expose a systemic and ongoing violation, and create grounds for legal accountability for those who have acted without proper legal authorization.

Above all, it would disrupt a system that has grown accustomed to functioning in this way.

And the system cannot do that.

A system accustomed to operating in this manner has no interest in carrying legal truth to its logical conclusion. It seeks to manage it, soften it, and delay it. In this sense, the decision appears as a correction, but in substance it serves to manage a violation—one that will, sooner or later, return as a burden, not on its authors, but on Albanian taxpayers.

This is the vicious cycle we have entered: politics appears to lack either the power or the ambition to resolve it, while the justice system seems to lack the will—and perhaps the interest—to correct it. After all, any unchecked power has no reason not to expand its ambitions. As James Madison warned, “ambition must be made to counteract ambition.”

For this reason, the decision is, in essence, a “half justice” that translates into a new injustice.

An act of injustice that speaks in the voice of justice.