Right of defense and trial in absentia in the case-law of the Constitutional Court

AuthorNoela Ruço
PositionConstitutional Court of the Republic of Albania
Vol. 4 No.2
September 2018
Balkan Journal of Interdisciplinary Research
IIPCCL Publishing, Graz-Austria
ISSN 2410-759X
Acces online at www.iipccl.org
Right of defense and trial in absentia in the case-law of the Constitutional
Noela Ruço (LLM, Doctorate)
Constitutional Court of the Republic of Albania
The main purpose of this article is to analyze the case-law of the Constitutional Court, with the
aim of identifying its role in ensuring respect for the standards of due process of law. The right
to due process of law constitutes a guarantee for citizens against the unjust actions of organs
of state power, as well as the obligation of the la er to non-violating the citizens’ rights and
freedoms. The right to due process of law in criminal proceedings is identif‌i ed by a number
of rights, such as the right to defend oneself in person, or through a defense lawyer. For these
reasons, the article will be focused on the right of defense of the accused person in criminal
proceedings, as well as on the elaboration and evolution in the constitutional case-law of
procedural provisions that regulate this right. To this end, there will be presented several cases
handled by the Constitutional Court in the light of principles elaborated by the European
Court of Human Rights in Strasbourg.
Keywords: European Court of Justice, Constitutional Court, the right of defense, judgment in
absentia, defendant.
Procedural guarantees, as part of the fundamental rights provided for by the most
important state laws, have been nowadays considered as the main pillar of the
democratic state of the rule of law. In this context, the Albanian legislator has included
this principle in Constitution, (Article 4) considering the respect for fundamental
human rights and freedoms as the foundation of functioning of the Albanian state and
society. This commitment has also been extended to the other parts of our legislation,
namely to the procedural and material one, as well as to the other sub-legal acts.
Some constitutional articles have provided for that during a criminal proceeding all
the procedural rights involved should be respected (Articles 27, 28, 29, 30, 31, 32, 33,
34, 42/2, 43, 44 of the Constitution). In case of failure to respect them, the individual
has the right of access to the court, taking advantage of all the guarantees to due
process of law. The right to due process of law is guaranteed by article 42/2 of the
Constitution of the Republic of Albania and article 6/1 of the European Convention
on Human Rights.
As to the procedural guarantees in criminal proceedings, the case-law of the
Constitutional Court of Albania (herea er CC) has considered that it should be
always taken into account the highest level of guarantees that might be o ered to the
accused. The Albanian CC has a very rich practice concerning the meaning of due
process of law, in spite of the nature of proceedings. The importance of due process of
law should be seen as closely related to the freedoms and rights it guarantees. That is
the reason why the respect for all its composing elements takes a crucial importance,

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