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

• Author: Noela Ruço
• Position: Constitutional Court of the Republic of Albania
• Pages: 7-20

7

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

Court

Noela Ruço (LLM, Doctorate)

Constitutional Court of the Republic of Albania

Abstract

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.

Introduction

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,