Insulation Is Not Independence

What began as a reform to break impunity has produced a system where imbalance is built into the structure itself: the courtroom no longer functions as a space of neutral adjudication, but as one shaped by institutional asymmetry—one that doctrine alone cannot fix.

by Renada Bici (Legal Examiner Desk)

Skënder Minxhozi’s recent commentary on the Sadushi initiative made an argument the country needed to hear. The unification of detention doctrine by the Joint Colleges is welcome and overdue, but it is a corrective applied to a symptom. The deeper question, as Minxhozi framed it, is what kind of system produces the symptom in the first place. His diagnosis is correct. It also stops one step short of the institutional reading the moment requires.

A Supreme Court that has to unify detention doctrine in a specialized court is a Supreme Court compensating for a structural failure it cannot itself repair. The Chief Justice has done what a Chief Justice can do within the constitutional limits of his office, and he has done it unanimously, which is itself a signal of how serious the drift had become. But the drift did not originate in doctrine, and it cannot be permanently corrected there. It originated in the institutional position the Special Court Against Corruption and Organized Crime, GJKKO, occupies relative to the special prosecution. Until that position is corrected, no doctrine the Joint Colleges issue will reach the underlying problem.

GJKKO was created to solve a real problem. The ordinary courts could not be trusted to hear cases against organized crime networks and high-level political corruption. The reform built a specialized track with vetted judges, insulated career paths, and an institutional design intended to break the dependency between defendants of means and the courts that judged them. The diagnosis was correct. The institutional solution carried within it a flaw the architects either did not see or chose not to address.

That flaw is the structural relationship between GJKKO and SPAK. The two institutions emerged from the same vetting process, draw from overlapping career pipelines, and operate within an ecosystem where the special prosecution holds investigative authority over the special judges who hear its cases. A judge who rules against SPAK on a detention motion knows, with institutional clarity, that the prosecutor before him today may be the one investigating him tomorrow. This is the operating logic of the system as it currently functions, and it is the source of the deference Minxhozi identified without naming.

The remark attributed to a former head of SPAK, that courts deliver the decisions “we want,” was not a slip. It was an accurate description of a system in which the prosecution does not need to persuade the court because it controls the conditions under which the court operates. A doctrine of detention, however carefully drafted, cannot dissolve that conditioning. It can only restrain its most visible expressions.

The pattern Minxhozi documented becomes legible once the mechanism is named. When prosecutors argue that a defendant should remain in pre-trial detention because he has hired foreign lawyers and might use them to seek his release, the argument is not constructed to persuade an independent court. It is constructed for a court that does not need to be persuaded. When judges, rather than prosecutors, are the ones requesting additional investigations in the Beqaj case, the inversion of roles is not an anomaly. It is the system functioning according to its operating logic. The deference is not always overt. More often it is anticipatory: the court adjusts to what it knows the prosecution will accept, before it is asked. That is the texture of the climate Minxhozi described, and it is invisible to a doctrine of detention because doctrine assumes a courtroom in which the question of who is afraid of whom does not arise.

Minxhozi’s strongest claim, and the one that elevates his commentary beyond a critique of GJKKO alone, is that this climate is no longer confined to the special system. It is spreading, he argues, into every pore of the new justice. The claim deserves to be taken seriously rather than absorbed as rhetoric. If a specialized court designed for insulation has produced an institutional culture in which the bench defers anticipatorily to the prosecution, the question is whether that culture transmits to ordinary courts through shared career pipelines, shared vetting infrastructure, and the institutional gravity of SPAK’s authority across the system. The answer is not yet definitive. The trajectory is. A judiciary that learns deference in its most insulated court will carry that deference outward, because institutional cultures do not respect the boundaries drawn around them by their architects. Whether the broader system already reflects what Minxhozi describes or stands at the early stage of reflecting it, the argument for structural correction is the same. It only becomes more urgent.

Two structural corrections are required, and neither can be delivered by judicial doctrine alone.

The first is a procedural firewall between SPAK’s investigative authority and the GJKKO bench. Any investigation of a GJKKO judge that is initiated, supervised, or conducted by SPAK in a case where SPAK is itself a party should be prohibited by statute. Where credible suspicion of judicial misconduct exists, the investigation must be routed through an independent body with no procedural relationship to the case in which the judge is sitting. The High Judicial Council, an independent panel constituted for this purpose, or another mechanism: the institutional vehicle is open to debate. The principle is not. A prosecutor cannot hold investigative authority over the judge ruling on his motions.

The second is the appointment and tenure architecture of GJKKO itself. The judges of the special court are drawn from a pipeline that overlaps too heavily with the prosecutorial track. The reform’s logic of insulation produced a closed system in which the same institutional ecosystem produces both sides of the courtroom. A genuinely independent specialized bench requires intermediation: an appointment process that draws candidates from outside the prosecutorial career path, tenure protections that cannot be pierced by SPAK referrals, and disciplinary review mechanisms that operate independently of the institution whose cases the court hears. The current arrangement was designed for insulation from the old order. It needs redesign for independence within the new one.

What Minxhozi described as the central failure of the reform sits, in institutional terms, here. The disproportionate empowerment of the special prosecution he diagnosed is real, but it operates through a specific mechanism: the absence of structural independence between the special bench and the institution that prosecutes before it. A court that adjudicates under the investigative authority of one of the parties before it does not satisfy the impartiality requirement of Article 6 of the European Convention on Human Rights. The phrase has a domestic resonance Albania cannot afford to ignore as the country approaches accession. The repair has to come from the Assembly, from the High Judicial Council, and from a constitutional conversation the country has been reluctant to open since the reform was passed.

The reform’s premise was sound: insulate the special justice system from the pathologies of the old order. The execution missed a step. A court that cannot resist the prosecution’s analytical frame, that operates under the investigative shadow of the institution it is meant to adjudicate, is not insulated. It is captured by what was meant to be its institutional partner. The Sadushi initiative has corrected what doctrine can correct. What doctrine cannot correct is the position of the bench inside the institution. Insulation is what the reform built. Independence is what it owes.

Renada Bici is a Tirana-based lawyer practicing in civil, criminal, and administrative law. She holds a law degree from the University of Tirana and has experience in both private legal practice and public administration. She writes for the Tirana Examiner Legal Desk.