The Home the State Can Always Enter

Albania’s constitution says your home is inviolable. The Criminal Procedure Code says otherwise. The Constitutional Court has been asked to resolve the contradiction. It has chosen, repeatedly, not to answer.

By Ylli Manjani (Tirana)

Radovan Çela took his case to Strasbourg. He had exhausted what he could in Albania, which was not much, because the remedy he needed does not exist here. The European Court of Human Rights looked at his situation, acknowledged the problem, and told him to go back and exhaust domestic remedies first. There is only one difficulty with that instruction. The domestic remedy for challenging a home search authorization does not exist in Albanian law. The court sent him back through a door that has never been built.

That is where we are. That is the system.

Article 37 of the Constitution states that the home is inviolable. Entry is permitted only under the conditions and procedures prescribed by law. The language is unambiguous. The guarantee is categorical. And the Criminal Procedure Code has spent years quietly hollowing it out.

Here is the mechanism. A prosecutor applies for a search authorization. A judge approves it, typically in a proceeding that has no adversarial component, no challenge from the person whose home is about to be entered. The search proceeds. If the suspicion persists, the same home can be searched again. There is no limit in practice. And at no point in this sequence does the citizen have a procedural mechanism to challenge the authorization itself. They can contest the seizure of items found during the search. They cannot contest the entry. They can challenge the consequence. The cause is untouchable.

This is not a technical gap in the code. It is a structural inversion of what the Constitution requires.

The protection Article 37 offers is not a property right attached to objects inside the home. It is a personal right attached to the space itself. Strip the right to challenge the entry and you have stripped the guarantee to its shell. What remains is a declaration. A line of text in a document that prosecutors have learned to step over without cost.

The Strasbourg court has been clear about what Article 8 of the Convention demands. Interferences with the home must be based in law, necessary, proportionate, and subject to review by an independent authority. The review requirement is not decorative. It is the mechanism that prevents the other three conditions from becoming self-certified by the authority doing the interfering. A judge who approves a prosecutorial request, knowing that approval will never be examined afterward, is not exercising independent oversight. It is paperwork with a robe.

The counterargument exists and deserves a direct answer. Prosecutorial investigations are sensitive. An appeal mechanism for search authorizations could alert suspects, compromise ongoing cases, enable the destruction of evidence. These concerns are real. They do not justify what currently exists. A retrospective review, available once the investigation has reached a stage where disclosure no longer creates operational risk, would satisfy the constitutional requirement without obstructing legitimate work. That is not a radical proposal. That is what functioning legal systems do. Albania has simply declined to build it.

The Constitutional Court has had opportunities to say so. It has not taken them. Cases raising this question have come before it and been set aside. The court has not ruled the current arrangement acceptable. It has done something more comfortable: said nothing. In a vacuum this visible and this documented, silence is a position. The court has chosen the position that requires least of it.

The legislature has done the same. The gap is known. It reached Strasbourg. It is now in the public domain. The institutions responsible for closing it have looked at it and looked away.

What that leaves is a citizen whose constitutional right to an inviolable home is worth exactly as much as the process available to enforce it. When the process is absent, the guarantee is absent. You can write it in the constitution in capital letters. It changes nothing if the code that implements it gives the prosecutor a door and the citizen no key.

There is a phrase that gets used to describe this system. The Republic of Prosecutors. People say it as political shorthand, as insult, as hyperbole. It is none of those things. It is a description. When the state can enter your home, on the same suspicion, as many times as it decides to, and you have no legal avenue to question whether it was ever entitled to enter, you are not living under a constitution. You are living under the discretion of whoever holds the warrant.

The Constitutional Court should say what Article 37 actually requires. The legislature should build the remedy that makes that requirement real. Until one of them acts, the inviolability of the Albanian home remains what it has become: a promise the state made to itself, on terms it set, with no one authorized to hold it to account.

Ylli Manjani is an Albanian lawyer and former Minister of Justice (2015–2017). Since his dismissal from government, after which he publicly accused the Rama administration of protecting corruption, he has returned to legal practice and become one of Albania’s most persistent critics of prosecutorial overreach and judicial dysfunction.