The Standard That Does Not Exist

When courts trade evidence for perception, detention stops being law and starts being belief.

Renada Bici  | Tirana Examiner Legal Desk

On Wednesday, Albania’s Constitutional Court — the country’s highest judicial authority and the final domestic guardian of individual rights — upheld the continued imprisonment of a former head of state pending trial. What it did not have the right to do was the reasoning it used to get there.

The Court concluded that pre-trial detention was justified because there appear to be facts capable of convincing “even an outside observer” that the person may have committed the offences charged. That single sentence is the subject of this analysis. Not the case. Not the defendant. The sentence.

What pre-trial detention is, and what it requires

Pre-trial detention is imprisonment before conviction. The person held has not been found guilty of anything. Under the European Convention on Human Rights — ratified by Albania and incorporated into its Constitution — the deprivation of liberty before a verdict is one of the most tightly constrained powers a state can exercise. Article 5 of the Convention permits it only under specific, cumulative conditions: there must be reasonable suspicion, grounded in concrete and verifiable evidence, that the person has committed an offence; and there must be an identified legal ground for continued detention, such as a genuine risk of flight, interference with evidence, or serious threat to public order. These are not suggestions. They are the ceiling of what a signatory state may do to a person it has not yet convicted.

The phrase “reasonable suspicion” carries precise meaning in the case law of the European Court of Human Rights in Strasbourg. It requires a judicial officer to review the actual circumstances of the case, weigh the arguments for and against detention, apply legal criteria, and order release where those criteria are not met. The inquiry is adversarial. It is conducted inside the courtroom. It is measured against evidence, not against atmosphere.

What the Constitutional Court said instead

The “outside observer” standard the Constitutional Court employed this week exists in none of that framework. It is not drawn from Article 5. It does not appear in the Albanian Code of Criminal Procedure. It has no address in Strasbourg case law. It is not a reinterpretation of an existing standard. It is a non-legal standard — one borrowed from the domain of public impression and social perception — elevated without justification into constitutional doctrine.

In practice, what the standard asks is this: would someone watching from outside the courtroom find it plausible that the accused committed the acts in question? That is not a legal test. It is a poll. And when liberty depends on what an outside observer might believe, the presumption of innocence has already been abandoned. What fills that poll is not evidence tested under cross-examination — it is leaked investigation files, prosecutorial briefings, and accumulated headlines.

The gap between those two things — legal proof and public impression — is precisely what the presumption of innocence exists to protect. Pre-trial detention justified by the second rather than the first does not strain Article 5. It reverses it.

How this standard entered Albanian jurisprudence

Wednesday’s decision did not create this problem. It inherited and consecrated it. Albania’s Special Court of Appeal for Corruption and Organised Crime — the appellate body sitting directly below the Constitutional Court in the anti-corruption judicial structure — has applied analogous reasoning across multiple detention reviews in recent years, treating the apparent weight of investigative material and the gravity of public attention as proxies for legal sufficiency. That reasoning was contested. It had not, until this week, received constitutional endorsement.

It has now. The Constitutional Court carries binding interpretive authority over every court beneath it. Judges across Albania’s anti-corruption judiciary will read Wednesday’s ruling. They will note that a court that knows exactly what Article 5 requires chose instead to apply something else. They will use it. A standard with no foundation in law has been given the force of constitutional principle, and it will not remain confined to the case that produced it.

The Strasbourg record

Albania has already lost this argument in an international court. In Gëllçi v. Albania, the European Court of Human Rights found that an Albanian anti-corruption court had imprisoned a defendant on justifications that were vague, unsubstantiated, and unsupported by the diligence Article 5 requires. The Albanian state bore the costs. The ruling was a direct judgment on the detention practices of the same judicial structure whose reasoning the Constitutional Court has now ratified at the highest domestic level.

The trajectory from that ruling to Wednesday’s decision is not ambiguous. A court presented with the opportunity to correct a deficient standard has instead adopted it. When the Meta detention reaches Strasbourg — and it will — the Albanian state will face that court carrying a Constitutional Court decision that replaced reasonable suspicion with outside perception as the measure of lawful imprisonment. That is not a weakened position. It is a losing one.

Conclusion

What the Constitutional Court issued on Wednesday is not a defensible interpretation of Albanian or European law. It is the formal installation of public perception as a substitute for legal proof in the most consequential act a state can perform against an individual: taking away their liberty before any finding of guilt.

Every person held in pre-trial detention in Albania is legally innocent. The standard applied to keep them there must mean something specific, something verifiable, something that holds in Strasbourg. Wednesday’s decision ensures that it does not. The Constitutional Court had the authority, the occasion, and the obligation to say what the law requires. What it produced instead will stand in the record not as a ruling on one case, but as the moment Albania’s highest court chose perception over proof — and called it justice.

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.