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Ilir Beqaj: Should the right to a stopwatch defense be limited?

2026-06-14 14:21:44Pikëpamje SHKRUAR NGA ILIR BEQAJ
Ilir Beqaj

"Lovers" of the so-called "Justice Reform" continue to defend the thesis that the Reform is the right one, but there may still be problems with its implementation.

That the Justice Reform has witnessed spectacular failures is an indisputable fact.

That a reform, after 10 years of implementation, needs evaluation, review, and correction does not have to be taboo.

Drafters or political supporters are the first to initiate a process of analysis and possible corrections.

Starting the analysis not from improper implementation, but primarily from errors in the approved provisions.

Such is Article 426/ai of the Code of Criminal Procedure, “Judicial review in the court of appeal”, added by Law No. 35/2017. Point 6 of this article stipulates: “The court may order the parties to present their claims in a summary manner, also setting the time

considered sufficient. The parties may not present at the hearing reasons other than those raised in the appeal.”

This provision provides that the court may order the parties to present their claims in a summary manner and may set a time limit deemed sufficient. However, the word “may” cannot be understood as a free authorization to impose general or unreasonable restrictions. It is a procedural power that must be exercised only within the limits of the Constitution and the ECHR.

In a criminal appeal, the limitation of speaking time is not simply a matter of administrative procedure. The appeal is the second and, in practice, the last instance where issues of fact, evidence, guilt, legal qualification and sentence can be examined. For this reason, any limitation of the defence's speech directly affects the right to be heard, the right to effective protection and the right to a fair trial.

The constitutional basis is Article 42 of the Constitution, which guarantees that freedom, property, and rights recognized by the Constitution and by law cannot be violated without due process of law.

Equally important is Article 17 of the Constitution, according to which the limitation of fundamental rights and freedoms may only be made by law, for a public interest or for the protection of the rights of others. This limitation must be proportionate and may not violate the essence of the right. Also, limitations imposed by law may not exceed the limitations provided for in the ECHR.

When the court tells the defense “you have 10 more minutes,” without explaining why 10 minutes is sufficient for the specific case, a serious constitutional problem arises. The question “why 10 minutes and not 8 or 12?” is not a rhetorical question. It relates to the control over judicial discretion. If the court does not provide a reason, the limitation is not controllable and risks being arbitrary.

To be in accordance with the Constitution, criminal appeal must not conflict with:

– Article 31 of the Constitution, which guarantees the rights of the defendant in the criminal process, including the right to defense;

– Article 33, which relates to the right to be heard;

– Article 43, which guarantees the right to appeal; and

– Article 142, which requires the justification of judicial decisions.

The same standard is established by Article 6 of the ECHR.

Article 6 §1 guarantees the right to a fair trial, while Article 6 §3/b and §3/c guarantee, in criminal matters, the right to adequate time and facilities for the preparation of the defence and the right to defend oneself in person or through legal assistance.

Likewise, Article 2 of Protocol No. 7 to the ECHR guarantees the right of a convicted person to have his guilt or sentence reviewed by a higher court. This right may be regulated by law, but it cannot be denied de fscto. The appeal may not be transformed into a procedure where the party is heard only formally and without a real opportunity to develop his defence.

The time limit on appeal can only be compatible with the Constitution and the ECHR if it meets certain minimum conditions:

– be individualized according to the specific case;

– be justified;

– be proportionate to the complexity of the case;

– not to hinder the presentation of the essence of the defense;

– allow for reply when necessary; and

– be reflected in the minutes, especially when the party objects to the restriction or requests additional time.

The court has the right to avoid repetitions, delays and departures from the subject of the appeal. But this competence cannot be turned into a means to limit the defense. “Summary” does not mean “truncated”. The administration of the hearing cannot prevail over the right to due process.

Point 6 of Article 426/a should not be interpreted independently, but closely and in harmony with Articles 17, 31, 33, 42, 43 and 142 of the Constitution, as well as with Article 6 of the ECHR and Article 2 of Protocol No. 7.

Justice reform must be measured, first and foremost, by the quality of the guarantees it provides to citizens in the face of the punitive power of the state. Justice is not established by limiting the defense to minutes, but by guaranteeing that it is heard fully, effectively, and without arbitrariness.


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