Lawyer of defendant and his role in the criminal process from the viewpoint of the European Convention on Human Rights and the Albanian criminal procedural legislation

Klodjan Skenderaj Sokol Mëngjesi
Abstract:
A guarantee for real ensuring of defendant’s rights is the qualified legal assistance by the side of the lawyer, chosen or assigned by the proceeding body. Providing legal protection to defendants was an important achievement in the long and difficult efforts to democratize the criminal proceedings. It was initially achieved in developed countries which promulgated the fundamental rights and freedoms and on this basis the major laws of activity of justice’s bodies were enforced. The role of lawyer in the criminal proceeding gradually increased and became an important factor in the fight against violations of law and injustice. The lawyer became a respected procedural figure, standing in front of prosecution, as the opposing party able to develop a cross-examination and to influence in a fair solution of case. However in practice, it is not rare the violation of rights of defendants by proceeding organs. So, it is right to make this question: What will be done with their rights and how will they be protected? In practice there were different opinions in terms of guaranteeing the rights of these defendants and how far the rights of lawyers of the defendants are extended. This is the reason why this paper will bring in attention the position, procedural guarantees of lawyers, the actions that can take and the exercise of their main rights in defending the interest of defendant, taking into account the main phases of criminal proceedings. Special attention will be devoted to case law of European Court of Human Rights (ECHR) in terms of guaranteeing the rights of defendants, the orientations of the Albanian Constitutional Court and that of Supreme Court. At the end, this paper will reach in some conclusions through which proposals and amendments will be made to the code of criminal procedure, starting from the principle that the rights and procedural guarantees of defendants should be guaranteed at the maximum, because it’s the only way to achieve the highest degree of democratization of the criminal proceedings.

Keywords:
code of criminal procedure; the Constitution; the defendant; the defendant’s lawyer; the defendant tried in absentia; the European Convention on Human Rights; preliminary investigations; the appeal of the defendant; in the first trial; trial in Appeal Court; trial in Supreme Court; human rights

Full text available in PDF: Academicus-MMXIV-9-200-212.pdf

Digital Object Identifier (DOI): http://dx.medra.org/10.7336/academicus.2014.09.13

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Lawyer of defendant and his role in the criminal process from the viewpoint of the European Convention on Human Rights and the Albanian criminal procedural legislation by Klodjan Skenderaj, Sokol Mëngjesi is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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