Was it truly created in Her own image? Constituting judicial independence through Europeanization in Albania

The rise of the liberal constitutional democracy and the model of constitutional adjudication throughout Europe, especially in the enthusiastic years after the fall of totalitarian regimes, combined with the empowerment of the judiciary (judicialization of politics) has led by default to enhanced debates on the independence of judiciary and the accountability thereof. As models spread and ideas proliferate, the research in comparative constitutional law focused on the shared sense of transnational constitutional identity, legal transplants and cross-fertilization of jurisprudence between international courts and domestic courts (Slaughter, 1995), while in the political studies and sociology of court, neo-institutionalism as a historic and sociological concept on judicial independence (Burbank and Friedman, 2022) and path dependency re-bloomed (Graver and Čuroš, 2021) (Schmidt, 2018). This being said, it is the aim of this paper to see judicial independence with the lenses of a pre-conceived notion for export in pre-accession countries with a totalitarian past. This paper is based on the presumption that, while in the first and second waves of judicial reforms, the EU has served as a normative power for accession countries, it has throughout time turned into a constitutive power in the third wave of judicial reforms in South Eastern Europe, illustrated through the recent case of Albania. A remarkable international presence in shaping judicial reform has unveiled itself present in the form of bodies mentioned in the constitution in this specific context since 2016, defying the notions of legitimacy it itself proclaims, with the aim to promote and establish the cornerstone of the rule of law: judicial independence. The study aims to explore in what ways, to what extent and with what impact have European judicial design standards, paradigms, and especially actors contributed to conceptualize, constitute and shape the notion of judicial independence, judicial culture and transnational judicial identity in the context of Albania. It offers a combination of normative and descriptive epistemology of how judicial independence is constituted in a context distrustful of its own self on the application of the notions of an independent judiciary as offered from above. It aims to offer a contextualized, dynamic and systemic approach to the transformation effect of the European intervention into the judiciary in terms of independence and accountability, impartiality and the judicial culture, taking Albania as a case study. Elements of institutionalization, including patterns of path-dependency are introduced to the systemic legal-normative and jurisprudential analysis, not only to observe the streamlines of power that operationalize this notion in practice, but also to attempt to ‘fairly’ represent the dialectic and dynamics between norms, structures and behavior. The idea is to capture the diffusion of international constitutional legal norms towards the judicial structures in the chosen context, taking into account the actual state of interdependency between norms and structures beyond the internalization narrative, introducing judicial resistance as ownership deprived of abuse.