Judicial Norm-Creation Beyond Legislative Intent: The Albanian Courts’ Expansive Interpretation of the Domestic Violence Act After the Amendments

This article examines a significant yet underexplored tension within Albanian domestic violence law: the divergence between the explicit requirements of Law No. 11/2026, On the Prevention and Protection against Violence against Women and Domestic Violence, and the judicial practice of courts of first instance. Following legislative amendments that narrowed the scope of protected persons by introducing a cohabitation requirement—namely, that certain categories of relatives must share the same household in order to qualify for legal protection—Albanian courts have continued to issue protection orders in cases where this statutory condition is not satisfied. The article argues that such judicial practice effectively creates an extra-statutory legal norm contra legem, thereby exceeding the permissible limits of judicial interpretation. Through a systematic doctrinal analysis of the relevant legislation, comparative examination of obligations arising under the Istanbul Convention and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and a critical assessment of judicial reasoning, the article demonstrates that, although the courts’ protective approach may be normatively commendable, it lacks a sufficient basis in positive law. The article further contends that the existing gap between legislative intent and judicial application raises important concerns regarding legal certainty, the separation of powers, and the rule of law. It concludes by offering recommendations directed both to the judiciary and to the Albanian legislature, aimed at ensuring coherence between domestic legal norms and Albania’s international obligations in the field of protection against domestic violence.