TOWARDS JUSTICE Analysis of Civil Proceedings in the District Courts
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TOWARDS JUSTICE Analysis of civil proceedings in the district courts "The Organization for Security and Co-operation in Europe (OSCE) works for stability, prosperity and democracy in 56 participating states through TOWARDS political dialogue about shared values and through practical work that makes a lasting difference." TOWARDS JUSTICE - TOWARDS JUSTICE Analysis of civil proceedings in the district courts Analysis of civil proceedings in the district courts Analysis of civil proceedings Organization for Security and Co-operation in Europe Presence in Albania The Organization for Security and Co-operation in Europe ISBN: 978-92-9235-239-4 Presence in Albania Sheraton Tirana Hotel & Towers, First floor Organization for Security and Co-operation in Europe “Italia” Square Presence in Albania 1010 Tirana - Albania www.osce.org/albania 9 789292 352394 2012 TOWARDS JUSTICE Analysis of civil proceedings in the district courts TOWARDS JUSTICE Analysis of civil proceedings in the district courts TOWARDS JUSTICE Analysis of civil proceedings in the district courts Published by the Organization for Security and Co-operation in Europe Presence in Albania Sheraton Hotel 1st Floor, Sheshi “Italia” 1010 Tirana Albania www.osce.org/albania © OSCE Presence in Albania, 2012 All rights reserved. Material contained in this publication may be freely quoted or reprinted, provided credit is given and a copy of the publication containing the reprinted material is sent to OSCE. Any other use of this material, including but not limited to commercial use or the development of derivative works, shall require the express written permission of the OSCE. Authors: Jo Faafeng Maya Goldstein Ama Kraja Fiorentina Azizi ISBN 978-92-9235-239-4 Cover: Rubin Laja Designed by: Rubin Laja and Algert Guri Printed in Tirana by: AlbDesign 4 TOWARDS JUSTICE Table of contents Table of contents 3 Foreword 7 Summary 8 Summary of Statistics 13 Table of Abbreviations and Acronyms 17 Introduction 18 CHAPTER I. THE RIGHT TO TRIAL WITHIN A REASONABLE TIME 1 Introduction 21 2 Legal framework 22 2.1 International law and recommendations 22 2.1.1 Responsibility to ensure sufficient funding, resources and organisation of courts 22 2.1.2 Responsibility for conduct of the parties 24 2.1.3 Assessing compliance with the right to a timely trial 24 2.1.3.1 Calculation of the length of the trial 24 2.1.3.2 Elements in assessing the timelines of a trial 25 2.1.4 Specific provisions on postponement of hearings 27 2.2 Albanian law 29 2.2.1 Generally on the right to a trial within reasonable time 29 2.2.2 Summons and notification of legal documents 30 2.2.3 Consequences of non-appearance of parties and other trial participants 31 3 Procedural delays in first instance courts 33 3.1 Introduction and statistics 33 3.1.1 Length of observed trials 34 3.1.2 Length of procedurally ceased trials 34 3.1.3 Number of hearings in each trial 35 3.1.4 Number of non-productive hearings 35 3.2 Problems with summoning parties to hearings 35 3.2.1 Observed problems 35 3.2.2 Remedies 38 3.3 Time consuming preparatory phase 43 3.3.1 Observed problems 43 3.3.2 Remedies 45 3.4 Failure of trial participants to appear, reluctant exercise of sanctioning power by the courts and insufficient sanctioning powers 50 3.4.1 Observed problems 51 3.4.2 Remedies against absent trial participants 53 3.5 Insufficient official statistics 60 3.5.1 Observed problems 60 3.5.2 Remedies 62 5 TOWARDS JUSTICE Analysis of civil proceedings in the district courts 3.6 Case Studies 63 4 Delays and other problems in delivery of written reasoned judgments 68 4.1 International law and recommendations 68 4.2 Albanian law 69 4.3 Observed problems 69 4.4 Remedies 72 CHAPTER II. TRANCPARENCY OF COURT PROCEEDINGS 1 Introduction 74 2 Legal framework 75 2.1 International law and recommendations 75 2.1.1 International instruments 75 2.1.2 Access to the trial schedule 76 2.1.3 Access to court buildings and courtrooms 76 2.1.4 Access to court decisions 77 2.1.5 Proper maintenance of the trial minutes and case file 78 2.2 Albanian law 78 2.2.1 Public access to the court buildings and the court rooms 78 2.2.2 Access to the trial schedule 79 2.2.3 Access to court decisions 79 2.2.4 Maintenance of and public access to the case file 80 3 Public access to court hearings 81 3.1 Access to the trial schedule: information on date and place of the hearing 81 3.1.1 Observed problems 81 3.1.2 Remedies and recommendations 84 3.2 Public access to court buildings and courtrooms 85 3.2.1 Observed problems 85 3.2.2 Remedies 85 4 Public access to court records and files 86 4.1 Proper maintenance of trial minutes 86 4.1.1 Observed problems 86 4.1.2 Remedies 90 4.2 Proper maintenance of case files 91 4.2.1 Observed problems 91 4.2.2 Remedies 92 4.3 Public access to court decisions 94 CHAPTER III. ACCESS TO JUSTICE 1 Legal framework 95 1.1 International law and recommendations 95 1.2 Albanian law 98 1.2.1 Introduction 98 6 TOWARDS JUSTICE 1.2.2 Information about time and place of hearings 98 1.2.3 Access to the venue of the hearing 99 1.2.4 Access to the court records and content of the case files 99 1.2.5 Court fees 100 1.2.6 Procedural rights during proceedings to remove capacity to act 100 2 Findings and recommendations 101 2.1 Introduction 101 2.2 Access to the venue of the hearing 102 2.3 Access to case files 104 2.4 Court fees 106 2.5 Written submissions not circulated to the other party 107 2.6 Procedural rights in proceedings to remove the capacity to act 107 ANNEXES Annex 1 Statistics on monitored civil cases 109 Annex 2 List of recommedations 127 Annex 3 Contact details forms 129 7 TOWARDS JUSTICE Analysis of civil proceedings in the district courts 8 Foreword TOWARDS JUSTICE Foreword by H. E. Ambassador Eugen Wollfarth Head of the OSCE Presence in Albania Dear reader, I am delighted to be able to present the OSCE Presence in Albania’s report Towards Justice. Analysis of civil proceedings in the district courts. Its aim is to assess the civil justice system for compliance with international fair trial standards and to recommend measures to further increase its efficiency, fairness, transparency and accessibility. A well-functioning civil justice system is a key guarantor for the rule of law and respect of human rights. Legal rights are of value for an individual only when they can be asserted in a court of law and when this court renders correct justice, in due time and in a way that inspires public trust. Justice sector reform sometimes focusses on criminal justice alone, while civil and administrative proceedings are then overlooked. This does not reflect the importance of solving civil disputes for the general prosperity and wellbeing of the people. This particularly applies in Albania, where numerous open property issues prevent important developments. Inheritance and child custody disputes are other examples that often have major importance for the persons involved. Settling such disputes, with finality and confidence, is important for all parties to move on with their lives. A proper civil justice system is furthermore a necessary condition for a functioning market economy. There is a correlation between a country’s economic situation and the quality of its civil trials. This publication is intended to contribute to improving the quality of such trials. The findings in this report are primarily based on observations made in more than 140 court hearings in four district courts. This approach provides a unique insight into the daily practice of the courts - including the immanent challenges - which goes beyond of what would become visible from reviewing the procedural legislation alone. The collection of information and the analysis contained in this report would not have been possible without the encouragement and active support of the Ministry of Justice, the High Council of Justice, the judges and court staff. I would like to thank all involved for their kind assistance. I hope that all actors in the civil justice sector, including the Assembly, the Ministry of Justice, the High Council of Justice, the judges and lawyers, will find this report useful. H. E. Ambassador Eugen Wollfarth Head of the OSCE Presence in Albania 7 TOWARDS JUSTICE Analysis of civil proceedings in the district courts SUMMARY General remarks The Albanian judiciary has seen vast improvements over the last two decades, both in terms of legislative and organisational changes. There is, however, still room for improving the efficiency, transparency and accountability of the judiciary so that it fully meets international standards. Since 2003, the OSCE Presence in Albania (the Presence) has assisted the Albanian authorities in its justice reform efforts inter alia by assessing whether court proceedings are in compliance with international fair trial standards. Based on observation of court hearings, consultation of court files and interviews, the Presence has identified procedural and practical issues and has elaborated a number of recommendations to tackle these problems. In the past, the Presence assessed criminal trials in the first instance and appeals courts and the findings were presented in two reports, published in 2006 and 2007 respectively. In the report at hand, Towards Justice, the Presence focuses on civil trials in the first instance.