Organization for Security and Co-operation in Europe Presence in Albania Legal Sector Report For Albania 2004 © OSCE Presence in Albania, 2004. PREFACE The Rule of Law is the backbone of democracy. When actions of the state are based on these principles, the population is more likely to have confidence in authorities and to work with each other as members of one society. Absent the Rule of Law, people function very individualistically. The Rule of Law pre-supposes a functioning legal sector that provides guidance on the basic rules governing social organisation and helps to ensure their application. For these reasons, and generally to contribute to the Rule of Law, the OSCE has prepared this report on the current state of eleven elements of the Albanian legal sector. Public Confidence in the Legal Sector Must Improve The Legal Sector Report shows that public confidence in the Albanian legal sector is low. Such public confidence is necessary for economic development, as it creates a climate where investors are secure that they are on a fair playing field, where banks have security that delinquent loans can be retrieved, and where people pay their taxes, which in turn serve for improving infrastructure. The legal sector is a key actor in ensuring that culture develops, as it ensures that basic rules for television, schools, or publishing are enforced. With a non-functioning legal sector, people generally feel insecure. The key element in the creation of public confidence is the belief that rules agreed to in a democratic manner are followed by the entire society and by state structures. One chapter in this report is on the Office of the Bailiff in Albania. We find that citizens throughout the country have considerable difficulties in enforcing court judgements. Often bailiffs simply do not have the necessary resources; sometimes the legal framework is faulty. Most disturbing, however, is that citizens who win monetary judgements against the Albanian state often find it especially difficult to execute their title. This violates the principle that the state and those exercising power on its behalf must obey rules just as any citizen must. We also see several methods used by immediate superiors to prevent prosecutors from carrying out their duties in accordance with the law. They argue that they can be prevented in their career advancement if they refuse to sign documents they consider to be improper. They complain of harassment through unreasonable oversight of their routine duties. Prosecutors claim that important cases are often assigned outside official assignment structures. As long as state employees in key functions do not feel secure in their positions when they carry out their duties in a conscientious manner, and as long as official routines are easy to circumvent, the public will not have confidence in authorities. Albanian notaries frequently are responsible for poorly drafted contracts or worse, for false certification of property ownership or transfers. This action leads to numerous court cases in spheres where security is crucial for economic development, for until title to property is reliable, investors will choose other places to locate their assets. The Legal Sector Must Operate More Transparently ii © OSCE Presence in Albania, 2004. Transparency is a major issue in this report. When an actor in the legal sector behaves in a transparent manner, people will be far more likely to have confidence in that actor. A system that is transparent must necessarily seek to eliminate corrupt elements. It should be noted that corruption is a phenomenon in which some people become involved involuntarily. For that reason, it is important for the legal sector to protect its participants against involuntary corruption. For those who are voluntarily corrupt, the legal system must apply sanctions in a strict and uniform manner. The legal sector in Albania possibly has a reputation that is worse than it deserves. This results from people not understanding how institutions function and thus becoming suspicious. We have suggested improvements with a view to eliminating distrust. In a transparent system, corruption is considerably more difficult than in a nebulous one; when people understand processes they are less likely to assume that they are corrupt. The Purpose of this Report The ultimate goal of the Legal Sector Report is to help establish a transparent legal system, working for and trusted by the Albanian people. Therefore each chapter gives an overview of what the OSCE considers priorities in legal sector reform. Each chapter also seeks to explain how the various parts of the legal sector are meant to function from a legal point of view. This is meant primarily for those working in other state institutions and for international organisations. It is hoped that these descriptions will help these organs in their contact with the legal sector. The OSCE intends to develop projects to address several of the recommendations made in this report. It is hoped that the Albanian authorities and other international organisations will also consider the recommendations important and will develop projects where the OSCE does not have the resources to act. Nonetheless, it should be noted that the development of projects likely will require additional research. The Legal Sector Report is a long document even without great details on the exact implementation strategies for various legal sector reforms. It is hoped, however, that the Legal Sector Report will serve as a catalyst for change in that it gives ideas for change and the introductory information necessary for developing useful projects. iii © OSCE Presence in Albania, 2004. Acknowledgements The OSCE Presence in Albania would like to express its gratitude to the institutions that supported the preparation of this Legal Sector Report. We thank the Office of the Prosecutor General, and in particular Mr. Theodhori Sollaku, for their readiness to assist our office with any information needed for the purposes of the report and the professionalism shown. Special thanks go also to the legal advisor of the Prosecutor General, Mr. Koli Bele, the Head of the Foreign Relations Department, Mr. Ardian Visha, the Head of the Personnel Office, Mr. Kasem Berberi. Our gratitude also goes to the General Director of Free Professions in the Ministry of Justice, Mr. Gjin Niklekaj, the President of the National Chamber of Notaries, Mrs. Shpresa Kurti and all the notaries who helped with their information. Mr. Ardian Dvorani, the General Director of Codification in the Ministry of Justice, has also been helpful with information about legislative plans. In the early phases of this project we received valuable assistance from former Deputy Minister of Justice Sokol Hazizi. Thanks also must be extended to the People’s Advocate, Mr. Ermir Dobjani, to his Advisor, Mr. Artur Lazebeu and to all the staff of the People’s Advocate Office for their very helpful assistance. Many members of the judiciary have given us valuable ideas. They are too numerous to list individually, but we express our gratitude for the countless hours they have devoted to assisting with this project. Special thanks do, however, go to Chief Justice Thimjo Kondi, Vice-Chair of the High Council of Justice, Ilir Panda, and Appellate Judges Gjovalin Pernoca and Edmond Islamaj for their general willingness to discuss a wide range of issues related to the legal sector. The Director of the Magistrates' School, Mrs. Ariana Fullani, has always been especially gracious with her assistance related to any inquiries. Finally, our appreciation is extended to Mr. Maks Haxhia, Head of the National Chamber of Advocates, and to Ms Denisa Rreli, Co-ordinator of the Tirana Chamber of Advocates. iv © OSCE Presence in Albania, 2004. TABLE OF CONTENTS PREFACE………………………………………………………………………………..ii ACKNOWLEDGEMENTS…………………………………………………………….iv ABBREVIATIONS…………………………………………………………………..xviii CHAPTER I. THE COURTS ……………………………………………1 I. INTRODUCTION …………………………………………………………...1 A. Historical Overview …………………………………………………………………...1 B. Structural Overview of Court Reform …………………………………………………2 II. LEGAL STRUCTURE ……………………………………………………. .2 A. Ordinary District and Appellate Courts ……………………………………………….2 1. Regular First Instance Courts .………………………………………………..3 a. Number of Judges ……………………………………………………...3 b. Appointment of Judges …………………………………………………4 2. Regular Courts of Appeals …………………………………………………….4 B. Special Courts …………………………………………………………………………5 1. The Courts for Serious Crimes ………………………………………………...5 2. Military Courts ………………………………………………………………...6 3.The Electoral College…………………………………………………………..7 C. General Rights and Duties of Judges ………………………………………………….8 1. Division of Courts and Assignment of Cases ………………………………….8 2. Standard Procedures and Regulations ………………………………………...8 3. Performance Evaluation and Discipline ……………………………………….9 D. The High Court ………………………………………………………………………10 1. Constitutional Provisions …………………………………………………….10 2. The High Court Law ………………………………………………………….11 E. The Constitutional Court ……………………………………………………………..12 1. General Constitutional Requirements ………………………………………..12 2. Jurisdictional Questions ……………………………………………………...13 3. Organisation of the Court ……………………………………………………14 III. INDEPENDENCE OF THE COURTS …………………………………...14 IV. STATISTICS ABOUT THE OPERATION OF COURTS ……………..15 A. The Ordinary Courts …………………………………………………………………15 B. The Constitutional Court ……………………………………………………………..16 v © OSCE Presence in Albania, 2004. V. THE STATE OF THE JUDICIARY ……………………………………..18