Committee of Ministers Secretariat Du Comite Des Ministres

SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Clare Ovey Tel: 03 88 41 36 45

Date: 02/11/2016 DH-DD(2016)1188

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1273 meeting (6-8 December 2016) (DH)

Item reference: Updated action plan (20/10/2016)

Communication from Albania concerning the Luli and others group of cases against Albania (Application No. 64480/09)

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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1273 réunion (6-8 décembre 2016) (DH)

Référence du point : Plan d’action mis à jour

Communication de l’Albanie concernant le groupe d’affaires Luli et autres contre Albanie (Requête n° 64480/09) (anglais uniquement)

UPDATED ACTION PLAN

Execution of the judgments of the European Court of Human Rights Luli and others v. Albania (64480/09, 64482/09, 12874/10, 56935/10, 3129/12, 31355/09), judgment of 01/04/2014, final on 01/07/2014 Marini v. Albania (3738/02), judgment of 18/12/07, final on 07/07/08 Bici v. Albania (5250/07), judgment of 03/12/2016, final on 03/03/2016 Gjonboçari and Others v. Albania (10508/02), judgment of 23/10/2007, final on 31/03/2008

I. CASE SUMMARY

1. These cases concern administrative and judicial disputes before various administrative bodies and various levels of jurisdiction and relate to excessive length of these proceedings and absence of an effective remedy. 2. Case “Luli and Others v. Albania” originated in six applications, and alleged that applicants’ right to fair trial was breached on account of the length of proceedings before the Agency for Restitution and Compensation of Property and thereafter before the domestic courts. 3. The European Court1 found that the length of the proceedings was to be attributed to the repeated referrals for fresh examination by the administrative body, which revealed “a serious deficiency in the Albanian legal system”. The Court recalled that it was for the Contracting States to organize their legal systems in such a way that the competent authorities can meet the requirements of Article 6 of the Convention, including the obligation to hear cases within a reasonable time and, where necessary, join them, suspend them or reject the further institution of new proceedings. Under Article 46 the Court called upon the Albanian authorities to introduce a remedy in respect of the delays in the proceedings (violation of Article 13). 4. Case “Marini v. Albania” concerns the excessive length of two sets of civil proceedings, one of which lasted from 1993 to 2003 and the other from 1997 to 2006. The Court observed that the case was repeatedly referred back for fresh examination held that, since remittal had been ordered because of errors committed by the lower courts, the repetition of such orders within the same set of proceedings revealed a serious deficiency in the judicial system. 5. This case also concerns a violation of the applicant’s right of access to a court, the Constitutional Court having failed to pronounce on the applicant’s appeal due to a tied vote. (violation of Article 6§1). The case further concerns the failure to enforce a final decision of the Plenary State Arbitration Commission given on 07/07/1993, ordering the state to respect its partnership commitments in a joint venture company set up with the applicant in 1991. This judgment remained unforced for 10 years until

1 § 91 “Luli and others v. Albania”; § 145 “Marini v. Albania;

the joint venture was wound up in 2003 (violation of Article 6§1). 6. Finally, the case concerns a violation of the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1) in that the state’s refusal to honor the company’s obligations, its failure to enforce decisions made by the courts in the applicant’s favor and the length of the proceedings rendered the applicant’s shareholding invalid and the applicant unable to receive the expected profits. This in conjunction with the manner in which the proceedings were conducted and the resulting uncertainty as to the applicant’s position in relation to his ownership of the company upset the “fair balance” between the public interest and the applicant’s rights. 7. Case “Bici v. Albania” concerns the length of proceedings before the Commission for Restitution and Compensation of Properties which lasted for 11 years, 9 months and 18 days before one level of jurisdiction (violation of Article 6§1). 8. Case “Gjonboçari and Others v. Albania” concerns excessive length of proceedings before the Agency for Restitution and Compensation of Property and before the domestic courts (violation of Article 6§1). Furthermore, the Court found a violation on account of the failure to enforce the final judgment of 6 March 2003 (violation of Article 6§1). The Court finally concluded that the applicant had no domestic remedy whereby he could enforce his right to a “hearing within a reasonable time”, as guaranteed by Article 6 § 1 of the Convention (violation of Article 13).

II. INDIVIDUAL MEASURES

9. Luli and Others v. Albania (64480/09, 64482/09, 12874/10, 56935/10, 3129/12, 31355/09) i) Payment of just satisfaction

The European Court awarded the the amounts indicated below. The other applicants did not request any just satisfaction. i.1) Luli and others v. Albania nos. 64480/09 and 64482/09

Pecuniary damage Non Pecuniary damage Costs and expenses Total

3000 Euro 1500 Euro 4500 Euro Paid on: 25.02.20152

2 Paid through Council of Ministers Decision no. 164, dated 25.02.2015, published in the Official Gazzette no. 30 of 04.03.2015

i.2) Dushollari v. Albania no. 56935/10

Pecuniary damage Non Pecuniary damage Costs and expenses Total

0 Euro 500 Euro 500 Euro Paid on: 25.02.20153 ii. Other individual measures

The applicants, on 11.02.2015, have addressed the Durrës District Court with a request for “Amendment of decision no. 166, dated 28.02.2011 of the ARCP Tirana…”, “Amendment of decision no. 30, dated 16.05.2012, of the ROARCP Durrës…”, “The partial quashing of decision no. 738, dated 19.12.2003 of the former CRCP Durrës…”. The case is currently under judicial review before this court. The trial court was informed of violations found by the European Court and is are aware of the necessity to bring the proceedings rapidly to an end to comply with standards of Article 6 of the Convention.

The Albanian Government will update the Committee of Ministers on the outcome of the proceedings, as soon as the Durrës District Court issues a judgment in the case.

10) Marini v. Albania (3738/02), judgment of 18/12/07, final on 07/07/08

i) Payment of just satisfaction

The European Court awarded the applicant just satisfaction for pecuniary and non- pecuniary damage.

Pecuniary damage Non Pecuniary damage Costs and expenses Total

330 000 Euro 5700 Euro 335 700 Euro Paid on:10.10.2008

ii) Other individual measures

The proceedings are closed and the joint venture company ceased to exist in 2003. No further individual measure therefore appears necessary.

3 Idem.

11) Bici v. Albania (5250/07)

i) Payment of just satisfaction

The European Court awarded the applicant just satisfaction for non-pecuniary damage, which is still in the process of payment.

Pecuniary damage Non Pecuniary damage Costs and expenses Total

7000 Euro 850 Euro 7 850 Euro Paid on: In process

ii) Other individual measures

The proceedings in the applicant’s case ended on 14 July 2008.

12) Gjonboçari and Others v. Albania (10508/02)

i) Payment of just satisfaction

The European Court awarded the applicants just satisfaction for non-pecuniary damage.

Pecuniary damage Non Pecuniary damage Costs and expenses Total

49 000 Euro 49 000 Euro Paid on: 20.06.20084

ii) Other individual measures

Following the previous judicial procedures, the case is currently under review before the Vlora Court of Appeal. The trial court was informed of violations found by the European Court and is are aware of the necessity to bring the proceedings rapidly to an end to comply with standards of Article 6 of the Convention.

The Government will update the Committee of Ministers on the outcome of the proceedings, as soon as the Appeals Court will hold a judgment on the case, at the latest within 6 months.

4 Paid through Council of Ministers Decision no. 748, dated 04.06.2008.

III. GENERAL MEASURES

13. On 27th of November 2014, the Parliament of the Republic of Albania issued Deci- sion no. 96/2014, “For the Establishment of the special Parliamentary Committee on the justice system reform”. The Special Committee has as object of its activity: - The analysis of the current state of the organization and functioning of the justice system, the identification of the problems and needs for improvement, in collabo- ration with the Ministry of Justice and the comprehensive discussion with the institutions of the justice system, domestic and international experts, other entities, stakeholders and the public. - The drafting a strategic document for the reform objectives in the justice system, based on the analysis of the current situation of the organization and functioning of the justice system. - The proposal for approval of a comprehensive package of draft laws necessary for the reform of the legislation, which regulates the organization and the functioning of institutions of the justice system, including the constitutional ones, drafted with the input and support of the judiciary, local and international experts, other interested parties and the public. In the quality of international experts, the committee will invite to participate rep- resentatives of the European Commission (Euralius Mission), United States of America (USAID/ OPDAT), the Council of Europe (Venice Commission), the OSCE Presence in Albania and assistance missions on justice issues of the different diplomatic missions in Tirana etc. - This justice reform package is relevant to tackle the sources of the various violations found by the Court in these cases. The concrete improvements on each problem are presented below, violation per violation.

Update

14. On 06.10.2016, the Parliament of Albania passed a substantial number of laws within the Justice Reform package, among which: Law “On the governing organs of the justice system”; Law “On the status of judges and prosecutors in the Republic of Albania”; Law “On the organization and functioning of the Prosecution in the Republic of Alba- nia”; Law “On the organization of judicial power in the Republic of Albania”; Law “On the organization and functioning of institutions in the fight against corruption and organized crime”; Law "On some amendments to Law no. 8577, dated 10.02.2000 "On the organization and functioning of the Constitutional Court of the Republic of Albania".

These Laws will have an impact upon the speediness of the conduct of judicial proceedings in Albania, see below for more details.

15. The Government of Albania will keep the Committee of Ministers of the Council of Europe updated on the further developments as regards the implementation and the impact of the above mentioned amendments on practice. 16. The issue of the expedition of administrative procedure bore the Commission for Res- titution or Compensation of Properties is followed under the Manushaqe Puto / Driza group of cases

A) VIOLATIONS OF ARTICLES 6§1 (EXCESSIVE LENGTH OF PROCEED- INGS)

17. The European Court in the abovementioned cases found protracted length of proceedings due to largely repeated remittals resulting from errors committed by lower courts, revealed a serious deficiency in the judicial system5. 18. Regarding the excessive length of administrative and judicial proceedings, the Alba- nian legal framework has improved since the abovementioned cases have been examined by the European Court, concretely: The Code of Civil Proceedings6, aiming to improve the administration of justice, through amendments on article 28 and unifica- tion of jurisprudence7 has improved the standard for judicial proceedings, concerning the summoning of parties to trial and ensured reasonable length of proceedings pursuant to Article 6 of the European Convention on Human Rights8. 19. Furthermore, Article 4679 and 467/a10 of the Code of Civil Procedure, with the amendments on the Code with Law no. 122/2013, provide for the procedures to be followed in case of retrial, the cases that can be remitted for retrial, the procedures to be followed by the lower courts, and the limitations in the number of orders of retrial by part of the Appellate Courts. Additionally, in case of retrial, the lower courts are obliged in examining and reviewing the case only as so far as the instructions set by the higher court in the order for retrial, and not beyond the scope of the latter. This creates an ease in the procedures of the court, without undue bureaucracies and unnecessary procedures.

5 Cases “Luli and others v. Albania”; “Marini v. Albania; 6 amended by Law no.8812 date 17.05.2001 7 Constitutional Court decision no.15/2007 and 22/2007 8 Article 28 of Code of Civil Proceedings foresees that “The court must be expressed to all requirements set in the lawsuit, within its limits, by conducting a fair, independent and impartial judgment within a reasonable time”. 9 Order for retrial - The Court of Appeal shall revoke the decision of the First Instance Court and shall order the retrial of a case when… […]. The First Instance Court during the retrial is obliged to follow the decision of the Court of Ap- peal regarding any procedural decisions decided in that. The court, by means of and intermediate decision, may rule not to carry out specific actions, when, due to new circumstances emerging in the retrial, are deemed to be unnecessary. A separate appeal can be made against this decision. During retrial, invalidities declared in the previous trials, when the respective decisions have not been revoked. Claims must not differ from those accepted by decision of the Court of Appeal, except in circumstances where the claim is associated to the completion of tasks ordered by the Court of Ap- peal. 10 Should the Court of Appeal revoke the decision, it cannot order the return for retrial, but shall examine the case as a First Instance Court. When the decision is revoked due to non-compliance with the duties set by the highest court, without a specific decision taken in accordance with the Article 467 of this Code, the Court of Appeal, upon the request of parties, can transfer the fee of all costs incurred to the relevant adjudicating body.

20. Law no. 49, dated 03.05.2012 "On the organization and functioning of administrative courts and administrative disputes" has established the Administrative Courts11. The establishment of these courts enables the decrease of workload in the district and appeal courts. Thus, it helps the due management of judicial proceedings within a reasonable time. 21. The law provides as the competent court for administrative adjudication of disputes: the Administrative Court of First Instance, the Administrative Court of Appeal and the High Court. It brings forth an innovation in the context of administrative adjudication of disputes concerning the duty of public bodies to present evidence that ena- bled the issuance of acts or performance of administrative actions that have brought about the violation of the legitimate rights of persons. The law provides the principle that the Administrative Courts decides based on written acts and failure of the parties to be present at the hearings does not constitute a reason to dismiss the case. Also, the law provides that every citizen regardless of his/her financial situation has access to administrative justice. 22. Referring to the principle of a fair and prompt trial, within reasonable deadlines, the law sets a deadline of 7 days from the date of submission of the claim for the presiding judge to perform the series of preparatory actions, actions which are documented in the minutes of the preparatory hearing, which is compiled by the court secretary and are signed by the presiding judge. Furthermore, the law sets a limit of no more than 15 days from the date of submission of the claim, (after completion of the necessary preparatory actions) for the issuance of the order for the appointment of the hearing as well as the elements of such order. 23. The review of the appeal to the Administrative Court of Appeal, as a rule, is based on the documents and is conducted in Consultation Chamber. The examination of the case with the presence of the parties is decided upon in situations when the court finds that the debate is needed to evaluate the facts of the case. The appeal level of this court examines the case within 30 days from the date of arrival of the appeal from the court where the appeal was filed. The law also defines a total term of 10 days as the deadline for execution of court decisions, and in special cases it determines a longer period. The final decision the court also must determine the time and manner of execution of the relevant decision.

24. The Supreme Court of Albania: Law no. 151/2013, dated 30.05.2013 “For some changes and additions to Law no. 8588, dated 15.03.2000 “The organization and operation of the Supreme Court of Albania” constitutes an important step toward the strengthening of the domestic legal system efficiency, introduced as a strategic measure to comply with the criteria for integration in the European Union. The law tackles some key elements: first it raises the number of the judges up to 19 members; it aims at a better management of the judicial processes by establishing the administrative

11 This law is widely based on the recommendations of the Committee of Ministers of the Council of Europe Recom- mendation Rec (2004) 20 “on judicial review of administrative acts”; Recommendation Rec(2003)16 “on the execution of administrative and judicial decisions in the field of administrative law”; Recommendation Rec(2001)9 “on alterna- tives to litigation between administrative authorities and private parties” and Recommendation no. R (94) 12 "on the independence, efficiency and role of judges". Furthermore this law is based on the principals raised by the European Convention on Human Rights and the case law of the ECtHR.

branch of the Supreme Court; it deals with the procedure for the assignment of members of Supreme Court, acquiring first a preliminary consultation of the backgrounds of candidates between the President and the Parliament. 25. In the meantime, the Supreme Court has instituted new working methods regarding the number of hearings this court can conduct during the working week, with the introduction of considerable more working hours to the judges in an effort to diminish the backlog of unexamined cases created near this court. It is estimated that the backlog of cases presently awaiting trial is to be reduced and finally eliminated within the next two years. This measure was introduced by the President of the Supreme Court as an initiative to restore the normal working capacities of this court and to contribute to the right of due process and legal certainty that any applicant enjoys.

Update

26. The Supreme Court informed the State Advocature12 that in the framework of the better administration of justice and the number of cases submitted and pending before this court, the President of the Supreme Court issued the new structure, increasing the number of judges (19 in total), followed with the addition of 4 (four) legal aids and 3 (three new employees of the judicial administration. At present, each judge has been appointed two legal aids, with the highest professional standards, totaling in 34 legal aids, which has helped the administration of cases in 2016. 27. With the order of the President of the Supreme Court, the judicial administration implemented working methods which contributed to the chronological review of the court backlog since 2006. Due to these new procedures, all civil cases dating until 2011 have already been reviewed and judged. The court has also employed the issuance of a larger numbers of Unified Decisions, which in turn contributes to the unifi- cation of the practice of courts of all tiers, standardization of justice with the improvement of the case law and the elimination of corruption. 28. The Supreme Court has also implemented the new law on the Administrative Court by setting the Administrative Panel for matters of administrative nature, in this way facilitating the work of the other panels of the court. 29. The statistics for the years 2014 and 2015 are as follows: 2014: Submitted: 6698 cases – Administered: 6448 cases 2015: Submitted: 9051 cases – Administered: 7360 cases Currently, the Supreme Court’s Civil Panel is examining cases pertaining to the year 2014, the Criminal panel is examining cases logged-in in 2015 and the Administrative panel is examining cases logged-in in 2014. A selected number of judges is examining cases of specific nature, under enhanced procedure. 30. Furthermore, pursuant to the amendments made to the Civil procedure Code, through law 122/2013, Article 35, the Court has started a new procedure, under which cases examined under a single judge formation in the first instance courts , are reviewed through a panel of 3 judges at the Supreme Court. This provides for the possibility of

12 Through letter no. 9609/1, dated 06.10.2016 “Rasponse”

engaging a higher number of judicial formations, providing for a better administration of justice and a higher number of cases reviewed and provided a decision.

On the statistics of the Courts of Fact

For the year 2013:

Civil Courts District Courts Submitted: 76,096 cases – Administered: 61,342; Appellate Courts Submitted: 15,890 cases – Administered: 6,589 cases.

Administrative Courts District Courts Submitted: 1,677 cases – Administered: 409 cases; Appellate Courts Submitted: 68 cases – Administered: 14 cases.

For the year 2014:

Civil Courts District Courts Submitted: 62,487 cases – Administered: 49,970; Appellate Courts Submitted: 14,160 cases – Administered: 8,154 cases.

Administrative Courts District Courts Submitted: 22,693 cases – Administered: 18,852 cases; Appellate Courts Submitted: 11,004 cases – Administered: 4,611 cases.

The Albanian Government will provide statistics for the administration of cases by part of the courts of fact, for the years 2015 and 2016, within the forthcoming 6 months.

31. The functioning of the system for civil case management: The Ministry of Justice has paid special attention to enhancing the transparency, reliability and efficiency of the judicial system and executive decision-making bodies through installation of the information technology, by ensuring the digitalization of data. All domestic courts have established an Electronic Database System for the management of civil cases. This system provides a joint network for the domestic courts, by improving communication and access to information on judicial sessions, judicial decisions and the current status of proceedings.

32. A concrete step in the framework of digitizing the justice system is the installation of the electronic portal www.gjykata.gov.al, which provides information on the judicial proceedings and decisions made by the Albanian domestic courts. It enables the transfer of electronic court files and online inspection over the activities of judges. The publication of judicial decisions is another step toward a better transparency and access of information for citizens. The Ministry of Justice frequently upgrades the web- site so as to facilitate access and improve information. 33. The digitalization of judicial system includes also the installation to all courts of audio recording system of sessions. In order to efficiently use the system, the Minister of Justice has approved in June 2012, the Instruction "On the audio record of the judicial hearing", which sets binding rules on audio recording system operation. This technology allows recording of all verbal communication that occurs during hearings as a tool to ensure accurate minutes (literally) of hearings ant helps to efficiently process a fair trial, increasing the transparency and reducing the corruption phenomena. 34. This system has helped not only the courts of fact, but also other organs of the judiciary, as well as monitoring bodies in identifying cases for which there are excessive lengths in the proceedings, identifying the reasons behind the delays, taking the necessary steps to tackle the problem, providing priority to the resolution of these cases, and where necessary be used as a means for the finding of data in the disciplining of magistrates, who violate the norms set by the monitoring body on the length of proceedings.

B) VIOLATIONS OF ARTICLE 13 OF CONVENTION (REMEDY TO COMPLAIN ABOUT LENGTH OF PROCEEDINGS°

35. The European Court found a serious situation of the length of administrative and court proceeding, and foremost there was no remedy available to the applicant in respect of the delays in the proceedings (violation of Article 13). 36. Regarding this matter the Albanian Legislation doesn’t provide any effective remedy. In such condition the Albanian State Advocate, on December 2014 has proposed to the Albanian Prime Minister and Minister of Justice some amendments in Code of Civil Procedure and Code of Administrative Procedure Code. 37. In its proposal the General State Advocate emphasized that further amendments have to be in place, concretely: i) To guarantee in the Code of Civil Procedure or in the Code of Administrative Procedure the right to appeal to the court in case of excessive length of civil and administrative procedures while an administrative case is under process, and/or at a higher court level if the parties claim the overstretch of juridical process, while the case is in process under the judicial level. (Redress of the right against excessive length of proceedings). ii) Revocation / restriction of the right of the highest court to send the case for retrial in lower level courts in cases of procedural infringement. iii) Establishing realistic deadlines for hearings by the Agency of Restitution and Compensation of Property and to guarantee the right to appeal to the Court in case of undue delays.

iv) To guarantee in the Code of Civil Procedure the right to “inquire damages” in case an infringement against the principle of " execution of hearing procedure within a reasonable time” is evidenced. As well as to foresee the punishing measures for those officials / judges who directly or indirectly infringe this principle. 38. For the implementation of the abovementioned measures, the Albanian State Advo- cate, on August 2015 proposed to the Albanian Prime Minister and Minister of Justice a new Draft Law “For the acceleration of procedures and just satisfaction for violation of the right to trial within a reasonable time”13. 39. The Minister of Justice, in October 2015, has suggested that the Draft Law proposed by the Albanian State Advocate, “For acceleration of procedures and just satisfaction for violation of the right to trial within a reasonable time”, due to the specifics and so- lutions that seeks to address, should be part of the work of the “Special Parliamentary Committee on the Justice System Reform”.

Update:

40. The new Draft Law “For the acceleration of procedures and just satisfaction for violation of the right to trial within a reasonable time”, determines the principles and rules to examine cases within a reasonable time, in respect of the principles of the Europe- an Convention of Human Rights, as well as remedial measures for the violation of these principles, through just compensation. 41. Anyone who is a party in a civil or criminal proceeding, has the right, within 6 months from the start of the violation, to request the secretary of the court examining the case, to declare the process as irregular, due to the length of the proceedings, to carry out certain procedural actions and / or provide just satisfaction. 42. In all cases where there is a claim for violation of the rights, due to excessive length of proceedings before a specific court, the higher court within the same jurisdiction, is competent to review the request of the applicant. In cases where the issue is pending before the Supreme Court, the request is reviewed by the Constitutional Court. 43. In cases where the issue is in the execution procedure, the claim is examined by the District Court, competent under the applicable rules. 44. The court accepts the request, when there is a claim of a violation of the right to a speedy trial, as guaranteed by Article 6/1 of the European Convention "On the Protec- tion of Human Rights and Fundamental Freedoms". In determining the violation, the court takes into account the complexity of the case, the object of the dispute, the conduct of the parties and the judge during the trial, as well as any other person connect- ed with the case. When the court finds a violation, it orders, on a case by case basis, the undertaking of further procedural actions by the court examining the merits of the case, and/or awards just satisfaction. 45. The court, in its judgment, indicates the procedural actions to be performed for the acceleration of the procedure and sets deadlines for their fulfillment. In addition, the court may order compensation of damages through payment of an amount of 50.000

13 Official letter no.1498/14 date 03.08.2015

ALL to 150.000 ALL for each year (or month, calculated on a yearly basis) beyond the reasonable time limit. The indications and conclusions of the higher court are binding for the courts examining the case on its merits. 46. For the undue delays in the execution phase, the interested party is to address the court of first instance, of the place of execution of the decision. This court considers the case under the provisions of this Law. In conclusion, the court orders certain actions it deems necessary to accelerate the process to be performed and, where appro- priate, the just satisfaction, as well as the amount.

The Government of Albania will keep the Committee of Ministers of the Council of Eu- rope updated on the further developments regarding this undertaking immediately the competent institutions have evaluated the draft law on its merits.

C) VIOLATION OF ARTICLE 6§1 (LACK OF ACCESS TO COURT)

47. In case Marini v. Albania (3738/02), the Court evidenced a violation of the applicant’s right of access to a court/ the Constitutional Court have failed to hold on the applicant’s appeal and effectively declined to hold a decision (violation of Article 6§1). 48. Law No. 8577, dated 10.2.2000 "On the organization and functioning of the Constitu- tional Court of the Republic of Albania" article 74, foresees that “The Constitutional Court must dismisses individual appeals where the vote is tied or where a proposal fails to attract the majority of votes”. In such circumstances, no reasons are given for dismissing an appeal except that the vote was tied. Relating to this issue, the Constitu- tional Court has taken practical measures to avoid tied votes or situations in which a proposal fails to attract majority by proposing new amendments of the Law No. 8577, dated 10.02.2000 "On the organization and functioning of the Constitutional Court of the Republic of Albania". 49. In meantime, on November 201414 the State Advocate Office approached the Consti- tutional Court of Albania on the matter, with the aim of finding a final solution to the cases where the Court dismisses the applicants’ claims in cases of deadlock, a practice which was found in breach of the Convention by part of the European Court of Human Rights. 50. The Constitutional Court on its part has submitted15 a number of modalities, in which the current situation can be resolved, among which: i) In cases where there is a deadlock regarding an application submitted by an individual on the constitutionality of a legal procedure, the Court would automatically find in the applicant’s favor (conflict with the Constitutional norms). In cases where there is a deadlock regarding the constitutionality of a normative act, the Court would automatically find the act not in conflict with the Constitution of the Republic (based on German model).

14 Official letter no. 2586/2 date 05.11.2014 15 Official letter by Constitutional Court no. 315/1 date 11.11.2014

ii) One other option presented by the Constitutional Court, would be the abrogation of Article 36/1(a) of the Organic Law of the Constitutional Court of the Republic of Albania. Pursuant to the article in force a judge of the Constitutional Court is obliged to resign from examination of a case when he participated in drafting the act subject to review. With the abrogation of the norm in hand it would be possi- ble for the judges not to recuse themselves on a matter that they have previously examined in the ordinary jurisdiction. iii) A final alternative presented by the Constitutional Court would be the adoption of a system of ad-hoc Constitutional Judges that would be requested to take part in judgments in cases that implicate the principle of objective impartiality of the judges, a model consistent with the procedure of the European Court of Human Rights itself. 52. These suggestions presented by the Constitutional Court of the Republic of Albania were further submitted to the Ministry of Justice and to the “Special Parliamentary Committee on the justice system reform” (established on 27th of November 2014, De- cision no. 96/2014), for further consideration and final implementation into the amendments on the law on the Organization and Functioning of the Constitutional Court of the Republic of Albania.

Update:

53. The working group for the Justice Reform presented one of the options for the remedy of the violations found by the Court in the Marini case, respectively the lack of access to court due to the current procedure in case of a tie in the votes of the Constitu- tional Judges. 54. The new proposal repeals article 74 of the Law, in this way discontinuing the practice of rejection of application in case of a tied vote, in this securing the applicants a final judgment. 55. The amendments also provide for cases in which there are undue delays in the proceedings before this court. In these instances, the applicant is provided the right to apply for a just satisfaction claim, which the court awards respectively 100,000 ALL for each year of delay, beyond the 3 month limit for the examination and judgment of the application. 56. These proposals, for the amendment of Law no. 8577, date 10.2.2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania” were approved by the Parliament of Albania on 06.10.2016, awaiting publication in the Of- ficial Gazette.

Taking into account the abovementioned measures and information, the Albanian Gov- ernment sees no further measures necessary to be envisaged or implemented for the remedy of the current violation.

D) VIOLATION OF ARTICLE 6§1 (NON-ENFORCEMENT OF FINAL DOMESTIC DECISIONS) AND OF ARTICLE 1 PROTOCOL NO. 1

57. The violation of Article 6§1 (non-enforcement of final domestic decisions) and Arti- cle 1 Protocol No. 1 has resulted in case law “Marini v. Albania (3738/02)” from the inaction of the bailiffs and the administrative authorities, who took no effective measure to comply with the relevant decisions. Court found the violation of the applicants’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No. 1) in that the state’s refusal to honor the company’s obligations, its failure to enforce decisions made by the courts in the applicant’s favor and the length of the proceedings rendered the applicant’s shareholding invalid and the applicant unable to receive the expected profits. 58. In this context, the Albanian state authorities have undertaken a number of legal and administrative initiatives, among which: The liberalization of bailiff service, which has been materialized through two important legislative initiatives; Law 10031/2008 "On the private bailiff service" and amendments to the Code of Civil Procedure of the Republic of Albania”, that has en- abled several advantages for citizens and businesses operating, as: • Reduce of expenditures and workload of State Enforcement Service; • Increase of enforcement service quality by providing a motivated service and fulfilled by means of logistic, financial and human resources; • The introduction of new operators in the market, in terms of a free competi- tion, which will deal with the execution of executive titles; • Growth of new employment opportunities for lawyers; • Reduction of corruption phenomena in the State Enforcement Service. 59. There exists a continuous and effective cooperation with the General Police of the State, for the execution of judgments. Such cooperation is based on the new changes to Article 523 of the Civil Procedure Code (update on 29.12.2008). This compulsory cooperation is preceded through agreements between the Bailiff Department, the General Police Department and the National Chamber of Private Bailiff for the enforcement of executive titles. 60. The initiative of the Council of Ministers, which at its meeting on June 14, 2011, decided “On the creation, registration, operation, management and interoperability and security of Electronic Management System of Bailiff (ALBIS)". ALBIS system is created in the Ministry of Justice, providing a database on active enforcement cases open from the date of entry into force of this decision, as well as new cases submitted for execution; stages of execution, work documents; statistical reporting and analysis. The benefit of a centralized electronic system on issues regarding the enforcement of executive titles will provide access at any time and in real time throughout the territo- ry of the Republic of Albania. In administrative terms, the system ensures that there doesn`t exist any duplication on the issues or problems encountered during bailiff practice. In addition it provides an on-line statistics, available to be accessed by the Ministry of Justice, Bailiff Department, and the National Chamber of Private Bailiff. 61. Another legal initiative in this regard is provided in article 511/1 “Code of Civil Pro- cedure”, updated with the law no 122/2013, which includes the final civil judicial decisions in the category of executive titles which are immediately executable. In

this regard the updated article 511/1 to the legislation in force, foresee that at the time regarding the fact that the execution order is issued a long with the court decision and becomes enforceable by the bailiff only after confirmation by the Chancellor of the Court. With these changes made to the Civil Procedure Code, the legislator has fore- seen the need of a more expedient enforcement procedure where the applicant does not have the necessity to address the court with the request for the issuing of an enforcement writ after a decision of the same court. 62. Furthermore the “Code of Civil Procedure” with the amendments of law 10052/2008 and law no .122/2013, sets out deadlines for the execution of executive titles (article 511) and arranges the compulsory cooperation between the bailiff service systems with the general police of state, aiming effective results on the execution of titles. In addition it establishes new procedures for appeal when the parties are not present, strengthens the role of civil authorities in hearings and manages better the time of the judgment in certain cases. 63. Also according to this law, in the case of barriers encountered near the treasury of the state, the Council of Ministers is the competent authority to provide instructions on the execution of the financial obligations of the state institutions16. 64. The issue of non-enforcement of domestic decisions is followed under the Puto group of cases and under the Driza group of cases (with respect to the issue of compensation or restitution of property expropriated during the Communist regime).

Taking into account the abovementioned measures and information, the Albanian Gov- ernment sees no further measures necessary to be envisaged or implemented for the remedy of the current violation.

E) AWARENESS RAISING MEASURES

65. The School of Magistrates of Albania organizes initial and continuous training on periodical basis. Such training are programmed for the period 2016-2019 and intend to provide a broad coverage of the problematic according to the ECtHR judgments, including the problematic as in the present cases. In the terms of a better coordination for this scope, between the School of Magistrates and the State Advocacy, has been signed a Joint Memorandum in order to attain a mutual cooperation dealing with the training of judges, prosecutors and bailiff officers in this regard. The judgments were also was translated and published in Albanian in the Office Ga- zette and disseminated to all relevant district and appellate courts, as well as to the Constitutional Court and Supreme Court.

16 One such instruction is the aforementioned Directiveno2, dated 18.08.2011, of the Council of Ministers "On the performance of monetary obligations of budgetary institutions in the treasury account"(Directive no.2/2011); Directive no. 1, dated 04.06.2014, of the Council of Ministers “On the method of execution of financial obligations of the general government units in the treasury account”; (Directive no. 1/2014) Directives no. 5, dated 27.02.2014 and Directive no. 5/1, dated 21.05.2014, of the Minister of Finance “For the payment of overdue obligations”.

IV. CONCLUSIONS

The Albanian Government will keep the Committee of Ministers informed on the implementation of the envisaged measures for the tackling of the different aspects of the findings of the Court in the abovementioned judgments, within the 6 forthcoming months.