I.  Introduction

A constitution might describe what the court system will look like.  A constitution
could delineate the overall number of courts in the country.  It might break the
judicial system into various levels.  It could describe the subject matter jurisdiction
and geographic distribution of the courts.  It might prohibit the establishment of
exceptional courts to address particular cases.
 
What the constitution says about the court system and how specific it is in describing
the judicial system will depend on what the people drafting the constitution believe
will be best for Albania.
 
However, it is important to remember that every court system has its strengths and
weaknesses.  A constitution merely sets the parameters for the judicial system.  The
more important job of making sure that the judicial system functions as it should
rests with individual judges, lawyers, court employees and citizens.  Every Albanian
has an interest in seeing that the judicial system functions fairly and impartially on
behalf of their fellow Albanians.  And, this process begins with the constitution.
Because the constitution is the foundation upon which the judicial system is based.

II.  Overall Number

The number of courts is one of the most important question for the Albanian people
to decide.  For the number of courts will have a direct impact on the access to
justice for the Albanian citizen.  However, deciding how many courts are necessary
should be based on a careful study of how many courts are needed.  Courts cost a
lot of money to establish and maintain and should only be established where they are
truly needed.

III.  Various Levels

The overall number of courts will include the various levels of courts.  This means
that in addition to the courts of  the first instance, courts where people initially go to
resolve their legal problems, there will also be courts where people can go to appeal
decisions (ask the case be tried again) that they feel are unfair or unjust.  The
number of appellate courts (court where people can appeal decisions) will depend
on the Albanian people.  However, it is not unusual to have three different levels of
courts:   A court of first instance (the place where people go to file their initial law
suits), an appellate court (the court where people appeal the decision of the initial
court), and a Supreme Court (the final arbiter of the decision).


IV.  Subject Matter of the Courts

Subject matter jurisdiction of the court means:   what cases can the court hear.  It is
common in other countries for courts to have jurisdiction over certain cases.  For
example, the most common division is between having a criminal court and having a
civil court.  The criminal court hears criminal court matters but not civil
(non-criminal) matters.  The civil court hears only civil matters (lawsuit between
people or organizations) and never criminal matters.  The reason for this division is
that it is hoped and believed that court personnel and judges will have a greater
understanding of the law and the individual cases if they and the court specializes on
a specific area.  This reasoning has led to a further division of the court system.  In
some countries the court system is becoming more and more specialized.  There are
now courts that are solely devoted to Family Cases, Bankruptcy cases, and Juvenile
cases (the Juvenile Court handles cases relating to children), for example.  Although,
the division could be based on any area of the law where the need is greatest.
Again, it will be up to the Albanian people to determine what special courts, if any
they wish to establish.

V.  Geographic Distribution

The courts in Albania should be distributed according to the legal needs of the
people in the area.  However, Albania’s unique geographical situation, its mountains,
and its infrastructure should be considered in determining the necessary number of
courts.
 
Albania is a small country but it still takes a long time to get from one large or
medium sized town to another.  Therefore, since it is common for large and medium
sized towns to have courts in other systems and in other countries, this should
probably be the case in Albania as well.  It might even be necessary for more
isolated small towns to have courts as well.

The fact that each large and medium sized town has a court and that some small
towns have courts need not be as great a financial burden as it might appear.
Because some of small and medium sized towns might have very small staff and
budgets.

Another option that should be considered when determining the geographic
distribution of the courts is the use of circuit courts or traveling courts in Albania. A
circuit court is a type of court that is useful in providing judicial coverage to an area
that is sparsely populated and hard to get to. This is the situation in parts of Albania.
Therefore, it could provide a solution to providing court coverage to sparsely
populated mountain districts for example.  The way the circuit court or travelling
court works can vary.  However, generally a judge and his staff  travel to outlying
towns or villages on certain days and provide court coverage to places that do not
have permanent courts.  The system has two primary advantages: it costs less than
providing a permanent court to a sparsely populated district and yet it also ensures
that the sparsely populated outlying districts or regions receive adequate coverage.


Whether the final number and the geographic location of the courts needs to be
explicitly spelled out in the constitution is debatable.  The advantage in spelling it out
is that the people will have a right to a certain number of courts in a certain number
of districts or areas.  The disadvantage is that having it specified in the constitution
might lead to a situation where the court system lacks flexibility.  For example, a
district might lose people and have less need for the court system that was specified
in the constitution, while another district might gain people and have more need than
the court system that was specified in the constitution.  It might then be necessary for
the constitution to be amended to correct the situation.  While that might not seem to
be a problem, there are constitutional scholars and experts who believe that a
constitution should rarely be amended and then only concerning major issues.  Some
might consider the placement and subject matter jurisdiction of the courts to be
more of an issue of judicial administration than an issue of constitutional dimensions.

VI.  Exceptional Courts

Exceptional courts are in some ways similar to specialized courts.  They too are
usually single issue or subject courts.  However, unlike most single issue courts they
are less concerned with day to day legal problems and are more closely associated
with specific issues relating to the state, or dealing with certain individuals or with
certain groups.  For example, an exceptional court might deal with only national
security issues or censorship issues.

The biggest problem with exceptional courts are that they can be used to single out a
person or group for prosecution.

For example, if the government decided that they did not like someone or felt that
someone were interfering with the running of the state in some way, the government
might establish a special court just to prosecute that person.

Therefore, some countries constitutions, including Albania’s law or major
constitutional provisions, prohibit the establishment of exceptional courts.

VII.  Conclusion

What the judicial system should look like is an issue of great importance for all
Albanians.  But Albanians must carefully consider what provisions regarding the
judicial system they want in their constitution.  If too many provisions regarding the
day to day administration of the judicial system are placed in the constitution then the
judicial system may become too inflexible to respond to changing circumstances.  If
too few provisions are placed in the constitution, the constitution may not adequately
protect the judicial system from political interference.

Submitted by CEELI Liaison John Kelley
American Bar Association (ABA) Central and East European Law Initiative
(CEELI)
Rr. Ismail Qemali, Pall. 34, Ap. 2
Tirana, Albania
Phone:  355 42 346 24
Fax:  355 42 331 97
E-mail:  [email protected]