I.  Introduction

While safeguarding the independence of the judiciary is an important goal of the
Constitution, it is also important that there exist some mechanism for the discipline and
removal of judges in certain circumstances.  There should be, for example, a body with
the competence to remove judges who accept bribes or who are otherwise corrupt in the
fulfillment of their duties.  This body should also have the authority to issue lesser
sanctions for less serious violations, such as minor violations of the ethical standards for
judges.  If smaller sanctions are available to the enforcement body, the body is more
likely to be effective in promoting judicial integrity.

Crucial, however, is that the body given this responsibility to discipline and remove judges
exercise its power based on the actual facts and free of political pressure.  In some
systems, judges are removed for purely political reasons.  Judges who were appointed by
a government from one political party, for example, are removed when a new party
comes to power.  Under old Soviet systems, judges who failed to do as they were
ordered by the party or government were removed or worse.  Albania’s new Constitution
could help to ensure that judges are appointed and disciplined through a process that is
fair, open, impartial, and based on fact--rather than through a closed process that is
based on political affiliation or on the judge’s decision to rule against the wishes of the
government in a particular case.

II. The role of the Constitution in providing for the appointment, discipline, and
removal of judges

Under Law No. 7491 for the “Interim Constitutional Provisions for the Republic of
Albania,” the High Council of Justice currently has the power to appoint and remove
judges and prosecutors.  The new Constitution will again define what body has this
power.  The Constitution will likely also specify to some extent the process and
procedures to be employed as the High Council of Justice (or other body) fulfills its task.
In addressing these issues,  it is hoped that the Constitution drafters keep in mind the
basic principles listed below so as to ensure that the process of appointing, disciplining,
and removing judges is fair, open, impartial, and based on the facts.


A.  What Body/Bodies Will be Responsible for the Discipline and Removal of
Judges--Independence and Balance:  It is important that the process of appointing
and disciplining judges is not controlled by a single branch of government.  For example,
the body that is currently responsible for the appointment and removal of judges and
prosecutors--the High Council of Justice--is made up of the President of the Republic,
the President of the Court of Cassation, the Minister of Justice, the General Prosecutor,
and nine other accomplished jurists from a variety of backgrounds.  In this way the High
Council is balanced and cannot easily be dominated by a single branch of the government,
or by a single strong personality.  In other systems, one branch of government might
nominate a judge, while another branch of government is responsible for the confirmation
and/or impeachment of judges.  In these systems the executive and legislature--as two
independent branches of government--work together to check the judiciary.  No matter
what system Albania’s citizens select, it is important to keep in mind that principles of
independence and balance are fundamental in ensuring a fair and impartial process.

B.  Notice, The Opportunity to Present Evidence, and The Right To Counsel:
Investigations of judges, as with any criminal investigation, may be done in secret.  It is
important, however, that at some point after the conclusion of the investigation the
accused judge receive notice of any formal proceedings against him.  The accused judge
should then have the opportunity to present live witnesses, documentary evidence, and to
make legal argument during the proceedings.  In addition, judges could be guaranteed the
right to bring legal counsel to represent them in any disciplinary or removal proceedings.

C.  The Right to a Public Hearing:  The new Constitution could also specify that
proceedings regarding the discipline or removal of judges be open and in public.  In this
manner, the people will have the ability to determine if the body responsible for the
removal of judges acts with integrity.  If hearings for the removal of judges are done in
secret, it would be much easier for the body to make its decision based on political bias
or other improper purposes.

D.  Determination Based on Facts/Requirement of a Written Decision:  Similarly,
it is extremely important that the decision to remove a judge be based on hard evidence,
rather than on simple rumor.  Thus, a decision to remove a judge should be based on the
testimony of witnesses (with the accused judge having the right to question the witnesses)
and on documentary evidence.  Moreover, the Constitution might specify that the decision
to remove or otherwise discipline a judge must be written with a full rendition of the facts
and legal analysis on which it is based.  This will also help to make sure that the decision
is based on fact and is open to public scrutiny.

E.  The Right of Appeal to a Higher Body:  Another provision that could help to
ensure the integrity of determinations made by the body charged with the discipline and
removal of judges is a right of appeal.  A judge that has been disciplined might be given
the right to seek reconsideration from the same body that made the decision.  The judge
could also be given the right then to appeal an unfavorable decision to a different forum,
such as Parliament or to the court system.  The right of final appeal to another body
would only be useful if the other body itself had a fair process of appeal and rendered
determinations with integrity, rather than through political bias.  One way to limit the
power of the body to which the decision is appealed would be to provide that only
decisions to remove or discipline a judge could be appealed.  (In other words, decisions
not to discipline a judge would not be appealed.).  Another useful way to limit the power
of the appellate forum is to provide that the appellate forum only has the power to affirm
the decision or send the decision back to the lower body for a new proceeding.


III.  Conclusion

The new Constitution will likely determine what body will appoint and remove judges and
prosecutors; how the members of that body will be selected; and, at least to some extent,
what procedures the body will apply.  In addition to the removal of a judge, the
Constitution could also provide the High Council of Justice (or other body) with
intermediate methods of sanctioning a judge for less significant violations.  To ensure that
the body charged with this function operates in a fair and impartial way, the Constitution
should include the procedural protections listed above--and others that are suggested by
experts and the Albanian people during the constitution drafting process.

Submitted by Robert A. Pulver, Esq.
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]