I. Whether Prosecutors Should be Part of the Judiciary or Executive

Participants felt that the constitution drafters should address whether prosecutors should be a part of the judicial or the executive branch.

Participants gave three different suggestions relating to the placement of the prosecutor general's office in the constitutional framework:

prosecutor general's office should be part of the executive

Participants in favor of the prosecutor general's office being included in the executive branch argued that the executive, because it is most interested in order and security, is in the best position to expedite the process of finding criminals and bringing them to trial. Including the prosecutor general's office within the executive makes it possible to satisfy these objectives within a relatively short time period. Participants felt that inclusion of the general prosecutor's office within the executive is appropriate because the prosecutor represents the state within the judicial process.

prosecutor general's office should be part of the judiciary

Those participants who favored including the prosecutor's office within the judiciary felt that the alternative of including it within the executive would jeopardize the office's impartiality in a case where the executive may be a party. Since the prosecutor general's office is a party to the process, it cannot be the accuser of a minister or prime minister. The prosecutor general should not be nominated by the executive but by the parliament. The prosecutor general's office should be vested with the competence to nominate its prosecutors. According to the participants, the prosecutor general's office and the judiciary should be combined in one organ so as to limit political influence.

it should be independent

Such a suggestion was not endorsed by the majority of participants, for they regarded it as an unrealistic possibility.

 

II. The Organization of the Judiciary

Participants identified as an important part of a new Constitution the organization of the judiciary, including the hierarchy of courts.

Participants stressed the fact that because the judiciary is a branch of the government, the Constitution should address its organization. Participants felt that the traditional organization of a two-level court system should remain and should include:

• first instance courts, which are established at any district or administrative center;
• courts of appeals that cover broader territory than the first instance courts, and which would be established according to geographic location.

Participants suggested that the nomination of the first instance judges should be made by the High Council of Justice on the basis of established criteria.

The procedure for nominating judges on the courts of appeals should be more rigorous than the one for the first instance courts. Participants suggested that the candidates for the courts of appeals should be proposed by the High Council of Justice and then subject to popular vote. Participants were of the opinion that the selection of members of the High/Cassation Court should be made according to previously enumerated criteria.

As for the establishment of specialized courts, participants stressed that changing social relations make such a thing necessary. There were different suggestions related to the areas and means of specialization. However, there was general consensus that areas of specialization and division of courts can include:

• The administrative section,
• The Commercial/Bankruptcy section,
• The juvenile section,
• Civil section, and
• Criminal section.

The general opinion was that such a detailed division should not be reflected in the Constitution but should be regulated by a special law. The Constitution can set forth only those principles related to the division of the courts. By setting forth in a law the details regarding specialization, there is flexibility to the extent the need for certain specialized courts disappears or arises.

Another much debated issue was whether the Constitution should sanction extraordinary courts (courts created for a limited purpose and duration). Although there were conflicting points of view, the general opinion was that the Constitution should explicitly prohibit extraordinary or special courts. Participants also stressed that the Constitution should make clear the difference between specialized courts and special or extraordinary ones.

Participants suggested that a new practice should be established to adjudicate less important cases, which may be solved by eliminating the lengthy procedures that currently are followed. They suggested that one judge could handle "petite crimes" who would then issue his opinion at the conclusion of the case. The participants stressed, however, that the law should allow the parties to settle the case without court action.
 

III. Speed of the Criminal Law Process

Participants felt that the Constitution might address the speed of the criminal law process. Participants spoke specifically about the time between detention and trial of a criminal defendant.

Participants felt that the Constitution should address this issue only in principle, such as a "reasonable term," but should not include the actual period of detention. Other participants stressed that the speed of the criminal process is not a constitutional issue, and that the Criminal Procedure Code has satisfactorily fixed the detention period. So, a Constitutional article can operate as a referring article to the criminal code.

Participants gave various opinions on the period of detention that varied from 48 to 96 hours. The longer detention period acknowledges the problems with Albania's infrastructure that make shorter detention periods unworkable.
 

IV. The Role of International Court Opinions in the Albanian Legal System

Participants discussed different approaches to the treatment of international court opinions in the courts of Albania. One participant felt that the issue should be addressed in the Human Rights section of the new Constitution.

Participants felt that the treatment of international court opinions is a judicial as well as political issue. The general opinion was that the role of the international court opinions is not quite clear. Participants stressed that the issue of whether the international court opinions will be taken into consideration is related to the Positive Law. This is so because rendering international court opinions obligatory depends on whether the state has signed agreements or treaties that make them so. They mentioned that there were only a few examples from international experience where the opinions of international courts are given supremacy over domestic decisions. Albanian courts may, however, always refer to the interpretation of international law or custom.

As far as the opinion of the international courts is concerned, two issues are of interest and should be considered:

• Legal obligation,
• Their interpretation.

As for the system that may be established, there were various opinions. Two were most striking:

Monist system: Characteristics

1. The Constitution under this system makes application of international law easier,
2. The role and abrogating effect of international law on the Constitution,
3. Greater responsibilities under international law stemming from membership in international organizations.

Dualist system: Characteristics

1. International law does not have priority over domestic law,
2. International acts and conventions do not become part of the domestic legislation automatically.

However, all participants were of the opinion that the Constitution should sanction:

1. The role of international court opinions,
2. International obligations according to custom.

 

V. The Right of the Public to Seek Constitutional Review of the Laws

Participants discussed various models for public involvement in the legal review process. Whether a court should be prohibited from issuing advisory opinions on constitutional or other issues was also discussed.

Participants discussed whether the public should have the right to seek judicial review of the laws, and if so, how such review should be conducted. Participants offered various opinions on the models that could be followed to ensure public participation in the review of laws.

Participants identifed several issues to be considered in the constitutional drafting process, including:

1. Lack of preliminary constitutional review of legal acts;
2. Control from the Constitutional/High Court over draft laws;
3. The court cannot exert control over draft laws because it does not know in what form they will be passed by Parliament;
4. The Constitutional Court should exist in order to conduct such control to review laws;
5. NGOs can start the process to control the constitutionality of legal acts;
6. Initiators should prove that they have a stake in the issue being reviewed;
7. Only the constitutionality of laws and not of administrative acts should be reviewed.

Participant List For Focused Discussion Group No. 3 on Constitutional Issues--Judiciary Held on April 3, 1998

Sokol Nako

(Moderator)

Kastriot Selita

(Law Faculty Student)

Bledar Doracaj

(Law Faculty Student)

Bledar Abdullai

(Magistrates' School Student)

Sandër Simoni

(Magistrates' School Student)

Teuta Hoxha

(Magistrates' School Student)

Shkëlzen Selimi

(Magistrates' School Student)

Tereza Gjoni

(Magistrates' School Student)

Manjola Bejleri

(Magistrates' School Student)

Eduart Halimi

(Magistrates' School Student)

Fabiola Dhima

(Magistrates' School Student)

Enkeledi Bicakani

(Magistrates' School Student)

Marsela Balili

(Magistrates' School Student)

Marsida Xhaferllari

(Magistrates' School Student)

Monika Zeqo

(Magistrates' School Student)

Albert Meco

(Magistrates' School Student)

Luljeta Ikonomi

(Law Faculty Student)

Entela Meta

(Law Faculty Student)

Ahmedie Daci

(Law and Women Right's Association)

Vera Leska

(The Association for Social Activites)

Mrika Cara

(Professional and Business Women Association)

Erion Muharremi

(Law Faculty Student)

Irena Dule

(Law Faculty Student)

Ervin Metalla

(Law Faculty Student)

Ergin Treza

(Law Faculty Student)

Luan Hasani

(Magistrates' School Student)

Alfred Abdullai

(The Council for Albanian Development)

Enkelejd Alibeaj

(Magistrates' School Student)

Elvis Kotini

(Magistrates' School Student)

Kastriot Gramshi

(Magistrates' School Student)

Vasilika Hysi

(Law Faculty Lecturer)

Ledio Bianku

(Law Faculty Lecturer)

Ilir Panda

(Magistrates' School Lecturer)

Altin Shkurti

(Magistrates' School Student)

Karmen Qineti

(Magistrates' School Director)