Participants commented on the criteria which should be fixed in order that the impartiality of the judge be increased as much as possible. According to the discussions, participants suggested:
Participants expressed the opinion that a judge can be a owner or co-owner of immovable property (without excluding movable property), but he can not administer that property. The judge can delegate the management of his property to another.
It was suggested that the constitution define clearly what activities are permitted and what are prohibited for a judge.
Participants pointed out that the selection and nomination should depend on the constitution. With respect to the judges' nomination two systems were suggested:
The discipline of judges was also discussed. Some of the participants suggested that the organ which should nominate will also be the organ to discipline the judges. Other participants thought that might violate the judges' independence. Therefore, these participants suggested that the Constitution might establish another organ to deal with disciplining of judges and prosecutors. As a result of these two different suggestions, the participants listed the following ideas:
Managing the financial side of the judiciary is a delicate issue. Questions arose as to whether it is to be left to the executive or the H.C.J.? It was suggested that an independent organ be established within the judicial branch to deal directly with financial and budget procedures for the judiciary. It was pointed out that there is not, and there cannot be, an independent judiciary if the budget is administered by the government.
The Law on the Magistrates School and the Law on the Organization of Justice should be reviewed based on the new Constitutional principles. The selection and nomination of judges and prosecutors should be unified and not confusing. But, the Law on the Magistrates School is contrary to the principle of selection from professional organizations--it was so suggested for the candidate for the magistrature who wins this status on his admission to the Magistrates School. Or it is a selection in another form.
Another question is determining the needs of the judges in the whole country. The job has been done by the Ministry of Justice. But the Law on the Magistrates School refers to the determination of the needs of judge as a competence of H.C.J. The issue needs a rigorous and clear determination based on a new system established in the Constitution.
Judicial constitutional review must exist and be foreseen necessarily by the new constitution and only a priori and not a posteriori. The concrete examination is suggested to be made within the unified judicial system. However, there is the question of whose attribute should be: The Court of First Instance, Court of Cassation, or of a High Court? Participants suggested that there could be established a High Court which might hold such attributes. Some of the participants pointed out that this should be an attribute of all judges from the first degree.
Participants particularly discussed the question as to whether there should be a initial review of the constitutionality of laws. They suggested that such a control is needed and can be done by the Constitutional Council (not a judicial organ) which is incorporated in the legislative process before the law is passed by Parliament. Thus, the Council can make remarks and suggestions and then laws are passed by 2/3 of votes.
Another very sensitive problem raised by participants is the question of who will examine conflicts between laws and conflicts between citizens and the state. These conflicts must be examined by different instances and not by the same one. Other participants suggested that this can be established by a hybrid system. The constitutional rights of the person can be examined in three levels of courts. Whereas the conflict between institutions can be addressed only to the High Court, if there is to be such a court in the future. Therefore, the issue is whether there will be a Constitutional Court or High Court, for the whole system depends upon the existence of one of them.
On cases of conflicts between two jurisdictions, which interpretation will have priority? Final decision of the High Court or of the Constitutional Court? For example, if the Court says no to a law and then the parliament passes it, how is the conflict going to be solved? Participants were of the opinion that the Court is the competent organ to have the last say. And for this, there should be a sole court to exercise all the judicial power. Its decisions must be obligatory in relation to the legislative branch.
Also participants came out with the suggestion of two possible organs for judicial review:
A good aspect of the "Common Law" system is its reliance on tradition and examination of the previous practice of High Court decisions. Related to this probably the use of the juridical precedent would be a great help for the judicial system in Albania, through application of such a system the decisions of the Court of Cassation could guide rulings of lower courts during their process of taking of the decisions. This practice could be used with the good intention to stabilize legal practice.
Another point which was addressed in the discussion is what would be the place of the International Judicial Decisions, as looked at from the point of view of the application of these decisions by the Albanian court, or their utilization as precedents in guiding later decisions of these courts on similar questions. Probably, such a situation may bring about the need to institutionalize the use of judicial precedent's use in the Albanian legal system.
Also the convergence of these two systems will bring about the need for organizing the judicial system in relation to the role of courts will have: the court will make laws or apply laws (statutes).
Who will be the organ or organs which will have the power for interpretation of the constitution? Some of the participants suggested that there should be only the Constitutional Court. Some others suggested that all the courts starting from the court of the first hearing should have this power.
Some of the participants commented on the possibility of establishing a high court which is to be the sole judicial organ which might have the power to interpret the constitution.
Held on January 19, 1998