I. Judicial Independence
 

Participants agreed that the Constitution should contain guarantees to promote the independence of the judiciary. Participants in some groups spoke about the political, financial, and administrative independence of the courts as separate issues.
 

• Ensuring judicial independence in the following ways:

• Political independence of courts and the High Council of Justice ("HCJ");

• Financial independence;

• Administrative/functional independence;

• Combining the Court of Cassation with the Constitutional Court into a single court, which might be called the High Court;

• Changing the composition of the HCJ by adding jurists with specialized expertise.

 

• Participants suggested that the HCJ be composed of:

• Lecturers from the Magistrates' School;

• Chairman of the High Court;

• Chairmen of the appellate courts;

• Representatives from the lawyers' and prosecutors' associations;

• Some of the participants suggested that the Minister of Justice and the President of the Republic not be members of the HCJ;

• Electing representatives from the prosecutors' and judges' associations to sit on the HCJ will minimize political influence. In addition, jurists and scholars can also be members of the HCJ;

• HCJ should be a self-administering organ that is solely responsible for the execution of its duties with no interference from other governmental entities.

 

• The process of nominating judges and prosecutors is another area where the independence of the judiciary can be assured. Participants suggested that they be nominated by the HCJ (if such an organ will still exist), but candidates submitted to the HCJ should be elected by:

• Judicial Conference;

• Legal community that includes all professional organizations;

• by popular vote.

To support this, they argued that the nomination of judges by the executive seriously endangers their independence by making them subjects of political influence. They also expressed concern with electing judges and prosecutors by popular vote. Though this may appear democratic, it may turn into a political issue due to the highly politicized situation in the country.
 

The participants concluded that the existing model obligating the High Council of Justice to nominate judges is more acceptable for two reasons: (1) it formally stands above the political parties, and (2) it limits interference by the executive. Participants agreed that other issues such as selection, qualification, and status of judges should not be contained in the Constitution, but should be regulated by law.
 

• Participants discussed the guarantees that can ensure that judges are not removed arbitrarily. They were of the opinion that such a guarantee should be explicitly expressed in the Constitution. But the procedure and ways of securing such a guarantee should be regulated in detail by law.

 

1) Felony;

2) Misdemeanor;

3) Insanity;

4) Other legal reasons that strongly infringe upon the judiciary's credibility.
 

These cases should be adjudicated in a fair and transparent way to avoid any misinterpretation that could jeopardize the judiciary's independence.
 

• As far as control of the judiciary is concerned, including control over instances of abuse by judges, participants raised the question of which organ should control these abuses--the High Council of Justice or the Ministry of Justice. The general opinion was that the Ministry of Justice should deal only with instances of abuse related to:

2) control procedures; and

3) administrative issues.
 

The right of preliminary investigation should reside with the HCJ. Participants raised the question of how the procedure will be followed, how evidence of abuses will be collected, and how the preliminary investigation will be conducted.
 

Participants offered two possibilities:

A) Through receiving information from different persons who encounter such abuses in their interactions with judges;

B) Through the initiative of HCJ to undertake periodic inspections.
 

Other participants held the opinion that the HCJ should not take the initiative by itself because this may bring about the loss of its value as a special component of the judicial system. With respect to the measures of control and punishment that can be undertaken against those judges who are considered guilty by the court, participants were careful to note that the accused judges should be guaranteed the right of defense. Such a right is also needed during the sentencing of the judge.
 
 

II. Financial Independence of the Judiciary
 

Participants spoke about the role of financial independence in promoting judicial integrity and the separation of powers.
 

• There was a convergence of participant opinion with respect to the financial independence of the courts. Two possibilities were discussed as a means to ensure this independence:

• Administration of an independent budget for the courts;

• Increase in salaries of judges.

 

• It should be independent and sufficient to completely fulfill the judicial system's activity;

• It should be passed by the parliament by a two-thirds majority;

• Possibilities for its proper allocation should be increased;

• It should be the parliament, rather than the executive, that controls allocation of the court's expenses.

 

An office for the judiciary's budget and administration (like the one provided for in the current draft law on this subject) may be established by a special law. This office would be responsible for drafting the courts' budget and assessing the court's financial needs. Such an office may be comprised of jurists (judges) and finance specialists. The administration of this office will be independent from the executive and judiciary.
 
 

III. Specialized Courts/Judges
 

Participants suggested that the constitution drafters consider whether the Constitution should establish specialized courts or judges. Examples include courts for bankruptcy cases and juvenile cases. Other participants felt that the matter could be adequately addressed in a law rather than in the Constitution.
 

• The Constitution should explicitly forbid the establishment of extraordinary or special courts which are typically created for a limited purpose and duration. Specialized courts that may be regulated by a special law can include:

• Commercial/bankruptcy courts;

• Juvenile courts;

• Administrative courts; and

• Military courts.

IV. Judicial Training/Qualification
 

Participants regarded judicial training and qualifications as extremely important. Participants recognized the problem regarding those judges with only six months of training in the law. Other participants felt that the matter could be treated in a law rather than in the Constitution.
 

• Various participants favored addressing this issue in the Constitution, arguing that the Constitution will control all other laws. They suggested that a special commission be created to establish the nomination criteria for judicial candidates. Suggested criteria include:

• minimum level of education, including a Magistrate's School degree;

• minimum age limit;

• professional and moral record;

• incompatibility with other functions;

• training.

 

• The participants also discussed whether the lay or popular judge should exist. There were various opinions, both pro and con. Some participants argued that the existence of the popular judge is a democratic component of the judicial system. According to them, the existence of the "laic" as an assistant judge gives the court a human element, and consequently, the court rulings will more closely mirror reality. On the other hand, some participants were against popular judges, regarding them as unprofessional.

 

V. Judicial Salaries
 

Participants commented on the importance of judges' salaries in promoting judicial integrity.
 

• The general opinion was that they should vary according to criteria that may be set. Some of the participants felt that such a differentiation should be made between judges who work within Tirana and those who work outside it. Some of the participants were of the opinion that a pay differential should be made:

• within the court itself;

• among different levels;

• among districts;

• on the basis of differences between qualifications and years of work experience;

• distance from dwelling place.

 

• judicial salaries, which should be guaranteed by law;

• all other salaries should be set with reference to judicial salaries;

• salaries' indexation;

• judges should be distanced from the administration of the courts' budget; salaries should be set as a fixed percentage of the annual budget.

1. Sokol Nako (Magistrates' School Professor and Legal Advisor for the Government)

2. Gramoz Xhangolli (Legal Department of the Ministry of Labor)

3. Adriana Shehu (Legal Department of the Telecom Company)

4. Luan Omari (Scholar from the Academy of Science)

5. Ilirjan Rusmali (Constitutional Law Expert)

6. Genti Sinani (Tirana District Court)

7. Shpresa Kurti (President of Notaries's Association)

8. Karmen Qineti (Magistrates' School Director)

9. Eduart Halimi (Magistrates' School Student)

10. Shkëlzen Selimi (Magistrates' School Student)

11. Shefki Bejko (Lecturer at Faculty of Law)

12. Miranda Gaçe (Society for Democratic Culture)

13. Adrian Vaso (AQUARIUS Association)

14. Njazi Jaho (Albanian Helsinki Committee)

15. Nesti Zoi (National Albanian Farmers' Union)

16. Flutur Laknori (Professional and Business Women Association)

17. Vera Lesko (Women for Social Activities)