Report for the Constitutional Commission
Presented by ABA/CEELI

Tirana, 22 December 1997

 

Results from “The First Albanian NGO Forum on the Constitution:
The Judiciary”
 

On December 18, 1997,  representatives of non-governmental organizations, the court
system, the Ministry of Justice, the University of Tirana Law Faculty, and the Magistrates’
School participated in “Forumi i Parë i OJQ-ve, Çeshtje te Kushtetutes: Gjyqësori.”  The
event kicked off the public participation phase of the constitution drafting and education
process.  Through an interactive brainstorming exercise led by Albanian and foreign
facilitators, participants identified the issues that are of the most importance to them for the
new constitution relating to the judiciary.  The issues raised by the participants will be
addressed in focused discussion groups, workshops, and media events.  Participants have
raised these issues so that they may ultimately be addressed by Albania’s constitution
drafters.

The issues listed herein were identified as important by the participants through a democratic
voting process.  Issues are listed according to the number of votes received during the
forum.  While many participants expressed views as to the potential resolution of some of
these issues, the purpose of this First Forum was to raise issues, not to resolve them.

This forum was organized and presented by the American Bar Association’s Central and
East European Law Initiative (ABA/CEELI), a USAID-funded project.  Most program
expenses were provided by The German Company for Technical Assistance (GTZ).
Organizational assistance was provided by the Ministry of Institutional Reform and
Parliamentary Relations and the Administrative Center for the Coordination of Assistance
and Public Participation (ACCAPP).  The Albanian Magistrates’ School provided the
location for the Forum.  The Organization for Security and Cooperation in Europe (OSCE),
the Venice Commission of the Council of Europe (CoE), ACCAPP and ABA/CEELI
provided facilitators for the discussion groups.

Constitutional Issues on the Judiciary
 

An Impartial Judiciary:  Incompatibility of the Judges’ Office with Other Jobs and
with Political Affiliations

Participants discussed the role of the constitution in promoting an impartial judiciary.  They
stressed the need for judicial impartiality in dealing with cases involving the political parties.
To promote judicial impartiality, participants said that the constitution drafters should
consider whether judges should be prohibited from holding other jobs or from having active
political affiliations.  They specifically raised the question whether judges should be
prohibited from holding positions in other branches of the government, serving as a
professor in the Law Faculty or Magistrates’ School, working as a private advocate, or
holding an active position in a political party.  (Some participants  felt that work as a law
professor was not inconsistent with the role of the judge.).
 

Nomination, Selection, and Discipline of Judges--The Role of the High Council of
Justice or Other Responsible Bodies

Participants spoke about the system of nominating, electing, disciplining, and removing
judges from their positions.  Participants agreed that the constitution should specify the
organs to be involved in this process and the procedures that might be followed.
Participants identified this issues as important to promoting the separation of powers, judicial
independence, and judicial integrity.
 

Constitutional Review and Identification of the Organ(s) Which Will Conduct the
Review:  Constitutional Court, a Single Supreme Court, or Other Systems

Participants spoke about different systems of constitutional review.  They identified different
organs--such as a constitutional court, a single supreme court, or a council of state--that
might be named in the constitution to conduct the constitutional review of cases.  Participants
also commented on the current controversy involving Parliament and the Constitutional
Court.
 

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.
 

Financial Independence of the Judiciary

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


Common Law System vs. Roman Law System

Participants discussed the merits and detriments of a common law system versus a roman
law system.  Differences include the use of court decisions as precedent and the use of juries
of lay persons in criminal cases.
 

Specialized Courts/Judges

Participants suggested that constitution drafters consider whether the constitution should
establish specialized courts or judges, for example for bankruptcy cases, juvenile cases, etc.
Other participants  felt that the matter could be treated in a law, rather than in the
constitution.
 

Judicial Training/Qualification

Participants regarded judicial training/qualification as extremely important.  Participants
recognized the current situation regarding the sitting 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.
 

Judicial Salaries

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

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 judiciary or the executive branch.
 

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.
 

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 the trial of a criminal
defendant.
 


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.  Some participants felt that the issue should be addressed in the
Human Rights section of the new constitution.
 

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

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