Strasbourg, 22 January 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Albania
Replies to the Questionnaire for 2007 Opinion concerning the Councils for the Judiciary
Part I – General context concerning the Judiciary
1. There is a possible interference of the legislative power in Albania to the Council for the Judiciary through electing three members of this body, as it is envisaged by the Constitution of Albania.
2. The Legislative Power may order investigations through a select committee (commission) in case of the removal of a justice from office on impeachment for bribery or other crimes and misdemeanors.
3. The Executive Power may interfere concerning judges through the Ministry of Justice.
4. It interferes in disciplinary procedures of judges and designation of chancellors (Administrative Directors) of courts.
5. The Judicial staff works under the authority of the president of the court.
6. The president of the court acts as a disciplinary authority vis-à-vis judges. He appoints and dismisses the staff (personnel) of the court upon the proposal of the chancellor.
Part II – General concerning Councils for the Judiciary
7. There is a Council for the Judiciary in Albanian judicial system.
8. The title of this body is “the High Council of Justice”( HCJ).
9. The legal basis for the HCJ is the Constitution of Albania and the law on the organization and functioning of the HCJ.
10. The HCJ was created in 1992, based on the Main Constitutional Provisions approved by the Assembly (Parliament) of Albania. Those Provisions envisaged that judicial power is separate and independent from other powers of the Government.
The HCJ was created as the sole authority, which could determine the nomination, replacement and discipline of judges of the courts of first instance and the courts of Appeals and the public prosecutors.
The New Constitution of Albania which was approved in November 1998 set up a different composition of the HCJ, that converted this Council into a self-governing body of the Judiciary.
Part III – Composition
11 & 12. Under the Constitution of Albania, the HCJ consists of the President of the Republic, the President of the High Court, the Minister of Justice, three members elected by the Assembly (Parliament), and nine judges of all levels elected by the National Judicial Conference. So, there are 15 members of the HCJ and at least, 10 of them are judges. Therefore, the HCJ consists also of non-judges members.
Judges elected by the National Judicial Conference as members of the HCJ should have exercised their profession for no less than 10 years.
13. Under the Constitution of Albania, the President of the Republic is the Chairman of the HCJ.
HCJ elects a vice-chairman from its ranks, on the proposal of the President of the Republic.
The vice-chairman organizes the activity of the HCJ and chairs its meetings in the absence of the President of the Republic.
14. The term of office for an elected member of the HCJ is five years.
15. A judge may be removed from office by the HCJ because of committing of a crime, mental or physical incapacity, acts and behavior that discredit seriously judicial integrity and reputation, or professional insufficiency.
The judge may appeal this decision to the High Court, which decides in the Joint Colleges.
Part IV - Resources
16. The HCJ receives its financial resources by the State Budget.
17. The HCJ has its own staff.
18. (No answer).
19. Organization, structure and the staff number of the HCJ is defined by its decision, in accordance with the law.
20. The staff people of the HCJ should be jurists, graduated from the faculty of law.
21. Inspectors of the Inspectorate of the HCJ can be recruited among judges.
22. The staff of the HCJ prepares materials and provides the HCJ with analysis of the courts activity and with moral and professional evaluation of judges.
Part V – Tasks
23. Under the Constitution of Albania, judges are appointed by the President of the Republic upon the proposal of the High Council of Justice. Justices of the High Court are appointed by the President of the Republic with the consent of the Assembly (Parliament) for 9 years without the right of reappointment.
The HCJ decides on the transfer of judges as well as their disciplinary responsibility pursuant to law.
The HCJ decides the criteria of professional evaluation of judges, supervises evaluation process and considers judges’ complaints about their evaluation.
The HCJ appoints the presidents and vice-presidents of the courts of appeal and courts of first instance and removes them from office;
The HCJ appoints and removes from office inspectors of its Inspectorate.
The HCJ looks after judges’ qualification. Initial and/or continuous training for judges and/or courts’ staff is performed by the School of Magistrates, after consulting the HCJ.
The HCJ looks after courts’ performance in general.
Chancellors (Administrative Directors) of courts of appeal and courts of first instance are appointed and removed from office by the Minister of Justice.
The number and location of judges and courthouses are determined by the President of the Republic upon the proposal of the Minister of Justice, after consulting the HCJ.
Disciplinary procedure against judges is initiated by the Minister of Justice.
The judge who is removed from office by the HCJ may appeal to the High Court, which decides in the Joint Colleges. The latter one has recently emphasized the importance of respecting the provisions of Article 6 of the ECHR whenever the HCJ decides on disciplinary responsibility of judges.
The HCJ does not take part in the budget negotiations with the Assembly or Government. It’s the Office for Administering the Budget of the Judiciary which, under the supervision of its Board, performs those negotiations and has the competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts, etc. The Board of this Office consist of the President and a Justice of the High Court, two Presidents of courts of Appeals, four Presidents of courts of first instance and a representative of the Ministry of Justice. The President of the High Court is the Chairman of the above mentioned Office.
The HCJ does not participate in the law-drafting process, which is performed by the National Judicial Conference, through its relevant committee. It’s the Minister of Justice who reports to the Assembly/Government about problems in the court system.
24. The HCJ has the power to control judges’ activity through verifying citizens’ complaints and other subjects’ information.
25. The HCJ can have information on the concrete functioning of courts through its Inspectorate, which performs general inspection of courts and presents the relevant report.
26.The HCJ issues decisions.
27. The functions of the HCJ are provided for by the Constitution of Albania and are described in the law” On the organization and functioning of the HCJ” and its Rules.
28. The formulations of these tasks by legislation is rather concrete and specific.
29. Albania does have a Code of Ethics for judges, through which the HCJ and the National Judicial Conference (its relevant committee) guarantee their observance.
30. The HCJ handle external relationships of the courts. It has a public relations department. The HCJ ensures the transparency of its functioning and organization through publishing on the website of the HCJ.
31. Decisions of this Council are also published on the website of the HCJ and are available to all.
Part VI – Assessment of the self-governance and the independence of the Judiciary
32. The work of the HCJ is influenced by the Minister of Justice, as the representative of the Executive, whenever he initiates a disciplinary procedure, proposes sanctions against judges, ask for transfer of judges in accordance with the law, etc.
33. The HCJ is independent from other State entities.
34. The HCJ has all powers and responsibilities on appointment and removal from office of judges, presidents and vice-presidents of courts of appeal and courts of first instance, on their professional evaluation and career, whereas the Minister of Justice has powers and responsibilities on appointment and removal from office of Chancellors (Administrative Directors) of courts of appeal and courts of first instance and on initiating the disciplinary procedure against judges and proposing sanctions against them.
35. The High Court (Supreme Court) has the power and responsibility on considering the judge’s appeal against the decision of the HCJ concerning his removal from office.
36. The High Court is not subject to the exercise of the powers of the HCJ.
37. The vice-president of the HCJ decides which are the priorities of the HCJ.
38. As it is mentioned above, under the Constitution of Albania a judge can appeal against the decision of the HCJ concerning his removal from office.
39. The Constitution of Albania, the ECHR, European Case-Law.
Part VII – Future trends of Councils for the Judiciary
40. There are particular fundamental problems concerning courthouses, for example in Tirana court of firs instance, where there are not enough courtrooms and judges often consider cases in their offices.
41. Actually there are not any reforms concerning the HCJ.
42. There are regular relations between the HCJ and the National Judicial Conference.