European union – albania stabilisation and association committee 11 March 2015 table of contents political criteria 3
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KP 2: Reform of the justice systemThe activity of Ministry of Justice during 2014 and 2015 is focused on the implementation of justice reform. Ministry of Justice, in the framework of implementation of the justice reform, has organised two national conferences with stakeholders and groups of interest of the system: on 6 October 2014 (this activity is organised in cooperation with the President of the Republic) and on 31 October 2014. Adopted legislative initiatives Law 101/2014“On some addenda and amendments to law no. 8811, dated 17.05.2001 “On organisation and functioning of the High Council of Justice”, initiated by a group of deputies. The law pays special attention to problems encountered throughout the activity of the HCJ during these last years and the need to reform the legislation governing the organisation and functioning of this constitutional body, so as to increase transparency, accountability and efficiency. Law no. 99/2014, dated 31.07.2014 “On some addenda and amendments to law no .7905, dated 21.3.1995“Code of Criminal Procedure of the Republic of Albania” amended, which amendments aim at facilitating the actions in case of jurisdictional relations as regards the shortest time period and most effective way for the judicial authorities or proceeding authorities in general to decide based on the evidence, on the testimonies within a shortest period of time. Moreover, this law amends even article 75/a, as it foresees that the Court for Serious Crimes tries the crimes foreseen by article 265/a, 265/b, 265/c of the Criminal Code; this being provisions added by law no. 98/2014, “On some addenda to law no. 7895, dated 27.1.1995, “Criminal Code of the Republic of Albania”, amended”. Anti-mafia law consisting of:
The above-mentioned interventions reflect the constitutional amendments of 2012 through which it was lifted immunity of high officials, especially the immunity of judges and such amendments classify corruption as a serious criminal offence as it is foreseen that such cases are tried by the Court of Serious Crimes so as to enable the seizure/confiscation of unjustified assets deriving from such offences. The amendments were adopted in order to increase the quality of investigation and adjudication of corruption criminal offences, aiming at the punishment of the individuals who committed corruptive actions, strengthening of the rule of law, as these are indispensable requirements for Albania to advance on its road towards membership in the European Union. This law was adopted together with law no. 24/2014 "On some addenda and amendments to law no. 10192 dated 3.12.2009 "On prevention and striking at organized crime and trafficking through preventive measures against assets". Law no. 155/2014, “On some addenda and amendments to law no. 8454, dated 04.02.1999, “On People's Advocate”, amended”. Amendments to law no. 8454/1999, aimed at:
Law no. 119/2014 “On the right to information”, such initiative creates a new position which is that of the “Coordinator for the right to information” and provision of his competences; it defends the right of each citizen to be informed, without the need to point out the reasons; it defines the obligation to prepare and approve the transparency programme; it foresees violations and administrative sanctions; it defines competences and procedures for handling of complaints. The innovations of law no. 119/2014 “On the right to information”, are as follows:
Law no. 100/2014, “On some addenda and amendments to law no. 49/2012 "" On organisation and functioning of Administrative Courts and adjudication of administrative disputes". This law provides for the legal assistants to facilitate the work of judges of the first instance administrative courts and administrative court of appeal and it guarantees them independence in the exercise of their function. Amendments in the law foresee new provisions linked to the conditions defined by law as regards the candidates for legal assistants attached to the administrative courts of first instance and Administrative Court of Appeal. The innovations of the draft-law may be summarized as follows:
Law no. 97/2014, “On some addenda and amendments to law no. 8136, dated 31.7.1996, “On Magistrates' School”, amended”. The proposal of the law by a group of MPs was rated as a need to maintain and further strengthen the high professional level of the SM, providing legal guarantees for the protection of the structure of the phenomena and problems, which is being years battling justice system in Albania. Law no. 77/2014, “On some addenda and amendments to law no. 10.039, dated 22.12.2008, “On legal aid”, amended”. Review of law no. 10039 dated 22.12.2008 "On legal aid" amended, because of the problems identified by the State Commission for Legal Aid, during its enforcement. Inter alia it clearly defines the criteria to be granted legal aid. Law no. 40/2014, “On some addenda and amendments to law no. 8328, dated 16.4.1998, On the rights and treatment of convicts and remand prisoners ", amended”. The amendments through the law no. 40/2014 regulate issues such as: treatment of minors, treatment of convicts who suffer mental problems and disability, coverage from the compulsory health care insurance scheme, requests and complaints, disciplinary measures, rules of transfer, furloughs and special leaves or protection of personal data. Law no. 36/2014, “On some addenda and amendments to law no. 10 032, dated 27.07.2008 “On prison police". Amendments to the law no. 10032 dated 11.12.2008 "On prison police" were undertaken in order to create a prison police service which is sustainable, professional, merit-based, which has moral integrity and political impartiality in guaranteeing order and security in the Prison Institutions, in respect for the fundamental human rights and freedoms of the convicts. The law defines similar rules on the conditions and procedures of admission with the Prison Police, the manner of starting employment relations, career development, guaranteeing of the rights and defining obligations of the prison police employees. Pending legislative initiatives Draft law " Code of Administrative procedures" - after an intensive work, in 2014, it was submitted to the Council of Ministers for review and approval the draft decision proposing the draft law "On the Code of Administrative Procedures" which was approved by the Council of Ministers in June. On 16 July 2014, the Parliamentary Committee on Legal Issues, Public Administration and Human Rights adopted, in principle, the draft law which article by article review is taking place according to the calendar of activity of the Committee. Draft law "On the system of evaluation of judges" - this initiative is taken in order to create a merit based and transparent process for the appointment, transfer and promotion of judges. The aim of the draft-law is to improve the performance of the judiciary in general, by promoting quality and efficiency in rendering justice through the evaluation of professional skills of judges. Ministry of Justice in cooperation with EURALIUS Mission and the groups of interest has prepared the draft law which is submitted to an external consultation process. To this purpose, in the premises of the Ministry of Justice, on 27 February 2015, the first consultative meeting with the representatives of the judiciary was organised. Draft-law "On judicial administration" -such initiative is undertaken in order to govern the status of the judicial administration which will reflect the decision of the Constitutional Court of 2014. Ministry of Justice with EURALIUS IV assistance and in cooperation with the groups of interest is about to finalise the first draft of the draft law. Draft-law "On international arbitration" – such initiative aims at the development and promotion of alternative systems of extra-judicial dispute resolution. Draft-law “On some addenda and amendments to law no. 10018, dated 13.11.2008 " On the State Advocate Office" - it aims at governing several problems and legal gaps encountered during 15 year experience of the institution of the State Advocate. The draft law is submitted to the Council of Ministers for review and approval. Administrative measures to improve the functioning of the judicial system Administrative courts For detailed information regarding administrative courts please refer to the information provided for Priority 1. Digitalisation of courts During 2014, installation of the audio system in the courts of first instance and courts of appeal has been ongoing, thus reaching a total of 26 judicial and appeal courts; 115 courtrooms and there have been trained 663 employees: 252 judges, 391 employees of the judicial administration and inspectors of the Ministry of Justice and HCJ. ICMIS system is already installed in all the courts and it is efficiently operating in most of them. Maintenance, functioning and frequent monitoring of this system is done completely by the Ministry of Justice which has ensured the necessary funds for this purpose. During the period March 2012 until February 2015 there has been important development of the system as regards both frequent improvement of the functionalities of the application and its extension in the courts which do not use this system. Concerning the administrative courts, Ministry of Justice through the award of a contract in relation to the ICMIS system in administrative courts has followed the installation and implementation of this electronic system. The system during the period September - November 2014 was installed and configured in seven new administrative courts. This step anticipated the process of the training on the use of the system. Training is provided for the Administrative Court of Appeal, Administrative Court of Tirana and Administrative Court of Durres. ICMIS in these courts is considered fully implemented, thus ensuring the electronic recording of all the cases, electronic drawing of the lot, processing of sessions through the system until the closure of cases and recording in the system of the operative part of the decisions and final reasoned decision. In four other administrative courts (Shkodra, Korça, Vlora, Gjirokastra), Ministry of Justice has planned the training and functioning of ICMIS as of March 2015. ICMIS, in the judicial district court of Tirana is being implemented in close cooperation with EURALIUS, initially in the family matter sections of the civil chamber. Initial training is provided to the administrative staff and judges during February 2015. The system will be tested during March to be fully implemented gradually even in other civil and criminal sections. The Court for Serious Crimes started recording the files in ICMIS in January 2015. In this court, following the required improvement to the module of the electronic lot, ICMIS started to function fully in February, and it will gradually replace the old ARK-IT system. ICMIS is not made functional in the judicial district court of Kukësi because of a hardware problem of ICMIS server. A new server for the audio recording of court hearings and their incorporation with ICMIS will be provided with the assistance of JUST/USAID project. As soon as the server is provided, work will start with the recording of the files in the electronic system, after the training of the staff of this court by the Ministry. Frequent training is organised upon request of the courts as regards the proper use of the case management system. Such trainings for the courts which use considerably the system have been short period training sessions and for specific issues. Training is provided by the Ministry of Justice for almost each district or appeal court in order to ensure proper functioning of the electronic recording of cases during the daily work with the system. Judicial archive During 2014, Ministry of Justice held an intensive consultation process with the courts and other stakeholders of the system to enable the filing of their archive because of the problems presented by them. Following such consultation, Ministry of Justice took the initiative to draft the DCM no. 858 dated 17.12.2014 "On the creation of the state archive of the judicial system". Such decision creates a special structure under the Ministry of Justice to administer and manage the archive of the courts. Disciplinary proceedings against judges Ministry of Justice during 2014-2015 has deposited with the HCJ 25 requests for disciplinary proceedings against 23 judges5. There have been proposed:
From the total of the deposited requests, there have been processed 18 requests for 18 judges, in relation to which it has been decided: 2 judges are dismissed from duty; 8 judges are subject to the measure reprimand with warning; 1 judge is subject to the measure reprimand; 1 judge is transferred for 2 years to another court; 1 judge is released from disciplinary proceedings; the request of the Minister of Justice against 5 judges is dismissed. Inter-institutional cooperation in the fight against corruption in the judiciary During 2014, inter-institutional cooperation in the fight against corruption in the justice system is strengthened. After cooperation with HIDAACI, Minister of Justice proposed to the HCJ dismissal of 3 judges, in relation to whom it was found irregularity in verification of their assets, and the legal procedures are initiated even in three other cases against judges, based on the information submitted by HIDAACI. On the other hand, 6 functionaries of the justice system accused for corruption and concealing assets are subject to the investigative and judicial actions:
By decision no. 143, dated 05.12.2014, HCJ set up a working group "to govern the concept of the judge who is promotes recently in the frame of the promotion procedures, who is not qualified in the next promotion". By decision no. 1 dated 26.01.2015 the Council approved the proposal of the working group to list at the bottom of the list the candidates who within a two year period are appointed/transferred or appointed to management functions, in court or reflect in the list, in an identifiable way, such attribute of theirs. This will improve the process of appointment and transfer of judges and creates stability in the functioning of courts or protection of integrity of the judge. Currently, for each issue which is subject to discussion, each decision is reasoned, is numbered, is identifiable and it clearly contains the reasoning behind it. Moreover, concerning this measure, the High Council of Justice has set up a working group that will draft the internal rules of HCJ functioning. This working group will see the possibility to reflect even the establishment and functioning of the permanent commissions within the Council, which activity and functioning will be quite important in the decision-making process of the Council and it will increase the quality of reasoning of decisions. The Council, in the agenda of the next meeting to be held in March 2015, will examine and approve the draft decision "on the scheme of professional and ethical evaluation of inspectors and chief inspector of the HCJ". Such evaluation system serves to the vision of transforming the Inspectorate into an efficient, professional structure which has integrity in performing its main function of monitoring performance of judges and increasing public trust and the trust of the community of judges in this structure. The draft is prepared with the EURALIUS IV assistance and it has been requested the opinion of international partners, EU Delegation, OSCE. Until 24.02.2015, it has been collected the documentation for 248 judges, of whom:
During the period 01.01.2014 - 31.12.2014 the number of complaint submitted to the High Council of Justice is 881. 855 complaints are submitted via mail service and 26 complaints are submitted via electronic mail. Out of this number of complaints, 200 complaints are verified, 681 are archived after completion of the preliminary examination and finding that they were manifestly ill-founded. Out of 200 complaints, 26 are sent to the Ministry of Justice for competence, 1 is sent to the HIDAACI for competence and 11 are sent to the General Prosecutor's Office for competence. High Council of Justice, during December 2014- January 2015, with the support of OSCE Presence in Albania published the leaflet entitled "How to address a complaint to the High Council of Justice". The aim of such leaflet is to inform the citizens of the acts or omissions of judges which may be subject of their complaint before the High Council of Justice. The publication explains the way complaints are addressed, how the Inspectorate of the High Council of Justice verifies them by conducting the respective inspection. This publication will be found in the premises of the court where the citizens may access it or easily consult it. During the two months of 2015, 113 complaints are deposited with the HCJ, two of which are sent to the Ministry of Justice for competence and 1 is sent to the General Prosecutor's Office for competence. By decision no 3 dated 26.01.2015 the High Council of Justice decided to appoint a member of the High Council of Justice as representative of the State Commission for Legal Aid. The High Council of Justice in the plenary of 26.01.2015 discussed on the thematic inspection of administrative courts and thematic inspection of the courts of first instance and appeal, concerning domestic violence. The Inspectorate prepared action plans to conduct such two inspections which are expected to be approved in the next HCJ meeting. In the plenary of 04.02.2015, HCJ discussed on the preparation of a calendar of conduction of annual analysis in the courts of first instance and appeal as regards their activity during 2014. Court decisions are published in the portal www.gjykata.gov.al. Ministry of Justice upgrades the portal on frequent basis in order to facilitate access and improve information. The company administering ICMIS prepared a form to record the judicial decision with anonymous personal data in order to comply with the respective law. It is up to the judges to make use of this new ICMIS application. Only the decision is published in the central portal gjykata.gov.al. HCJ decisions are published on regular basis on the official website of the institution. Concerning the publication of decisions of the courts, this measure is a responsibility of the MoJ. For the purpose of organising the activity, on 21.11.2014, in the premises of the Ministry of Justice it was organised the workshop with representatives of three institutions, Ministry of Justice, Commissioner for the Right to Information and Personal Data Protection and High Council of Justice to be presented to and to discuss on the steps that will be taken throughout the process. During 2014, a total of 25 chairs of courts are appointed. In the meeting of 24 February 2014:
HCJ, in implementing the Decree of the President of the Republic no. 7818/2012 concerning the Court of First Instance, Lushnja, by decision no. 87, decided to transfer one judge of this court to the court of first instance of Tirana and propose to the President of the Republic the appointment of another judge K.M who won the selection competition for the Administrative Court of First Instance, to the Court of First Instance of Tirana. The judges are decreed by the President of the Republic. By decision no. 97, the appointment of a judge to the court of Appeal of Korça was proposed to the President of the Republic and he was decreed. In implementing the Decree of the President of the Republic no. 7818/2012, it was proposed and decreed by the President of the Republic the appointment of two judges to the Court of Appeal for Serious Crimes; 1 judge to the First Instance Court for Serious Crimes. The enforcement of the Decree of the President of the Republic no. 7818 dated 16.11.2012 has been the priority of work of the HCJ meetings. During 2014:
There is no court to have a higher number of judges than the number defined by decree of the President of the Republic. On 04.11.2014 by order of the Prosecutor General, was approved the Regulation no 1 "On some amendments to the regulation on organisation and functioning of the Prosecutor's Office Council" to reflect the recommended amendments and addenda:
In order to regulate the process of written competition and hearing sessions by the Prosecutor's Office Council for the appointment of candidates for prosecutors, who do not come from the ranks of magistrates, it has been approved the instruction of the Prosecutor general no. 3 dated 11.02.2015 "On the procedure of competition of candidates for prosecutor who have served as judges, prosecutors or judicial police officers". The High Court has achieved positive results as regards its role and functioning in justice administration, including: unification of the case-law so as to property and quickly guide the lowest courts; reduction of the number of accumulated cases through administrative measures of this court. A few days ago, the High Court and the German Foundation "Hanns- Seidel" promoted the book "Standards of Civil, Administrative and Criminal trial- through the unifying decisions of the High Court (2000-2014)". The publication analysis and handles unifying decisions of the High Court during 2000-2014 in the civil, administrative and criminal law. This is the first publication of its kind as regards the unifying decisions and it is a document which is expected with interest by judges, jurists and academia in the country. Currently, the High Court is taking the necessary measures as regards the review on time and without delay of the judicial cases recorded with the court. In the framework of the justice reform, recently, through the legislative amendments, efforts have been made to introduce the selection mechanisms which aim at lowering the number of cases deposited for review with the High Court, which is currently facing a considerable number of appealed cases. Among such mechanisms it is to be mentioned the filtering system of cases filed with the High Court. Currently this filter is foreseen in the law on administrative courts, which defines the cases that are deposited to be reviewed by this Court. There is still no such filtering system for the civil and criminal cases. However, the amendments to be made to the civil and criminal procedure code foresee the use of this system even for such cases. Another positive step in the process of acceleration of adjudication of administrative cases by the High Court are the legislative amendments made to the law on administrative court, which inter alia, foresee new rules about the composition of the judicial panel trying these cases, by reducing the number of judges of the judicial panel in trying a certain category of cases, from 5 to 3 judges. Moreover, another measure which affects the quick processing of cases is the handling in the law of the practice of notification of parties in trial. The situation created because of notification of parties had lead to confusion and postponement of the judicial processes of the court, and consequently it was needed to find the relevant and quick legal remedies to settle the problem. By now, according to several new legal amendments, the parties become informed of the holding of the trial through the announcement of the notification in the premises of the High Court and on the official website of the Court, without the need to serve the notification document. Because of these amendments to the law on administrative courts, as of September 2014 when they entered into force, it is observed a considerable increase in the number of administrative cases reviewed by the Administrative College. It is worth mentioning that by order of the Chair of the High Court, in cooperation with the judicial panel, in 2014 it was decided the adjudication of all the accumulated civil cases of 2010 which are not reviewed by the three colleges of the High Court. As a result of this measure it is made possible the review of all the civil cases dating back to 2010. This was done in the frame of ongoing measures taken by the Chair of the High Court, including the approval of the order to try cases by chronological order of their recording with the Court, as a result of which it was made possible the adjudication of cases pending during 2006-2007. Currently the High Court is reviewing civil cases of 2012 and criminal cases of 2013 and administrative cases of 2012. With this rhythm, it is expected that within the second semester of 2015, the Civil and Administrative College will start the review of cases recorded in 2013 and the Criminal College will review cases of 2014. Referring to concrete figures, based on the statistical report prepared by the High Court in 2014 there have been recorded a total of 6698 new cases or 1313 files more than the previous year. Meanwhile, the High Court has reviewed and taken the decision in relation to 6448 court cases. If we were to refer to the work of three Colleges of the High Court, it results that:
Even though the number of cases reviewed during 2014 has increase, almost 2000 cases, the High Court has recorded for review a number of 11 357 judicial files. At institutional level, the chair of the High Court approved the new structure of the court reflecting the amendments to the organic law of the High Court concerning the increase of the number of judges by two new members (total of 19 judges) which was consequently followed by four additional legal assistants and three employees of the judicial administration. Moreover it has been completed the process of recruitment of legal assistances and each judge of the High Court has already two legal assistants, selected based on high professional criteria, making possible for 34 legal assistants to work at full capacity, and resulting in the increase of the number of cases settled by this court. For 2015, based on Law No. 160/2014 "On the Budget for 2015", is approved an increase of 30 employees on judicial administration, an additional budget investment worth 70 million ALL or 50% of the investment budget for the 2014 and an increase by 7 million ALL budget for the operating expenses compared with the budget for operating expenses in 2014. Regarding infrastructural improvements, for the Court of Appeal of Durrësi is increased the space area of work for accommodation of judges and one courtroom, thus improving the work conditions and trial conditions in this court. This investment was realized within December 26, 2014. In the Judicial District Court of Fier, it has been considered relevant the construction of a new building through an investment. However, for the time being was invested for the improvement of the public service premises, in order to provide as qualitative and transparent service as possible. This investment was realized within December 26, 2014. In the Judicial District Court of Berati, it has been considered relevant the construction of a new building through this investment. However, for the time being, was realized a modest investment to improve the security elements in the court. The court has completed full investment within November 2014. In the Judicial District Court of Lushnja, investment made possible the provision of more space for the archive office and access to the persons with disabilities and also improvement of premises of public reception. The court has completed full investment within November 2014. Works have started for the construction of the building of the Court of Appeal of Shkodra. Currently these works are planned to be extended in two years 2015-2016. Based on the budget approved by law in investments for 2015, financing of this investment is planned to be completed in 2016. The construction of the new building of the court will create the optimal conditions of work and trial according to the defined standards linked to: offices for judges and administration, courtrooms, public service premises, access of persons with disabilities missing so far. It has been completed the adaptation of premises of the Administrative Court of First Instance Durres, which is accommodated in the premises of the Local Judicial Enforcement Office of Durres. This investment has guaranteed the premises required for the accommodation of judges and court administrative staff. Moreover, it is completed the investment to adapt the premises where the Administrative Court of First Instance Vlora (in the building of the Judicial District Court of Vlora) is located. This investment also made possible the creation of public service premise which was missing for the court before. Concerning the provision of accountability for the system of admission with the Magistrates' School and judicial career, the School is implementing the obligations resulting from the amendments to its law. Currently it is being prepared the competition for recruitment of candidates for magistrates with all its phases, the general exam, psychological exam and professional exam. The next competition will take place in September 2015. The continuing training programme and the training calendar have been drafted and approved by the Governing Board. The calendar is being applied on regular basis. It will be completed in July 2015. The School, every three months, shall send detailed information to the courts concerning the possibility of application to TAIEX for activities organised in EU Member States. Information is sent in October 2014, December 2014 and March 2015. Concerning administrative justice, the School has organised and it organises on frequent basis, training activities for the judges of these courts. In concrete terms, during the period March 2-14- March 2015, the following training activities are organised:
Other training activities are planned to be held in continuation. Training on Professional Ethics is organised on regular basis in the School. Training activities are organised on 16, 17 April and 9-11 July 2014. 3 one-day trainings held on the 2nd, 3rd and 4th of March for the candidates for magistrates and incumbent judges were completed today.
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