Needs, achievements and challenges of reforming the justice system in Albania

For Albania, the 1990s marked the toppling of the dictatorial communist regime that had ruled the country for 50 years. Building a democracy was as difficult a process as it was complex. The support and experience of European countries and the US were important factors from the very first steps of creating the new state and through the first years of the democratic transition.

The Constitution of the Republic of Albania was approved by referendum on 28 November 1998. It sanctioned important principles of the separation of powers, and checks and balances between the executive, legislative and judicial powers and the principle of the independence of the judiciary.

During the 18 years following the approval of the constitution, , some amendments were made in the judicial sector, but they did not yield the required results. Criminality in general, and organised crime and corruption in particular assumed larger dimensions, spreading out into public officials and civil servants, such as ministers, members of parliament, judges and prosecutors. There were instances when corrupt judges and prosecutors favoured the perpetrators of crimes, and even dropped cases against them. Citizens increasingly felt the flourishing of impunity and inequality in judicial decisions, whereby people with political or corruptive influence were favoured by the justice system.

The above circumstances made it indispensable to carry out the new reform of justice bodies that began with the approval of constitutional amendments and continued with the approval of the relevant by-laws. Its realisation was conducted under the leadership of a bipartisan, ad hoc Parliamentary Committee, with equal representation between the parliamentary majority and opposition, which had the assistance of a group of local and international experts, nominated by the institutions of the justice system and international justice assistance missions in the country, including in the American Embassy, the EU diplomatic presence, the OSCE presence in Albania and the United States Agency for International Development (USAID).

Justice reform gave a new shape to the organisation and functioning of the justice system, created a series of new bodies and changed the manner of their selection, to minimise the interference of the executive in judicial appointments. Its main goal was to create immunity from corruption and political connections for justice system institutions, and to increase the accountability, professionalism and impartiality of the judiciary and prosecution system.

Several countries in Southeast Europe, such as Croatia, Serbia, North Macedonia, Romania, Bulgaria, Moldova and Ukraine have undertaken similar reforming initiatives in the justice system. What unites these countries with Albania is that they had similar issues with the justice system. Just like the reforms implemented after the fall of communism, the essence of all these reforms was to separate the judiciary from politics and create an independent judiciary. The reforms carried out in these countries were not all successful, and not all reached their goals. This has been dictated by the influence that the communist past had on the mentality of politicians in the fragile democracies of these countries, who continued to exert control over the judiciary. What distinguishes part of these reforms from the case of Albania is that here, there is a harshening of measures envisaged in reforming this system, which the Venice Commission deemed as necessary to uproot the phenomenon of corruption.

One of these measures that represents an important pillar of our justice reform is the transitory reevaluation, or the vetting of judges and prosecutors who were subjected to checks of an administrative nature on assets, their integrity or ties with organised crime, and professionalism. Many judges and prosecutors were dismissed for failing to justify the assets they possessed and partially for hiding or falsely declaring their assets. This December, the vetting process in the first instance is expected to conclude; meanwhile in the second instance, as a result of appeals, the process is to continue for another two and a half years. Only 47% of judges and prosecutors successfully passed the vetting process in the first instance and were confirmed in their jobs. Meanwhile, the rest were dismissed, resigned, or the vetting process was interrupted due to other legal causes. About 7,000 citizens are believed to have addressed the first instance of vetting with complaints, alerts or information that, in some cases, helped with the more complete evaluation of the criteria of assets and professional capabilities.

The Constitution envisaged the establishment of an international monitoring operation, which oversees the vetting process through its international observers, appointed from among experienced judges and prosecutors in the European Union and the United States. The provision in the Constitution regarding this monitoring was disputed because the observers are appointed from out of the country and are not accountable to domestic bodies. In fact, it should be said that the Venice Commission, though not directly, raised the issue of the sovereignty of the people and the constitutional sovereignty. In practice, it is evaluated that the inclusion of this operation has boosted guarantees for an objective vetting process, in keeping with international standards.

The vacancies that were created in the justice system were disturbing, so, in order to alleviate them, the new justice governance bodies (councils responsible for discipline and career) increased the quotas for admission of new magistrates (judges and prosecutors) who are qualified in the School of Magistrates. Nevertheless, the increase of quotas is a process that is carried out in a gradual manner year after year, and does not lead to immediate replacement of all the people removed from the justice system. As a result of these vacancies, a considerable number of courts were reorganised and dissolved. In concrete terms, of the 22 courts of first instance, Albania currently only has 13; of the six general appeals courts, it now only has one; and of the six administrative courts,, it now only has two. The Albanian Helsinki Committee and the National Chamber of Lawyers opposed the new judicial map that infringes upon access to justice at the Constitutional Court. Still, this court viewed the restriction as proportionate, in view of the current state of the judicial system.

In the context of judicial reform, specialised institutions were created for the investigation and prosecution of high-level civil servants and citizens accused of corruption and organised crime, such as the Special Anti-Corruption Prosecution Office. Especially in the last three years, this structure is delivering considerable results, prosecuting state and local officials including a deputy prime minister, a government minister, deputy government ministers, former presidents and mayors for corruption or abuse of office in tendering processes and other forms of abuse. In the final court decision, proportion of them have been criminally convicted . As a result, the myth of impunity mentioned above has begun to be dismantled.

What are some of the main challenges and needs that the implementation of justice reform to date has displayed? The created vacancies led to difficulties in terms of access to justice, further enlarging the backlog of cases and creating delays. The Albanian Helsinki Committee receives complaints from citizens about delays in the judicial processes of seven to eight years before they are heard in the Appeals Court (General Jurisdiction) or even the High Court. Interconnecting this issue with the nature of the vetting process which, especially about the criterion of assets, led to a high number of dismissals, it may be said that if this process is carried out in other countries, it should take into consideration an achievement of more acceptable balances and, as a result, be a more proportional tool. Countries implementing such reforms need to make an objective assessment of the human resources they have available when there are dismissals from the judiciary and the prosecution system. This question mark was also raised by the Venice Commission when it provided its first opinion about the constitutional amendments of justice reform, but though Albania guaranteed that it had these resources, the practice of implementing the reform showed that it effectively did not have them. In Albania, some judges and prosecutors were dismissed from the system even for failing to justify relatively small assets or for failing to pay taxes. Albania had a tradition of informality during the first two decades of democracy and this is reflected also in many of the family transactions that have not been documented through contracts, such as the giving of loans, debts and gifts. This tradition has also been often used to justify abuses of office, as assets obtained through corruption have been hidden and passed under the name of the family members of public officials, including judges and prosecutors. However, given that the system established permanent career and accountability bodies for the judiciary and the prosecution system, if the vetting process had been conducted with a more tolerant approach, logically, the permanent bodies (High Judicial Council and the High Prosecutorial Council) should have created the necessary balance between independence and accountability, applying softer disciplinary measures corresponding to the encountered violations, without the need to dismiss them. We say this also because for the new judges and prosecutors who have been accepted into the system with increased quotas, the risk exists again for corruption as it continues to be perceived as extensive among the public.

The activity of the Career Councils of the Judiciary and prosecution systems in regard to appointments, dismissals and promotions have been deemed ineffective, and there have been cases of appointments to the same prosecution office of prosecutors and judicial police officers with family ties between them and with Assembly officials. Such data is perceived to reflect the fragility of the bodies vis-à-vis political influences, and this leads to corporatism in the justice system, something that was a concern even in the old justice system. As a result, there appears to be a need for a more proactive system, prevention of conflict of interest and the identification of corporatism cases through the strengthening of internal democracy and ethical standards.

The views expressed in this #CriticalThinking article reflect those of the author(s) and not of Friends of Europe.