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Challenges for the Constitutional Court and Democracy in Albania

–Prof. Dr. Aurela Anastasi, Professor of Constitutional Law, University of Tirana; Fulbright Research Scholar, Boston College Law School

The justice system in Albania is going through a major reform to ensure the independence of the judicial system. The constitutional amendment adopted by the Parliament in 2016 established various measures and created several new institutions aimed at combating corruption in the judiciary, as well as re-establishing public trust and confidence in its institutions. This whole process—from the drafting and approval of the amendment all the way up to its implementation—has faced various challenges.

This constitutional amendment was a serious effort to resolve the problems of the justice system in Albania, and the solution it offered has sparked fierce debates, both political and technical, related to constitutional concerns. However, the biggest challenge facing the Constitutional Court of Albania is tied to the implementation of the vetting process for the reevaluation of its judges. Vetting is the process of reevaluation of judges, prosecutors, and other officials of the judiciary system in Albania, and it assesses three main criteria: assets, background, and proficiency. Provided by the Annex of the constitutional amendment of the justice reform, the vetting process caused major discussions on its constitutionality and legitimacy. The concerns addressed have been mainly related to the fact that the vetting process would not be an ordinary process carried out by the ordinary courts but by the new temporary bodies established only for this measures, which were considered “extraordinary measures.”[1]

Debate arose during the drafting and consultation process of the constitutional amendment over whether the Constitutional Court judges themselves should be subject to this vetting process. However, at the end of the process, it was decided that all judges and prosecutors should be evaluated. Following the vetting of the Constitutional Court justices, two of the nine were suspended and one other was withdrawn. The two suspended judges are in the appeal process, while three others are still in the reevaluation process. Two of the other judges had already left their positions at the end of their term. Furthermore, the only judge who has been reconfirmed by these vetting bodies is at the end of her term too. As a result of all of these departures, though, the Constitutional Court does not have the required quorum needed to make decisions, and so the prognosis for its future is completely uncertain, and all activities of the Constitutional Court in Albania have been suspended in the meantime. The current situation is made more difficult still by the fact that the High Court of Albania is also in a very similar situation, because it is now working with the smallest number of judges it has ever had. The central concern now is how long this situation will last.

The issue of the nomination of new judges to the Constitutional Court has been a problem since the beginning. The Constitution of Albania (1998) states that the judges of both the Constitutional Court and the High Court are to be nominated by the President of the Republic with the consent of the Parliament. As we can see, the procedure is similar to that laid out by the Constitution of United States. This provision has not worked well in Albania. The 2015 analysis of the Justice System in Albania highlighted the insufficient cooperation between the President and Parliament and the lack of a clear legal basis for the procedures related to the appointments.[2]

In my opinion, the analysis importantly fails to mention another key problem, namely, that this formula was deeply politicized by the main parliamentary parties and often the procedures of nomination were blocked or delayed. The document notes the politicization of the composition of the Constitutional Court and the poor quality of its decisions.[3]

The constitutional amendment of the Justice reform changed the nomination procedure of judges of the Constitutional Court by introducing a totally different formula. Now, a plural procedure is foreseen, during which the judges are selected by the President of the Republic, the Parliament, and the representatives of the Judiciary (each of them selects 1/3 of judges). But, unfortunately, during this transitional period of the implementation of the reform, it seems that even the new formula has not been able not solve the issues. None of the judges who left—for whatever reason—has been replaced yet. The Justice Appointment Council was created by the aforementioned Amendment in order to pre-select the candidates and to rank them according to their professional merits, and it is not clear why this Council has failed to act, even though there are candidates from the President of the Republic and the Parliament. The 9 elected members of this Council have gathered in meetings, but they have not decided anything regarding these appointments. Probably they do not act because they are not yet rated by the vetting bodies. The problem in this case is that this process could be long and complex, because the members of this Council are elected every year by lot, so there should be a way to overcome it.

In my opinion, the immediate reinstatement of constitutional review in Albania should be a high priority of all the nomination bodies. This court is not only a simple constitutional body, but it is a constitutional guarantee for the protection of human rights. Moreover, the new constitutional amendment has extended this power of the Constitutional Court, which will now judge not only the individual complaints for fair trial but also for a due process of law.

Suggested Citation: Aurela Anastasi, Challenges for the Constitutional Court and Democracy in Albania, Int’l J. Const. L. Blog, May 9, 2018, at: http://www.iconnectblog.com/2018/05/challenges-for-the-constitutional-court-and-democracy-in-albania


[1] See CDL-AD(2015)045, Interim Opinion on the draft Constitutional Amendments on the Judiciary of Albania, available in http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2015)045-e, paragraph 100, and CDL-AD(2016)009-e, Final Opinion on the revised draft constitutional amendments on the Judiciary (15 January 2016) of Albania available at:  http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)009-e, at paragraph 52.

[2] See “The analysis of Justice System in Albania”, June 2015, available in http://www.euralius.eu/images/pdf/Analysis-of-the-Justice-System-in-Albania.pdf, at 35.

[3] See Explanatory notes of Constitutional Amendments, available in http://www.euralius.eu/images/Recommendations/Explanatory-Note-on-the-Constitutional-Amendments.pdf, at 4.

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Published on May 9, 2018
Author:          Filed under: Developments
 

3 Responses

  1. Fabian Zhilla

    The article helps to understand how the rapid constitutional changes in new democracies have been driven mainly by the need of eradicating both political and judicial corruption. However, it would have been very valuable if the piece would have elaborated more on the transformation of the role and powers of the high courts (i.e. Supreme Court and Constitutional Court) after the judicial reform. How the new architecture of high courts would contribute to minimize judicial corruption via judicial review and how will they help to fight political corruption without violating constitutional rights? The experience of CICIG in Guatemala has shown that often institutions vested with enormous powers to fight corruption cross the constitutional borders. Can this be the case in Albania and how the new Albanian Constitutional Court will guarantee a fair trial?

  2. Klodian Rado

    Very interesting article, which perfectly summarizes the constitutional and judicial reform that is being held lately in Albania.

    One of the main problems, as Professor Anastasi rightly points out, is that the “vetting” process has practically completely dissipated the Constitutional Court. The key question now is: what can be done to speed up the return of the Albanian Constitutional Court? This is a very important issue because the citizens cannot effectively appeal to the Constitutional Court. In addition, not exercising this right of domestic appeal, may also put in jeopardy their right to appeal before the European Court of Human Rights in Strasbourg. If the Albanian Constitutional Court does not function, would the claimants be legitimized to refer directly to the Strasbourg Court?

    There are also serious concerns regarding the number of judges left in the lower courts. If many of them will not pass the vetting process, as it seems to be the case, how to replace them as soon as possible with new judges who meet the legal criteria? The problem is that if the appointing institutions do not operate faster to replace the dismissed judges and prosecutors, practically, the Albanian judiciary and prosecution system risks collapsing.

    Another important issue is the problem of how can it be guaranteed that judges and prosecutors who will pass the vetting, will not be involved again in corruption? I hope that this issue will be solved properly.

    Finally, it should be noted that the vetoing process in Albania, which was designed with the help of many international experts and the Venice Commission guidelines, is indeed an interesting model that, after it is adapted to the specific country, can be used in other developing countries who suffer from judicial corruption. However, it is only the beginning of the implementation of the reform and of the process of vetting in Albania, so it is not yet known how effective this reform will be.

    Congratulations Prof. Anastasi for such a fantastic paper that touches so many issues, but opens also so many discussions! I hope to see this expanded into a full peer-reviewed article!

  3. […] AURELA ANASTASI describes the difficulties in Albania in strengthening the independence of the judiciary. […]

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