REMARKS OF
CHIEF JUSTICE THIMJO KONDI
DELIVERED
AT THE MEETING CONVENED BY THE PRESIDENT OF THE REPUBLIC ON: THE JUSTICE
REFORM-CHALLENGES OF THE FUTURE
(Tirane,
21 July 2003)
Honorable
Mr. President,
Ladies
and Gentlemen,
Today’s
discussion on Reforms in Justice has to be considered very important and
beneficial. I think that the proper
moment has been found to attract the opinions of the best specialists and on
this basis to reflect deeply on and make a precise evaluation of what has been
achieved in the process of reforming justice and the legal system, but also the
deficiencies and mistakes that have appeared and, what is the main thing, to
clarify our ideas, visions and objectives for the future, so that the reforms will
go as they should and give positive results for the health of the system.Today
in Albania the discussion about Reforms in Justice has become the topic of the
day in political, social and media environments, as well as in legal circles.Unfortunately,
we see that often these discussions suffer from the shallowness caused by
spontaneity, the absence of the necessary knowledge, the absence of objectivity
and commitment to principle and from tendentiousness.This being the case, I
believe that today’s discussion, being a qualified one, will make many things
clear and will open perspectives for precise objectives, judgments and
conclusions for beneficial changes and improvements.Reforming Justice and the
legal system is a process that develops over time and is of a multi-dimensional
nature. In connection with this, I
think that we should begin with some definitions.
1. What are we calling the system of Justice?
In my
opinion, only the courts of the three levels render justice, and so the
expressions “the system of Justice” and “the judicial system” should be
considered synonymous. From this point of view the prosecutor’s office and the
judicial police, on the one hand, and the legal profession on the other hand
are institutions that protect specific public or private interests and are
nothing more than representatives of the parties in the adjudication. This is the constitutional and legal system
that we have chosen.
2. Reforms in Justice are not a spontaneous
action, but a well organized and scientifically studied process that develops
and should be evaluated step by step.
3. Reformation is a multi-dimensional process
that includes the constitutional and legal aspect; the institutional,
structural, organizational and functional aspect; the economic-financial
aspect; and what I would call the human aspect, here including the
professional, ethical, and disciplinary dimension, which also consists of
reforming work practices and human mentality and conduct.
All
these aspects are included in the orienting themes for today’s discussion and
debate. In last year’s National Judicial Conference I stressed the fact that
currently the Albanian judiciary stands on a healthy constitutional, legal,
institutional and organizational basis and consequently, in general, has all
the preconditions and mechanisms necessary to enable its future functioning
according to the parameters and standards reached in western countries. These
are the premises, but in order for them to be turned into reality, we still
have much to do and many challenges to face. With all the achievements to date,
Albania, like the other new democracies in the region of Southeast Europe,
still continues to be threatened and endangered by corruption, economic crime,
unlawful trafficking, organized crime and terrorism. The state agencies that follow and investigate criminality, the
judicial police, the prosecutor’s office and the legal profession, as well as
the judicial system, have to do a better job of preparing to handle the issues
related to all of this efficiently and with professionalism. The creation of
the Court for Serious Crimes and the approval in the future of a law on witness
protection are good initiatives in this direction, but the mere approval of the
respective law is not enough. This is all
the more true in that there are many fundamental questions and issues of
principle involving the draft law itself.
I
pose the question: After the law is
approved, how will the functioning of this court, or these courts, be made
possible? There is no serious study
with this purpose. This court requires
contemporary material and human infrastructure.
The
idea of starting to function before these conditions are fulfilled would, in my
opinion, lead to an enormous failure. So far, the financial bill required for
implementation of this law has not even been determined, much less approved. In
general, the system of justice today needs a better qualified evaluation
concerning the fulfillment, the suitability and the effectiveness of its
existing legal framework. The National Judicial Conference observes with regret
that several laws approved after the Constitution, such as the Law “On the High
Council of Justice,” and the Law “On the Ministry of Justice” in a number of
their aspects and in particular provisions conflict with the constitutional
principles of the separation of Powers and the independence of the judiciary
from the executive. These serious
deviations from constitutional principles have also created a favorable environment
for the executive power to take positions against the judiciary that were
thought to have been overcome legally by the beginning of the 1990’s. A tendency of the executive, the Government
and the Ministry of Justice can be observed to attack the judiciary publicly
and apply pressure on it as a whole, in order to put it under control. Pressure is pressure, whatever you call it,
whatever epithet you put on it, “positive pressure” or “legal pressure.” Every kind of pressure, regardless of its
designation, is unacceptable because it violates the independence of the
judiciary. The Ministry of Justice is trying to obtain again, through draft
laws that have been proposed, a number of the powers that it gave up in a
natural manner. Among them, there is an
attempt by the Ministry of Justice to establish judicial activity and the work
of the judges under its control. A
clear tendency can also be observed to take competencies and to dislodge
various judicial institutions, such as the Office of Administration of the
Judicial Budget and the Magistrates’ School, or to create duality between the
chairmen of the courts and their chancellors. In addition, tendencies to
institutional, legal and organizational changes that are not principled, not
well studies, that are spur-of-the-moment and subjective have been and continue
to be seen. Such, for example, are the initiatives and practices to make the
status of a judge equivalent with that of a civil service employee of the
Ministry of Justice or, even worse, that of the political functionaries of the
Cabinet of the Minister. It should be made clear to everyone that the Ministry
of Justice is not the Ministry of the courts.
The judiciary cannot depend either on a political power or on the state
bureaucracy. The judiciary today also needs a scientific evaluation of the
situation of its structuring, functioning, workload and efficiency. The
modernization and automation of management of the courts and judicial cases and
the dissemination of information for informing the public about judicial
activity and about the decisions taken have assumed special importance. In
addition to rounding out and completing the legal and institutional framework
of the judiciary further, in contemporary parameters, the consolidation of the
system, the cultivation of values, the affirmation of healthy ethical
principles, the creation of a general professional culture have priority. This important mission has been undertaken
by the National Judicial Conference and its structures. As a new institution,
the National Judicial Conference needs to create a fuller and clearer profile,
based on the Constitution, the law and its charter. It needs to become more operational and more effective. For this it should be supported with a
budget, and it should be made possible to create a permanent structure for it. The
High Council of Justice and the National Juridical Conference are two
constitutional organs that have been planned and built in reliance on two
traditions and the practices of various western countries. Both experiences are beneficial and give
results for their respective countries.
Our challenge for the future is how to make the two institutions as
effective as possible, better coordinated, more compatible and complementary
with one another. An important aspect
is establishing institutional relations and the coordination of activity
between the Inspectorate of the High Council of Justice and the Ethics
Commission of the National Judicial Conference. The problems facing the
Albanian judiciary today are many and delicate. Its greatest challenges are success in the war against
corruption, an increase in efficiency, the grown of professionalism, the
sonsolidation of moral integrity and earning the trust of the public in
justice.
In
closing, I will set out a number of concrete proposals for improvements of the
institutional and legal framework.
1. Articles 16 and 31 of the Law “On the High
Council of Justice” should be reviewed and reformulated in conformity with the
Constitution.
2. The provisions of the Law “On the Ministry
of Justice” that give the Ministry the right of administration to inspect and
supervise judicial activity should be repealed.
3. The provisions that make the status of a
judge equivalent to those of a civil service employee in the Ministry of
Justice and a political functionary in the Cabinet of the Ministry should be
repealed.
4. Article 4/a of the Law “On the Organization
of the Judicial Power” should be repealed.
5. The provisions of the law “On the Judicial
Power” that regulate the appointment and discharge of the chancellors of the
courts should be supplemented. It
should become possible for the chancellors to be appointed and discharged by
the Chairman of the courts, or by the Minister of Justice on the proposal of
the Chairmen of the courts.
6. The territorial jurisdiction of the sections
of the district courts for particular categories of cases should be
regulated. The jurisdiction for these
categories of cases should not be expanded beyond the territorial jurisdiction
of the respective court. In small courts that do not have the possibility of a
division into sections, these categories of cases should be judges by the
judges of that court.
7. The possibility of creating a specialized
court on the national level for commercial cases, investments and international
economic cooperation should be studied.
8. The possibility of expanding the
jurisdiction of the judicial districts and reducing their number should be
studied.
9. The military courts of the first level
should be structured according to law or the law should be changed.
10. Several changes should be made in the Codes
of Procedure so that designated categories of cases would conclude in the
Courts of Appeal. The examination of these cases in the High Court should be
discretionary and would be done only for purposes of unifying or changing
judicial practice.
11. The Inspectorate of the Ministry of Justice
should be abolished, and the Inspectorate of the High Council of Justice should
be strengthened. After the approval of
the Law on the High Council of Justice, the latter remains under a shadow.
12. The status of the Chairman of the courts,
the criteria for appointing and discharging them, the time they stay in office
and so forth should be defined.
13. The system for evaluating the professional
abilities of judges should be reviewed.
In my opinion, the current system has to be considered a failure.
14. The reports of international organizations
and institutions on the Albanian judiciary should be analyzed, as well as the
studies of the World Bank, ABA-CEELI, DANIDA, USAID and others, relating to the
parameters and standards achieved by the Albanian judiciary.
These are
several concrete proposals that I think are worth discussing.
Thank you very
much.
CHIEF
JUSTICE
THIMJO
KONDI