Report

“The role of the National Judicial Conference in defense of judiciary’s independence, in setting the main direction lines regarding courts activity, court administration and improving the legal and institutional framework of judicial power”.

Thimjo KONDI

Chief Justice

Chairman of the National Judicial Conference

Ladies and Gentlemen, members and guests of the National Judicial Conference,

The annual meeting of the National Judicial Conference that we had just begun, marks a moment of special importance and a radical change in the organization and activity of this Institution, based on the time requests for change and progress that Albania also, to have a judiciary of the advanced western standards. This is made possible due to many years of experience of the functioning of the National Judicial Conference as an independent professional union of all judges of Albania.

This moment of change is based also in exploiting the best experiences of the EU states and of the USA, countries with remarkable traditions and consolidated practices of democracy, rule of law and judicial independence.

The new law on the National Judicial Conference, approved by the Assembly of Albania on 12.05.2005, which has been drafted with the qualified assistance of the distinguished American judge, Hon. John Walker, has been proposed to the Assembly by a group of Democratic Party’s MPs, on that time in opposition, and has been widely supported and voted with consensus by the MPs of the Socialist Party and all the other political forces represented at the Assembly. This is a positive example of the political will, constructive spirit and common engagement, in order to support by contemporary laws the organization and functioning of the judiciary, according to advanced standards.

The new law, brought the changing of the status of the National Judicial Conference by marking its pass from the organization as a voluntary union of all the judges of the three levels of the judicial system, in the organization based on law, as a state representative organ of the judges of the Republic, with a separate juridical personality. NJC will not be considered any more as an NGO, or syndicate of the judiciary, or as a hybrid organization with no clear profile.

After the approval of the law on National Judicial Conference, in different circles of judges and even broader, a lot of discussions and debates have been born regarding the fact that if such organization is appropriate, in order to represent and defend broadly the interests of all judges of the Republic, in such a scale that such mission may have been performed by an association of them, created on voluntary bases and belonging to the civil society area. I join the thought, as the lawmaker has decided based on the Constitution, that the National Judicial Conference, organized as a state institution, representative of all judges, build with acting structures and clearly defined duties, will be able to undertake on itself or to support consistent and coherent state policies in defending, developing and consolidating the judicial power, in order to secure it’s own self-organization, self-management and self-disciplining, in representing and defending properly the interests of the judiciary in front of the legislative and executive.

I also express my conviction that the National Judicial Conference, build according to the new law, will be able to unite and well-understand all judges of the Republic, independently of personal differences in thoughts that may exist or that may be born in different issues. Anyway, the establishment based in the law organization of the judiciary that is an exclusive prerogative of the legislative power, does not obstacle, but in contrary, it leaves a broad area of action that even judges, as all as the other citizens, can be organized in professional organizations, alone or with other legal professions for promoting certain ideas, undertaking several initiatives and for achieving certain purposes, based on the basic right of organization that is guarantied by the Constitution, in accordance with the constitutional order and the laws of the Republic of Albania. In a special way it would be well received and must be encouraged the reactivating of the all inclusive association of lawyers of Albania, created at the beginning of the 90s, which actually de facto does not function.

Ladies and Gentlemen,

The regulation by law of the National Judicial Conference is one more guaranty for the well-functioning of the judiciary and for protecting its independence.

According to the Constitution of the Republic of Albania, the judiciary consists in a power on its own, alongside with the two other powers, the legislative and the executive. He is exercised by the Supreme Court and also the courts of appeals and first instance courts which are created by law. This power which belongs to the third branch of governance by respecting its own nature which outfits to the function of doing justice is exercised in a de-centralized way, meaning that the courts of the three levels do not have institutional dependence and do not form an administrative hierarchy between them. From the other side, because the judicial power from its nature and tools on its disposition is considered as a “week” branch in comparison with the other two, it is indispensable that in report to them, it must be presented united and well organized. Such form of organization serves to the purpose of representation to the best and to the rightness of the judiciary interests as a whole, of defending the independence and the integrity of the judiciary from outside interferences and influences. This is also in function of the development and consolidation within the judiciary of the appropriate mechanisms of self-education, self-control, in bringing in front of their responsibilities regarding inappropriate behavior and for self-disciplining, as well as the secure of such factors that influence in safeguarding and strengthening the public trust towards justice.

The new law charges to the National Judicial Conference the function of defending the independence of the judiciary, the definition of the main directions of courts activities, their administration and also gives to it the right for making proposals in improving the legal and institutional framework of the judicial power, in accordance to the Constitution. On such directions, an important and basic role, alongside with the Executive Council do have the commissions of the Conference.

In such a way, the National Judicial Conference will serve as a source of ideas for reforms, elaborated and undertaken by those who are near by and in touch with the every day numerous problems of functioning of the judiciary and that are obligated to affront the challenges of time for change and progress.

This will guarantee that judges must be considered as active participants in the process of legal, institutional, organization and structural reforms of the system. The new law obligates the executive and the legislative branch, to inform and receive the opinion of the judiciary regarding their programs and recommendations which inflict on the courts activity and also specially regarding the new draft-laws that regulates the field of judicial activity.

The new law of the NJC smoothes a kind of fragmentizing and distance that is seen between the several organs and structures which are responsible for certain aspects of supporting, organizing, qualifying, administrating and disciplining the judiciary, such as HJC and the Inspectorate of the HJC, the Codification of the Ministry of Justice, the School of Magistrates and the Office for the Administration of the Judicial Budget. It creates the necessary connections and assures the appropriate coordination between them, by no touching their organic laws which are into power, by not creating contradictions or overlapping, but by keeping their harmony and complementarities between them.

The new law of NJC serves the purpose of rooting to the judges the sense that the judicial power belongs only to them and that are them who are in charge to be dedicated to the principles of justice, by acting impartially and by avoiding the outside influences and pressure. This law will increase the confidence of the judges so they can feel themselves and really be, independent and courageous in the actions they carry out and decisions they take, because at the NJC they will have a safe guaranty in finding approval and support.

At the institutional plan, the new law influences in putting the judiciary in an equal plan with the other branches of government.

There are some main purposes and goals that are seen to be achieved by the implementation of the new law on the National Judicial Conference.

The membership on the National Judicial Conference, the election at the Executive Council and the nomination at the respective commissions must not be considered as a privilege and must not be used for personal profit. Membership and participation at the structures of the Conference is not build anymore just in voluntary and populist bases, that often serves to justify the lack of responsibility of the elected for fulfilling their charged duties as it has happened even until today.

This makes a great legal and moral responsibility and needs hard work and devotion that might be considered and valued from each of us as such.

This annual meeting that we are holding has on its program as a separate topic, the constituting of the new Executive Council and Conference’s Commissions according to the law. The provided criteria on the law, about the election of the Executive Council, impose responsibility, and proportional representation of the all level courts, and also all-inclusiveness. The situated mechanism and the criteria, actually make available the possibility of the representation within 2 years, of the appeal courts and within 3 years of all the first level courts in the Executive Council.

After the election and its constitution, the Executive Council will proceed immediately with the nomination of the members of the National Judicial Conference’s commissions. Even the participations on the commissions will not be through election over voluntary bases, which practically has produced a superficial work with no efficiency and sense of responsibility as has happened until now. The proposal and the nomination of the members of the commissions will be made based on a better evaluation of moral integrity, professional skills, experience and devotion of each candidate.

Ladies and Gentlemen:

This annual meeting of the National Judicial Conference, held it’s workings in a time when the Parliament, formed after the elections of the 3^rd July and also the New government have determined as their important objective and have given advantage to war with no compromise against organized criminality, illegal trafficking, and corruption that is broadly spread in all the areas of state, economic and social life. I call to the National Judicial Conference that not only to express principal solidarity towards these initiatives, positive to their substance, but to show it’s full readiness and serious engagement of the judiciary for contributing effectively in this direction. On the other hand, it must be clear for everyone that the corruption is not fought with collective blaming campaigns and not only with propagandistic tools, but at first with legal, institutional and organizational measures, with the reduction of informality in the economic life, with the enforcement of control mechanisms and charging in front of the law and also with fair and professional judicial organs. We need to be leaded always from the principal demands of individualism of legal responsibility and the respect of due process of law.

In this point of view, it must be greeted the engagement of the High Authorities of state, of the executive and legislative for deepening of the judicial reforms, with the aim of the strengthening and consolidation of it’s independence, to improve system functioning, to implement the control and self-control of judicial branch, in order that the Albanian people must find the desired justice, and to achieve the trust and confidence on its institutions.

Is an accepted reality now, that along side of our states institutions, even the judiciary is among the most criticized on corruption issues. That comes out not only from the inside political factor and the public opinion, but also from many international institutions and organizations. To my opinion they have totally right. Not only because of the known fact that the corruption is a big bad evil, a dangerous disease that destroy the bases of the society and state, but above all, for the reason that when this disease touches even the judicial system, than the danger will be fatal, because there will be no force able to fight it.

It is not the proper time to discus how objective and well based are the critics and assessments. It’s time to reflect deeply and to strongly influence on big positive changes, which will break this negative opinion and also will totally improve the image.

I invite you all that in this annual meeting of the National Judicial Conference, to define, as a priority of priorities, the efficient fight without compromises against corruption in order to, strengthen the moral and professionalism integrity of the judiciary. It is very important that this engagement should be not as a simple public engagement with propagandistic effects, but to be accompanied with complex measures of the new National Judicial Conference structures and concrete proposals on reforming the legal and judicial system. In this direction we need to have present and make clear to the others that the judiciary does not suffer only from it’s weakness but also from the weakness and failures of other institutions that are related on an organizative and procedural way with each-other, and that are also factors and actors of the judicial process.

The reforming and improvement process of the judiciary’s activity must be expanded at the same time widely and deeply in all the state structures, of inspection and audit, tracking, investigations and penal proceeding. Justice is done only by the courts, but this needs effective work from all the above mentioned institutions and structures.

The Bar institution needs also a special attention and a deep reform. An honest and professional Bar is an important factor for the growth of the judicial standards.

Justice is a very important public service, and it’s for that reason that the public must have the right to monitor and control it, in every step it does. The impact is bigger when this monitoring is made by institutions, organizations and different associations, which have gained authority and confidence as defenders of human rights and as dignifying representatives of the civil society. Qualified surveys, observances and monitoring, taken from this prestigious organizations and associations, along side other factors, have an important impact in the improvement of responsibility and transparency of judicial activity. And it is for this reason that we always need to welcome them.

The Albanian judiciary is always been assisted from a number of projects supported by E.U. Commission, Council of Europe, World Bank, U.S.A.I.D, ABA-CEELI, O.S.B.E. etc, that have always given their positive impact. I especially want to mention the importance of the new EU mission, leaded by Dr. Colledani and guarantee him that at the National Judicial Conference they will always find a sincere spirit of cooperation and a serious partner.

Ladies and Gentlemen, members of NJC:

In this annual meeting we have the responsibility to fulfill a very important obligation that sources from the Constitution, High Council of Justice’s law and also from the new law on the National Judicial Conference that is the obligation of election of two new members on H.C.J. after the ending of the mandate of Mr. Besnik Ymeraj and Mr. Rahman Qinami.

Mr. Besnik Ymeraj, former Chief Judge of Durres Appeal Court and actually Justice of the Supreme Court of Albania, and Mr. Rahman Qinami, as judge of Vlora’s Court of Appeal and actually of Tirana’s Appeal Court, are distinguished professionals in fulfilling their duties as judges and also due to their experience and dedication have given a precious and valuable contribution for the well-going of the activity of the H.C.J. I am convinced and believe that I share the same thought with you that these two colleagues will continue to contribute actively for the National Judicial Conference.

Ladies and Gentlemen;

The election of two new members of H.C.J. from the judiciary, requests a decision making with a high sense of responsibility from this Conference. It corresponds at the same time with an important moment when a deep reformation of the institution of H.C.J. is requested so it can respond to the requests of the public opinion, political power and the same judiciary, for the radical improvement of the justice - doing standards in Albania, according to the western countries parameters, to increase the professional and moral integrity of the judges, to fight efficiently the improper behaviors and the corruption within the system, with the aim to bring a positive impact on the correct enforcement of law in all the fields of state, economic and social activity.

The election of two new members of H.C.J. happens in a time when the judiciary as a whole and H.C.J. in particular are severely criticized from the political circles and from the public opinion for a lack of control and discipline mechanisms effectiveness, utilization of the H.C.J. member position for personal benefits and privileges, existence of the conflicts of interests and incompatibility of functions, tendencies to convert judiciary in a close corporative system, incapable to correct itself and to progress.

We all must be conscientious that every time and for how long the judiciary reflects on it’s job weakness and defects, or by it’s actions or behaviors makes that the public perception on it to be negative, legislative and executive tendencies are risen, using the popular mandate, to put to the judiciary restrictions by law, even by constitutional changes, which often risk to touch the basic principles of the judicial independence, or to straiten it’s spaces of self- organization and self-administration. For how long the judiciary will not be able to self - correct and self-discipline and will not obtain the requested standards for a fair and professional justice, we will not have neither the courage, not force or arguments to prevent the political power initiatives to put restrictions to the judiciary, to constrict the activity area of its institutions or representatives, to achieve even the suprimation of institutions or certain structures.

Albanian judiciary and H.C.J. are situated also under the pressure of negative assessments by the international institutions and organizations that monitor the reforms continuity, which are preconditions for the progress of the European integration of our country.

These are some of the reasons that in our discussions and decision making in this Conference, and also in the activity of its new structures, we should express more than ever deep reflection, maturity, seriousness and high sense of responsibility. In particular, by accomplishing with responsibility the constitutional obligation for the election of two members of H.C.J. we use the most appropriate moment to change the created and widely extended opinion, according to which the membership in H.C.J. is considered a privilege, a position for personal profits, or to “wash the sins”, or a awning that ensure immunity.

The new law on NJC gives broader possibilities for a qualitative process of decision making on the election of new members of H.C.J., because the criteria and the procedures it provides are more democratic, ensure wider extension of the representation and diversity of the representative bases, avoid the concentration of the H.C.J. members in certain courts, and also put them nearer the courts that proposed them. New changes in the H.C.J. law in harmony with the National Judicial Conference law will affect in the future to avoid conflicts of interests of the H.C.J. members and for the qualitative growth of the activity of this constitutional institution.

All the Regional Judicial Conferences assembled in September, brought the respective lists of the proposed candidatures, which has been given to the membership, together with the personal data of each candidate, and also has been introduced to the public through Media. In this relatively large number of proposals we have the possibility, by respecting law requests and criteria, to select two candidates welcomed by the public opinion, obligated and dedicated to the justice ideals, that represent energy and dynamism, high morality, advanced visions and ideas and determination to make them real through their activity as members of the High Council of Justice.

At the end, I would like to express my conviction that this annual meeting will place the bases for the successful implementation of the new law on the National Judicial Conference.

Thank you for your attention.