Tuesday, August 28, 2012

The Rule of Law in Independent Kosovo

Europe Report N°20419 May 2010
EXECUTIVE SUMMARY AND RECOMMENDATIONS
More than two years after declaring independence, Kosovo struggles with uneven rule of law and a weak justice system that is failing its citizens. The police, public prosecutors and courts are erratic performers, prone to political interference and abuse of office. Organised crime and corruption are widespread and growing. Realising that prosperity, relations with the European Union (EU) and affirmation as an independent state depend on the rule of law, the government has taken important steps, replacing key officials and passing long-delayed reforms. But critical weaknesses remain, notably in the courts, and the government, supported by the international community, must act swiftly to curtail them.
Kosovo suffers from the widespread impression that it is run by a lawless political elite in control of every aspect of society. The EU rule of law mission, EULEX, is investigating widespread corruption at the highest levels, and its efforts to date have shown gaping holes in regulation and enforcement. This reputation keeps investment out and the country mired in poverty. A two-pronged approach is needed, tightening institutions and regulation to close off opportunities for corruption while investigating the worst of past abuses.
In some respects, Kosovo’s reputation for lawlessness is exaggerated. The country has a low rate of violent crime, inter-ethnic crime is rare, and Serbs in most of Kosovo live securely. But the judicial system is weak. Few crimes end with their perpetrators in prison. Court procedures suffer from widespread distrust, fearful or unwilling witnesses and shoddy work by prosecutors. On the civil law side, it is all but impossible for citizens and domestic and international corporations to enforce their rights in court. Property disputes are widespread, and since they cannot be reliably resolved in court, occasionally degenerate into violence. The dysfunctional civil law system, choked with a backlog of cases stretching back to 2000-2001, scares off investment. Demoralised and exhausted judges both struggle under the case backlog and are dogged by a reputation for corrupion and favouritism. Plaintiffs endure baffling rounds of appeals, remands and delays, often featuring deliberate errors. Bribery and even violence have become attractive means of extrajudicial dispute resolution.
The police are one of Kosovo’s genuinely multi-ethnic institutions, with Serbs and others integrated in all regions and at all levels. They have strong public support and a willing manpower pool but are poorly managed and lack vital skills as their leadership increasingly neglects training. The force can deal effectively with routine, low-level crime but has a limited ability to fight organised crime, financial crime and fraud, drugs and human trafficking and other specialised challenges. It has a hostile relationship with the public prosecutors, who are charged with leading all police investigations of serious crime. The consequence is that the police do as they please, and the prosecutors are under-serviced and overwhelmed.
The institutions that monitor the justice system – the Kosovo Judicial Council (KJC), which oversees judges, the Police Inspectorate of Kosovo (PIK), and the justice ministry, which supervises prosecutors – are not working properly. The Council is paralysed by lengthy vacancies in key positions. Its components, notably the Office of Disciplinary Counsel and the Judicial Audit, responsible for investigating corruption and other problems in the courts, work well; still, their findings remain without effect because the full body cannot act. The ministry suffers from weak leadership and a lack of political support, though a new minister appointed in April 2010 is expected to improve performance.
The justice system’s weakness is visible above all in Kosovo north of the Ibar River, the small Serb-held zone that Serbia in effect controls. There is no real criminal justice in the North, as its Serbia-run courts cannot cooperate with the UN-mandated Kosovo Police (KP). Nevertheless, the North’s crime levels are similar to those of Kosovo as a whole, and the small local population thrives on handouts from Belgrade. The border between Kosovo and Serbia has become much better controlled recently, and arrests, mainly in Serbia, have cut down drastically on smuggling. But the North remains a stumbling block in relations between Kosovo and Serbia and between both of these and EULEX. Out of excessive caution, the EU has not based its police in the North, leaving the area free for organised criminal gangs. Its efforts to replenish the Mitrovica court with local judges have failed, while offending both Pristina and Belgrade.
This report surveys the domestic legal system; a subsequent report will cover international aspects of the rule of law issue.
RECOMMENDATIONS
To the President, Government and Assembly of the Republic of Kosovo:
1. Support fully efforts to investigate high-level corruption and prevent its recurrence.
2. Adopt urgently the key framework laws for the judicial system, including:
a) the laws on courts, prosecutors and the judicial and prosecutorial councils; and
b) the amended criminal code, code of criminal procedure and code of contested procedure.
3. Appoint urgently the remaining members of the Kosovo Judicial Council.
4. Establish a high-level committee bringing together donors and international representatives with their counterparts in the Kosovo government, to:
a) put the government back in control of important legislative and organisational decisions related to the rule of law; and
b) compel the police, prosecutors and internal affairs and justice ministries to cooperate in the fight on crime.
5. Double, at a minimum, the number of judges and prosecutors and bring their salaries and benefits in line with those of other branches of government service, before the full implementation of judicial sector reform and no later than 31 December 2010.
To EULEX:
6. Provide technical help and political support to the PIK and the internal investigations unit of the KP.
7. Increase the capacity of the Mitrovica district court by:
a) facilitating the appointment of Albanian and Serb judges without violating the integrity of Kosovo’s jurisdiction; and
b) transferring appropriate tasks to qualified local and international legal staff.
To the Kosovo Police, the State Prosecutor and the Internal Affairs and Justice Ministries:
8. Improve prosecutor-police cooperation by establishing joint teams for serious cases, including specialised ones for financial and other complex crimes.
9. Mandate training for police and prosecutors in specialised work on organised crime, drugs and human trafficking, financial crimes and counter-terrorism.
10. Establish urgently a database of crimes and cases, so that police and prosecutors can work together and formulate an effective anti-crime strategy.
To the Government of the Republic of Serbia:
11. Take steps to support strengthened rule of law in Kosovo, including
a) return all official documents, including cadastral and property records and court files taken in 1999;
b) support appointment of Serb judges under Kosovo law; and
c) cooperate with EULEX and Kosovo on developing cross-border strategies to impede human trafficking and drug smuggling.
To the International Community in Kosovo:
12.  Support EULEX in investigating and prosecuting high-level corruption and acting in the North of Kosovo.
13.  Maintain strong pressure on the government to implement the rule of law and ensure that international advice and assistance are coordinated and consistent.
Pristina/Brussels, 19 May 2010
(Source:)
Photo credit: Ivan S. Abrams

Supreme Court of Albania

The Supreme Court of Albania  is the highest court of Albania and is the final court of appeal in the Albanian justice system. The Supreme Court of Albania is composed of fourteen judges: the Chief Justice of Albania and thirteen Judges.


Background

Supreme Court, based in Tirana, is the highest judicial power in the Republic of Albania. Its main mission is to review, upon request of the parties, the decisions of the courts of lower instances.

History

The period 1913-1920 marks the first steps towards the creation of the institutions of the new Albanian state. The Assembly of Vlora and the Government of Ismail Qemali took measures about the re-organization of justice in the new independent state. With the “Kanuni i Zhurise” (Canon of Jury), approved in 1913, was predicted the creation of “Court of Dictation” and also the courts of first instance of Sub-prefectures, which were competent on judging the civil cases and offences, and also was created the court with a jury, where representatives of the people judged the penal cases. This system, that was applied in a case of Elbasan, did not give the expected results, as a result it was cancelled by a decree, date 4 June 1914, when was put in application the law about the courts of justice in Albania, in base of which the Initial, Appeal and “Dictation” courts were created. Also, by decree date 4 June 1914, were made some small changes in the organization of justice of 1913.
Period 1920-1939
During the years 1920-1939 the main problems in the justice field, that represented a great importance to our state, were the legal reform and the re-organization of the judicial institutions and the qualification of their staff. Independently of the fact that the first steps were done with “Kanuni i Zhurise” in the years 20 started to be crystallized better the organization and the functioning of the judicial system.
Until 1925 the process in the civil and penal cases was managed by:
The Courts of Peace
The 1st level Courts, which were divided in Initial courts and Collegial Courts. The Court of Dictation, ( this was the nomination of the Supreme Court) which was divided in Civil Chamber and Penal Chamber The Courts of Peace were organized in every sub-prefecture’s center and in base of such organization were divided in Courts of Peace of the 1st, 2nd and 3rd level. The Courts of Peace and the Initial Court were constituted by one judge and the Collegial Courts were constituted by one judge (the Initial Judge) and two Members. Every branch and Court of Dictation was composed by the Chairman, four Members and one Assistant-member. By decree-law on the organization of the courts of justice, date 2 May 1925, the Courts of Justice were organized in:
First level Courts
Appeal Courts
Dictation Courts (Supreme Court), with its center in the capital. The Dictation Court was still organized in two Chambers:
The Civil cases Chamber;
The Penal cases Chamber.
One Chairman, four Members, one Assistant-member, one Chief secretary and the necessary number of secretaries constituted every Chamber of the Dictation Court clerks and servants. Near to the this court were situated one Chief prosecutor, one Assistant Chief prosecutor, one secretary, one keeper of records-archivist and one servant. Each of the Chairmen of the Dictation Court presided his Chamber, but in case of the general meeting, the position of Chairman belonged to the Chairman of the Civil Chamber. During the period 1920-1940, the Dictation Court is known for its decisions of a high professional level, in a regular trial process. In the decisions of the Dictation Courts can be noticed the high quality and the scientific and convincing argument. General characteristic of the judicial practice was that the judges made efforts to protect the courts independence in distributing justice. In its decisions, the Dictation Court has showed its honesty and impartiality.
Communist Period (1944-1990)
The law for judicial organization of 1951 divides the Supreme Court into juridical colleges:
Penal college
Civil college
Military college
Disciplinary college.
Every College judged its own cases of material competence with a panel composed by the Chairman, one member of the Supreme Court and two assistants.
Interesting is the fact that the Disciplinary college used to deal with disciplinary records of popular courts, chairman and members of military courts, members of Supreme Court with a jury made of 1 Chairman or the vice chairman and 2 members of Supreme Court appointed by the Chairman. Supreme Court judged in its plenum composed of the chairman, vice chairman and all the members of the Supreme Court. The directions if the Plenum of the Supreme Court like the whole judicial thought were directed by the policy and the ideology of the communists regime. Especially, this influence has affected seriously the penal aspect, with wide interpretations on Penal Code. The generalizations of the judicial practice made by the Supreme Court have served to orientate the lower level courts so they can judge cases according the political imperatives, the ideology and that time legislation of a dictatorial state. Also the Plenum of the Supreme Court have issued directions in civil, familiar, heredity, labor and procedural matters.
Post Communist time (1992)
The collapse and fall of totalitarian communist system brought great necessary changes in all fields of life and an adoption of contemporary judicial systems. Important changes were needed also in the area of Justice so an independent judicial system could be applied in for a justice which will be focused on the principles of legacy and equality of people in front of the law based on full respect of justice.
With law 7491 dated 29.04.2001 “About the main constitutional dispositions, People’s Assembly decided that the Court of Cassation, Courts of Appeal, Courts of first instance and Military courts would compose the judicial system in Albania. As we see the name of Supreme Court has changed into Court of Cassation, which is the highest judicial authority. According to this law People’s assembly upon President’s proposal elects Chief Justice and his vice.
Judges are elected by People’s Assembly once in 7 years and reserve the right to be reelected.
Court of Cassation cannot deal with any matters of first instance, whereas regarding matters of second instance only when provided by law.
Today, the Supreme Court of the Republic of Albania function based on law nr. 8588, dt. 15/3/2000: “On the organization and functioning of the Supreme Court of the Republic of Albania”.
It is organized in a Civil and Penal panel and also in Joint Panels which judge cases defined by law. On the conditions of the new democratic system towards a democratic and united Europe the Supreme Court of the Republic of Albania continues its efforts for the application of the principles of the state of law.

The Kanun and the Early Constitutional Laws

Albanians have an old tradition for law and regulations. Among the old laws is the Kanun (Canon), a sort of constitution respected by majority of Albanians throughout centuries. The Code of Lekë Dukagjini, which according to some writings was codified in the 15th century, is distinguished among several Kanuns. Kanun has provided some level of self-government for the Albanians under foreign rule and thereby democracy has been exercised. According to the Kanun, important decisions are made by Conventions of the Elderly. During the National Renaissance of the 19th century, Albanians founded the League of Prizren and in the meantime a provisional government for the Albanian-populated districts of the Ottoman Empire. The New Kanun was adopted as a program and statute for the governing bodies. This is often regarded as the beginning of the modern Albanian politics and diplomacy. In 1913, Albania was recognized as an independent country, yet the European powers decided for a constitutional monarchy headed by a European monarch William of Albania. The Constitution adopted for this period did not have much effect partially due to the rebellions against the foreign king and partially due to World War I. The 1913 borders arranged by European powers left more than half of the Albanian-populated territories outside Albania’s borders. However, right after World War I, Albania was in danger of being re-partitioned between Balkan countries and Italy. In opposition to this, Albanian leaders held Congress of Lushnjë at which they decided to defend the sovereignty of their country and fight against any foreign invasions. An interim constitution (officially known as Statute) sanctioning the monarchy was also passed. During the 1920s Albania experienced political instability and rapid succession of governments. In 1924 a revolutionary group took over by force, while six months later Ahmet Zogu crushed the revolution. In 1925 an Albanian Republic was declared under a constitution “based on the French model of the Third Republic” (IPLS). The Republic had a bicameral legislature (Chamber of Deputies and Senate) that elected a President, who was head of state and of government (Council of Ministers) for a seven-year term. Three years later, in 1928, Albania was proclaimed a democratic and parliamentary kingdom. The legislative organ consisted of one chamber, while the executive power belonged the head of state, the King, and the cabinet composed of the Prime Minister and other ministers. With the Italian fascists invading Albania in 1939, this Constitution was abolished. Fascist collaborators in Albania offered the throne to Victor Emmanuel III, King of Italy, an act that heavily violated the Constitution of the Albanian Kingdom. The Quisling government established by the Italians passed a new Constitution in 1939.

Constitution of Albania


The current Constitution of Albania was adopted on 28 November 1998. It defines Albania as a parliamentary republic. According to the current Constitution, the Republic of Albania has a unicameral legislature composed of 140 deputies, who elect the head of state, the President of Albania, and the Council of Ministers that consists of the Prime Minister, Deputy Prime Minister and Ministers. The 1998 Constitution is divided into 18 parts which sanction a parliamentary democracy, people’s sovereignty and fundamental rights of the citizens as well as other important points. The Constitution is said to have fulfilled all the requirements for a modern European constitution.[1] Due to political instability, Albania has had many constitutions during its short history as an independent country. Albania was initially constituted as a monarchy in 1913, briefly a republic in the 1920s, then it returned to a democratic monarchy in 1928. It later became a socialist republic until the restoration of capitalism in the 1990s.

Rule of law/Human rights in Albania


Head of OSCE Presence, Ambassador Eugen Wollfarth, hands certificates to children participating in an anti-discrimination event co-organized with the Commissioner for Protection from Discrimination, Tirana, 11 April 2011. (OSCE/Joana Karapataqi)

Head of OSCE Presence, Ambassador Eugen Wollfarth, hands certificates to children participating in an anti-discrimination event co-organized with the Commissioner for Protection from Discrimination, Tirana, 11 April 2011. (OSCE/Joana Karapataqi)

Rule of law

The Presence assists the national authorities with legislative and judicial reform, and supports the development of an effective and transparent legal system. 

Legislative support

The Presence produced a report on the legal sector that looked at all major law-related institutions and offered recommendations on projects to increase transparency in courts and other bodies in the legal sector. It regularly provides comments on draft legislation, which is usually reviewed if it is of broad public interest or affects other projects being implemented by the Presence. It works to increase public participation in drafting legislation and has assisted the drafting of the State Police Law, the Law on the Office of Internal Control, probation legislation and secondary legislation to implement these laws.
The Presence supported the creation of the Office of the People’s Advocate and continues regularly to assist this institution. It also supports the Civil Service Commission with its efforts to increase professionalism and freedom from political interference, and has provided input on draft legislation to create administrative courts.

Judicial reform

The Presence’s Fair Trial Development Project has published three reports, which looked into courts in Tirana and major cities, as well as into criminal appellate proceedings. It is currently preparing a study based on a closer review of civil trial proceedings in courts.
The Presence follows the implementation of the Law on Protection of Witnesses and Collaborators of Justice and its secondary legislation. It holds a deputy chair position in the International Consortium Working Group on Witness Protection, which works with the police.
The Presence is also working on a project to raise the ethics standards of the judiciary and to modify legislation in order to provide effective remedies when ethics violations are noticed.

Human rights

Activities to promote minority rights are an important part of the Presence's work, particularly efforts to improve the situation of Roma people. In co-operation with its four Project Offices, the Presence assesses the conditions of pre-trial detention facilities and monitors the observance of prisoners’ rights to be treated with humanity, dignity and respect while in detention.
Working with civil society organizations, support was provided in the drafting of the Law against Discrimination. The Presence is helping to draft secondary legislation to help implement this law.
(Source  Presence in Albania )

Courts & Judgments

Albania's civil law system is similar to that of other European countries. The court structure consists of a Constitutional Court, a Supreme Court, and multiple appeal and district courts. The Constitutional Court is comprised of nine members appointed by the Assembly for one 9-year term. The Constitutional Court interprets the Constitution, determines the constitutionality of laws, and resolves disagreements between local and federal authorities. The Supreme Court is the highest court of appeal and consists of 11 members appointed by the President with the consent of the Assembly for 9-year terms. The President chairs the High Council of Justice (HCJ) which is responsible for appointing and dismissing other judges. The HCJ is comprised of 15 members--the President of the Republic, the Chairman of the High Court, the Minister of Justice, three members elected by the Assembly, and nine judges of all levels elected by the National Judicial Conference.
The remaining courts are each divided into three jurisdictions: criminal, civil, and military. There are no jury trials under the Albanian system of justice. A college of three judges, who are sometimes referred to as a "jury" by the Albanian press, render court verdicts.
Source: U.S. Department of State

Albania's assembly

Albania's unicameral assembly (Kuvendi) consists of 140 seats, 100 of which are determined by direct popular vote. The remaining seats are distributed by proportional representation. All members serve 4-year terms. The Speaker of Parliament has two deputies, who, along with 13 parliamentary commissions, legislate Albanian affairs.
The President is the head of state and elected by a three-fifths majority vote of all Assembly members. The President serves a term of 5 years with one right to re-election. The Prime Minister is appointed by the President and approved by a simple majority of all members of the Assembly. The Prime Minister serves as the Chairman of the Council of Ministers (cabinet), which consists of the Prime Minister, Deputy Prime Minister and other ministers. Members of the Council of Ministers are nominated by the Prime Minister and approved by the President.
Source: U.S. Department of State

Monday, August 20, 2012

4th Judicial Reform Index for Albania Released


USAID, 4th Judicial Reform Index for Albania Released


USAID, 4th Judicial Reform Index for Albania Released
Tirana, April 10, 2009    The American Bar Association Rule of Law Initiative (ABA ROLI), with support from the U.S. Mission through the United States Agency for International Development (USAID), released today the 4TH Judicial Reform Index for Albania, at an event at the Magistrates School in Tirana.
“A strong judiciary is the key to Albania’s long-term success,” said USAID’s Mission Director to Albania, Roberta Mahoney in remarks at the ceremony. “The United States Government is firmly committed to the development of an effective, impartial and democratic judicial system in Albania.”
Mahoney urged legal professionals to use this assessment to build a transparent and fair judicial system comprised of professionals guided by principles of integrity and independence. She also underscored the importance of justice sector reforms to foreign direct investments and reforms in Albania’s public administration.
The Judicial Reform Index (JRI) is an assessment tool implemented by ABA ROLI in order to assess a cross-section of factors important to judicial reform in emerging democracies. The JRI is designed to help international organizations, donors, and local partners to better target judicial reform programs by creating a quantifiable measure of their impact. It also functions as a tool to refine program implementation and monitor progress towards establishing an accountable, effective, and independent judiciary in the country.
The JRI for Albania examines Albania’s judiciary through a prism of thirty factors reflecting the most fundamental characteristics of successful judicial systems.  The JRI explores such issues as judicial education, and qualifications and appointment procedures of judges; independence and transparency of judicial decisions and judicial powers; budgetary considerations and issues of compensation; maintenance of trial records; adequacy of court staff and facilities; access to laws and other legal information; and ethics; discipline; and self-government.  ABA ROLI previously implemented JRIs for Albania in 2001, 2004, and 2006.
© 

Sunday, August 19, 2012

Constitution, Government & Legislation of Albania

Albania's unicameral assembly (Kuvendi) consists of 140 seats, 100 of which are determined by direct popular vote. The remaining seats are distributed by proportional representation. All members serve 4-year terms. The Speaker of Parliament has two deputies, who, along with 13 parliamentary commissions, legislate Albanian affairs.
The President is the head of state and elected by a three-fifths majority vote of all Assembly members. The President serves a term of 5 years with one right to re-election. The Prime Minister is appointed by the President and approved by a simple majority of all members of the Assembly. The Prime Minister serves as the Chairman of the Council of Ministers (cabinet), which consists of the Prime Minister, Deputy Prime Minister and other ministers. Members of the Council of Ministers are nominated by the Prime Minister and approved by the President.
Source: U.S. Department of State
———————————————————————
Courts & JudgmentsAlbania's civil law system is similar to that of other European countries. The court structure consists of a Constitutional Court, a Supreme Court, and multiple appeal and district courts. The Constitutional Court is comprised of nine members appointed by the Assembly for one 9-year term. The Constitutional Court interprets the Constitution, determines the constitutionality of laws, and resolves disagreements between local and federal authorities. The Supreme Court is the highest court of appeal and consists of 11 members appointed by the President with the consent of the Assembly for 9-year terms. The President chairs the High Council of Justice (HCJ) which is responsible for appointing and dismissing other judges. The HCJ is comprised of 15 members--the President of the Republic, the Chairman of the High Court, the Minister of Justice, three members elected by the Assembly, and nine judges of all levels elected by the National Judicial Conference.
The remaining courts are each divided into three jurisdictions: criminal, civil, and military. There are no jury trials under the Albanian system of justice. A college of three judges, who are sometimes referred to as a "jury" by the Albanian press, render court verdicts.
Source: U.S. Department of State
———————————————————————
Human Rights The Albanian Government's human rights record was poor in many areas in 2001; however, there were some improvements. The opposition Democratic Party (DP) alleged that the Government was responsible for the killing of one of its members while in police custody at the Rreshen police station, although a government medical team confirmed that the death was a suicide. Police beat and otherwise abused suspects, detainees, and prisoners. The DP credibly reported some incidents of police harassment of its members and of the dismissal of some of its members from official positions for political reasons. Prison conditions remained poor. The police arbitrarily arrested and detained persons, and prolonged pretrial detention was a problem. The judiciary is inefficient, subject to corruption, and executive pressure on the judiciary remained a serious problem. The Government occasionally infringed on citizens' privacy rights. The Government limited freedom of the press, although there were some improvements. Police on at least one occasion beat and detained journalists. There were a few limits on the right to freedom of assembly. Violence and discrimination against women and child abuse were serious problems. Vigilante action, mostly related to traditional blood feuds, resulted in many killings. Societal discrimination against religious and ethnic minorities, particularly against Roma and Egyptians, persisted. Child labor was a problem. Trafficking in persons, particularly of women and children, remained a serious problem.
Source: U.S. Department of State