10.6092/issn.2531-6133/6960
We know the importance that the rule of law has for our society, our democracy, and the kind of civilization we want, but we rarely take the time to think about what the components of the rule of law are and how we ensure that the rule of law is maintained. In its most basic form, the rule of law is the principle that no one is above the law. Legal documents, such as constitutions, national legislation, a court system, and international agreements, govern a state’s actions towards its citizens. Governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The rule of law is a very broad concept. It involves several aspects rooted in democracy. This paper will focus on the independence of the judiciary as part of the rule of law. Judicial independence means that judges are independent from political pressures and influences when they make their decisions, that they should not be pressured by a political party, a private interest, or popular opinion when they are called upon to determine what the law requires. Keeping the judiciary independent of these influences ensures that everyone has a fair chance to make their case in court and that judges will be impartial in making their decisions. Presidents, ministers, and legislators, at times, rush to find convenient solutions to the exigencies of the day. An independent judiciary is uniquely positioned to reflect on the impact of such acts on rights and liberty, and must ensure that those values are not subverted. The need for an independent judiciary in Albania is of paramount importance for Albania’s integration in the European Union.
application/pdf
2531-6133
6960
1
en
Jonad Bara
University of Bologna Law Review
Rule
Rule of Law and Judicial Independence in Albania
Text.Serial.Journal
https://bolognalawreview.unibo.it/
2
Articles & Essays
2017-06-20
2017-06-20
2017-05-08
2018-12-14
23-48
UBLR
Jonad Bara
2017/06/20
10.6092/issn.2531-6133/6960
23
The General Prosecution's Office
2531-6133
1
Rule
en
48
Rule of Law and Judicial Independence in Albania
https://bolognalawreview.unibo.it/article/download/6960/6706
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ARTICLES & ESSAYS                                                        https://doi.org/10.6092/issn.2531-6133/6960




                     Rule of Law and Judicial Independence in Albania


                                   BRUNILDA BARA & JONAD BARA†




TABLE OF CONTENTS: 1. What Is the Rule of Law?; 2. Judicial Independence and the Rule of
Law; 3. Judicial Independence in Albania; 4. Conclusion.


ABSTRACT: We know the importance that the rule of law has for our society, our
democracy, and the kind of civilization we want, but we rarely take the time to think
about what the components of the rule of law are and how we ensure that the rule of
law is maintained. In its most basic form, the rule of law is the principle that no one is
above the law. Legal documents, such as constitutions, national legislation, a court
system, and international agreements, govern a state’s actions towards its citizens.
Governmental authority is legitimately exercised only in accordance with written,
publicly disclosed laws adopted and enforced in accordance with established procedural
steps that are referred to as due process. The rule of law is a very broad concept. It
involves several aspects rooted in democracy. This paper will focus on the
independence of the judiciary as part of the rule of law. Judicial independence means
that judges are independent from political pressures and influences when they make
their decisions, that they should not be pressured by a political party, a private interest,
or popular opinion when they are called upon to determine what the law requires.
Keeping the judiciary independent of these influences ensures that everyone has a fair
chance to make their case in court and that judges will be impartial in making their
decisions. Presidents, ministers, and legislators, at times, rush to find convenient
solutions to the exigencies of the day. An independent judiciary is uniquely positioned
to reflect on the impact of such acts on rights and liberty, and must ensure that those
values are not subverted. The need for an independent judiciary in Albania is of
paramount importance for Albania’s integration in the European Union.



KEYWORDS: Albania; Judicial; Independence; Law; Rule




                                            UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

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           This article is released under the terms of Creative Commons Attribution 4.0 International License


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        1. WHAT IS THE RULE OF LAW?

The rule of law is a term that is often used but difficult to define. A frequently
heard saying is that the rule of law means the government of law, not men. But
what does this imply? Aren’t laws made by men and women in their roles as
legislators? Don’t men and women enforce the law as police officers or
interpret the law as judges? And don’t all of us choose to follow, or not to
follow, the law through our everyday acts or ommissions? How does the rule of
law exist independently from the people who make it, interpret it, and live it? 1

        The easiest answer to these questions is that the rule of law can never
be entirely separate from the people who make up our government and our
society. The rule of law is more of an ideal that we strive to achieve, but
sometimes fail to live up to. The idea has been around for a long time. Many
societies, including our own, have developed institutions and procedures to try
to make the rule of law a reality. These institutions and procedures have
contributed to the definition of what constitutes the rule of law and what is
necessary to achieve it.2

        The rule of law, in its most basic form, is the principle that no one is
above the law. The rule follows logically from the idea that truth, and therefore
law, is based upon fundamental principles which can be discovered, but which
cannot be created through an act of will. The most important application of the
rule of law is the principle that governmental authority is legitimately
exercised only in accordance with written, publicly disclosed laws adopted and
enforced in accordance with established procedural steps. The principle is
intended to be a safeguard against arbitrary governance, whether by a
totalitarian leader or by mob rule. Thus, the rule of law is hostile both to
dictatorship and to anarchy.3



†
   Brunilda Bara is Head of the Judicial and Documentation Department at the
Constitutional Court of Albania, Jonad Bara works as a judicial police officer for the
Foreign Jurisdictional Affairs Department at The General Prosecution’s Office.
1
   See Aba Division for Public Education, What is the Rule of Law, Americanbar.Org,
http://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.auth
checkdam.pdf.
2
   Ibid.
3
   See Christian Fleck, The Rule of Law, LexisNexis.Co.Uk, http://www.lexisnexis.co.uk/en-
uk/lexisnexis-for-barristers/rule-of-law.page (last visited Jun. 17, 2016).




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The concept of the rule of law means that legal documents, such as
constitutions, national legislation, and international agreements, govern a
state’s actions towards its citizens. It involves a democratic means of
establishing ruling factors such as popular sovereignty, majority rule and
minority rights, limited government, check and balance of powers, due process
of law, protection of individual’s fundamental rights and freedoms, etc. The
central notion of a rule of law is that society is governed according to widely
known and accepted rules followed not only by the governed but also by those
in authority.

        The various formal requirements of an essentially procedural version of
the rule of law derive their point and fundamental value from the broader ideal
of constitutionalism to which, ideally, they belong. Lon Fuller's “inner
morality” of law - the model of law as a body of general, clear, stable, and
prospective rules, capable of obedience, and faithfully applied by judges and
other public officials - formed the core of a more elaborate conception of law
as a bulwark or barrier against the exercise of arbitrary state power. Fuller’s
initial attempt to establish a necessary connection between law and justice, on
the ground that the precepts of formal legality were necessary conditions for
the existence of law, met fierce objection. 4 As H. L. A. Hart observed, the
general purpose of “subjecting human conduct to the governance of rules” -
the purpose Fuller ascribed to law - would allow us to treat the principles of
effective law-making as a moral obligation, whatever the content of the laws,
only if that general purpose were itself an ultimate human value. 5

        Fuller’s insistence on the moral value of procedural legality makes
perfect sense, however, when his discussion is interpreted as an exposition of
the liberal or constitutional ideal of the rule of law.6 Governmental adherence
to the precepts of formal legality is a necessary feature of a constitutional
regime, in which the values of personal liberty and autonomy are recognized
and protected. The value of legal certainty, that procedural regularity and
formal equality chiefly serve, as chiefly served by procedural regularity and

4
  T.R.S. Allan, Constitutional Justice: A Liberal Theory Of The Rule Of Law (Oxford Scholarship
Online, 2010), at 61
5
  Herbert Lionel Adolphus Hart, Essays in Jurisprudence and Philosophy 349-351 (Clarendon
Press, 1983).
6
  Lon L. Fuller, The Morality Of Law (Yale University Press, 1969), at 62.




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formal equality is one of great importance to human dignity. When a legal
system satisfies the various principles that Fuller identified as far as is
reasonably practicable, people will not be punished for non-compliance with
requirements whose existence was not generally known or which were
otherwise impossible to obey. Even when the rules enforced fail to secure many
of the various rights and freedoms characteristic of a modern liberal
democracy, their consistent and accurate application will generally have great
moral value: they will at least give fair warning of the exercise of state power.
The principle that laws will be faithfully applied, according to the tenor in
which they would reasonably be understood by those affected, is the most basic
tenet of the rule of law: it constitutes that minimal sense of “reciprocity”
between citizen and state that inheres in any form of decent government,
where law is a genuine barrier to arbitrary power.7

         If men were angels, no government would be necessary. In framing a
government which is to be administered by men over men, the great difficulty
lies in this: one must first enable the government to control the governed; ,
and in the next place oblige it to control itself.8 If considered not solely an
instrument of the government but as a rule to which the entire society,
including the government, is bound, the rule of law is fundamental in
advancing democracy. Strengthening the rule of law has to be approached not
only by focusing on the application of norms and procedures. One must also
emphasize       its   fundamental        role    in   protecting      rights        and        advancing
inclusiveness, and in this way, framing the protection of rights within the
broader discourse on human development.9

         The rule of law also has extremely important procedural dimensions, in
addition to the foregoing substantive dimensions. It requires a set of rules that
are known in advance, rules that are actually and fairly enforced, mechanisms
to ensure proper application of the rules (but permit controlled departure from
the rules where necessary), an independent judicial system to make binding




7
  Allan, supra note 4.
8
  The Federalist No. 51 (James Madison).
9
  Massimo Tommasoli, Rule of law and democracy: addressing the gap between policies and practices, UN
Chron., Dec. 2012, at 29.




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decisions when conflicts in the application of the rules arise, and procedures
for amending and revising the rules.10

        Rule of law cannot exist without a transparent legal system, the main
components of which are a clear set of laws that are freely and easily accessible
to all, strong enforcement structures, and an independent judiciary to protect
citizens against the arbitrary use of power by the state, individuals or any other
organization. There can be no free society without an independent judiciary
administering the law. If one man can be allowed to determine for himself
what is law, every man can. That means chaos first, and tyranny next.11




        2. JUDICIAL INDEPENDENCE AND THE RULE OF LAW

There is increasing acknowledgement that an independent judiciary is the key
to upholding the rule of law in a free society. An essential feature of modern
courts is their independent function, which is based on the separation of
powers doctrine. Separation of powers refers to a model of governance whereby
the three branches of government (executive, legislative, and judiciary)
function separately and equally, while acting as checks on each other. Under
the rule of law, judicial independence is generally defined as “freedom from
direction, control, or interference in the operation or exercise of judicial
powers by either the legislative or executive arms of government.” 12 The first
one to introduce the idea of the separation of powers was Montesquieu in 1748,
in his famous work “The spirit of the laws”.

        In the framework of the separation of powers doctrine, independent
judiciaries play a very important role. The judiciary’s check upon the executive
and legislative is essential in upholding the rule of law, and plays a crucial role
on the transparency and accountability of the government for any illegal
political acts committed by political leaders or members.



10
   Samuel L. Bufford, Defining the Rule of Law, Judges' J., Fall 2007, at 16, 19.
11
    United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Frankfurter, J., concurring).
12
    See American Bar Association, Judicial Independence Selected Definitions and Writings,
http://www.abanet.org/judind/downloads/jidef4-9-02.pdf.




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Independent courts exercise their authority by interpreting matters before
them in deference to the values in a nation’s constitution. In this sense, the
courts are seen to be the guardians of the constitution, and thereby serve to
protect civil liberties of citizens. From a political perspective, an independent
judiciary could give a voice to citizens who are traditionally ignored or left out
of the political process. For minority groups, this is particularly relevant when
the ruling government representing the majority ignores their rights or fails to
apply constitutional protections for them.

           Judicial independence means that judges are independent from political
pressures and influences when they make their decisions. They should not be
pressured by a political party, a private interest, or popular opinion when they
are called upon to determine what the law requires. Keeping the judiciary
independent of these influences ensures that everyone has a fair chance to
make their case in court and that judges will be impartial in making their
decisions.

           Independent judiciaries are characterized by the following: (1) judges
are free to make impartial decisions without outside political interference; (2) a
judiciary acts as a check upon the executive and the legislature and, (3) judges
are not arbitrarily removed or threatened. 13 The integrity of a court therefore
depends upon the degree of insulation from external political actors, and their
decisions would be honored even if they involve the executive or legislative
bodies. Judicial independence allows judges to make decisions that may be
contrary to the interests of other branches of government. Presidents,
ministers, and legislators, at times, rush to find convenient solutions to the
exigencies of the day. An independent judiciary is uniquely positioned to reflect
on the impact of those solutions on rights and liberty, and must act to ensure
that those values are not subverted.14

           Another fundamental feature of the independent judiciary is judicial
review. In the context of separation of powers, judicial review allows a court to
closely review acts of the executive and legislative branches (such as legislation
or regulations) without being subjected to unnecessary threats or interference.


13
     Id.
14
     Jeffrey Toobin, The nine: Inside the secret world of the Supreme Court 291 (2008).




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Without judicial review, a court cannot adjudicate matters in an objective
manner, and carefully tailor their judgments in line with constitutional
principles. Indeed, judicial review is essential feature in a democratic nation’s
constitution, and, as some commentators have noted, it represents the
ultimate expression of an independent judiciary. 15

         The Basic Principles on the Independence of the Judiciary, adopted by
the United Nations in 1985, outlined the importance to: (1) establish a separate
and impartial judiciary that could decide matters without political interference;
(2) have a nation provide adequate resources to allow the judiciary to perform
its vital functions; and (3) have such power to be enshrined in a nation’s
constitution.16 The role played by judges in upholding democracy and the rule
of law is also recognized by the Recommendation of the Committee of
Ministers n. 12 of 1994, the European Charter on the Statute for Judges, a
report of the Venice Commission on the independence of the judicial system
adopted by the Venice Commission, 17 and the 2010 “Recommendation to
Member States on the subject of judges; their independence, efficiency and
responsibilities” of the Committee of Ministers of Council of Europe. 18

         Judicial independence is an essential cornerstone of the rule of law and
for the proper functioning of a democratic society. A judicial system must
promptly resolve disputes on their merits by an impartial judiciary, as
unreasonable delays of the work of the judiciary seriously undermine the rule
of law. The rule of law also requires at least some level of appellate review of
judicial decisions to ensure proper interpretation and application of the laws. 19
Judicial independence requires that judicial participation in politics be
substantially circumscribed. While the law may permit a judge to be a member


15
   Scott D. Gerber, The Political Theory of an Independent Judiciary, 116 Yale L.J. Pocket Part 223, 225
(2007).
16
   Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Basic Principles on the Independence of the Judiciary, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985)
http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx, (last visited
Nov. 15, 2016).
17
   See http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)004-e ,
(last visited Nov. 15, 2016).
18
   Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States on Judges;
Independence, Efficiency and Responsibilities, adopted by the Committee of Ministers on 17
November 2010, at the 1098th meeting of the Ministers’ Deputies.
19
   Convention for the Protection of Human Rights and Fundamental Freedoms, Preamble, Nov. 4,
1950, E.T.S. 005, 213.




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of a political party, the law should prohibit a judge from running for political
office. Similarly, judges should not engage in political fundraising or other
clearly partisan activities.

        Further, judicial independence requires that both an individual judge
and the system of justice be shielded from legislative reprisal for a judicial
decision. In addition, legislatures must be prohibited from reducing a judge’s
salary or benefits, or even reducing the funding of the judiciary generally,
because of displeasure with particular judicial decisions. Reasonable access to
courts requires that judicial business be conducted in public. This requirement
has two dimensions. First, both written judicial decisions and papers filed with
courts must be available to the public when a reasonable request is made.20
Second, courts must be open to the public so that citizens can see justice in
action and be satisfied that court procedures are fair and equitable.

        The rule of law also requires that judges be competent. 21 This means
that judges must meet minimum requirements in education, experience, moral
standards, and judicial temperament. It also requires judges to continually
keep abreast of new developments in the law, legal systems, and judicial
procedures. Because laws and legal procedures change frequently, ongoing
judicial education is therefore critical to ensuring that judges will be able to
perform their judicial duties effectively.

        Although public officials enjoy a measure of immunity while working in
their official capacities, the rule of law requires that they nonetheless be
subject to the same laws as every other individual outside the sphere of their
official duties.




        3. JUDICIAL INDEPENDENCE IN ALBANIA

Today Albania is a parliamentary republic. This regime followed the collapse of
the communist dictatorship in 1991. During more than four decades of

20
  Bufford, supra note 10.
21
  Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 18, art.
21 (1); Rome Statute of the International Criminal Court, art. 36 (3) (a), July 17, 1998, U.N. Doc.
A/CONF.183/9; Statute of the International Court of Justice, art. 2, Oct. 24, 1946.




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communism Albania was ruled by an extreme authoritarian and dictatorial
regime. Its judiciary was subject to the will of the Communist Party’s
Chairman and the Central Committee, as well as other executive authorities.

         The beginning of the nineties marked historical and democratic changes
for Albania, marking a turning point in the history of the State and its
institutions. In 1998, following a popular referendum, Albania approved its
new, democratic Constitution22 which was followed by a series of important
laws on the judiciary. Some of these laws replaced existing laws, while others
were totally new for Albania.23

         At the moment Albania, is going through a very important justice
reform, which has included major reforms on the organization and functioning
of the judiciary, the prosecution, the Constitutional Court, etc. Today’s
Constitution of Albania,24 with its annexes, provides for new institutions such
as the High Judicial Council, The High Prosecutorial Council, Commission and
College of Appeal, International Monitoring Operation, etc. which aim at
bringing the organization and functioning of state institutions closer to the
organization and functioning of their counterparts, aiming to give an end at
corruption and disorder in Albania and the strengthening of the rule of law.


22
   Kushtetuta e Shqipërisë [KS] [Constitution of Albania], approved by the referendum of
22.11.1998, adjudicated by the decree of the President Rexhep Meidani no. 2260, dated 28.11.1998.
Law no. 8417, dated 21.10.1998 “The Constitution of the Republic of Albania” was amended by
laws no. 9675, dated 13.01.2007 “On several changes on law no. 8417, dated 21.10.1998 “The
Constitution of the Republic of Albania””; law no. 9904, dated 21.04.2008 “On several changes on
law no. 8417, dated 21.10.1998 “The Constitution of the Republic of Albania””; law 137/2015 and
law 76/2016 “On several changes to law no. 8417, dated 21.10.1998 “The Constitution of the
Republic of Albania.
23
   Ligj për Organizimin e Pushtetit Gjyqësor në Republikën e Shqipërisë, [Law on the Organization
and Functioning of the Judicial Power in the Republic of Albania], Fletorja zyrtare Republikës të
Shqipërisë, Law No. 8436, Dec. 28, 1998 (repealed 2008). See also Ligj për Organizimin dhe
Funksionimin e Gjykatës Kushtetuese të Republikës së Shqipërisë [Law on the Organization and
Functioning of the Constitutional Court of the Republic of Albania], Fletorja zyrtare Republikës të
Shqipërisë, Law No. 8577, Feb. 10, 2000; Ligj për Organizimin dhe Funksionimin e Gjykatës së Lartë
të Republikës së Shqipërisë [Law on the Organization and Functioning of the High Court of the
Republic of Albania], Fletorja zyrtare Republikës të Shqipërisë, Law No. 8588, Mar. 15, 2000; Ligj për
Organizimin dhe Funksionimin e Këshillit të Lartë të Drejtësisë Shqipërisë [Law on the
Organization and Functioning of the High Council of Justice of the Republic of Albania], Fletorja
zyrtare Republikës të Shqipërisë, Law No. 8811, May 17, 2001; Ligj për Organizimin dhe Funksionimin
e Konferencës Gjyqësore Kombëtare [Law on the Organization and Functioning of the National
Judicial Conference], Fletorja zyrtare Republikës të Shqipërisë, Law No. 9399, May 12, 2005; Ligj për
Organizimin dhe Funksionimin e Gjykatave për Krime të Rënda [Law on the Organization and
Functioning of the Serious Crimes Courts of the Republic of Albania], Fletorja zyrtare Republikës të
Shqipërisë, Law No. 9110, Jun. 24, 2003.
24
   Ligj për Disa Shtesa dhe Ndryshime në Ligjin nr. 8417, datë 21.10.1998, “Kushtetuta e Republikës
së Shqipërisë” [Law on several changes to Law No. 8417, dated Oct. 21, 1998 “The Constitution of
Albania”], Fletorja zyrtare Republikёs tё Shqipёrisё, Law No. 76, Jul. 22, 2016.




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Nevertheless, the new Constitution, just as the old one, provides that the law
constitutes the basis and the boundaries of the activity of the state, 25 that the
Constitution is the highest law in the Republic of Albania,26 and that the
governmental system is based on the separation and balancing of legislative,
executive and judicial powers.27 It also provides a set of fundamental rights and
freedoms for the Albanian citizens, the main rules for the organization and
functioning of different state powers and main Albanian institutions.

        Part IX of the new Constitution provides the main dispositions for the
judiciary. Judicial power in Albania is exercised by the High Court, courts of
appeal and courts of first instances.28 The major Albanian judicial reform,
which     started    last   year,    engaged      national     and    international             experts,
governmental and non governmental institutions and the Albanian society as a
whole. Drafting of the judicial reform’s laws was done by the Special
Parliamentary Commission for the Judicial Reform with the help of the
Permanent Parliamentary Commission on Legal Matters, Public Administration
and Human Rights. Laws no. 98/2016, dated 06.10.2016 “On the organization
of the judicial power in the Republic of Albania” and no. 96/2016, dated
06.10.2016 “On the status of judges and prosecutors of the Republic of
Albania”29 which form part of the judicial reform, have already set important
criterias on the independence of the judiciary in Albania. The following laws
that will be enacted, such as those providing changes to laws no. 8588, dated
15.03.2000 “On the organization and functioning of the High Court”; no.9399,
dated 12.05.2005 “On the organization and functioning of the National Judicial
Conference”, law nr.49/2012, dated 03.05.2012 “On the organization and
functioning of administrative courts and judicial review of administrative
conflicts”,30 will also constitute important instruments for the protection of
such independence.

        According to the new Constitution, High Court judges are appointed by
the President of the Republic upon proposal of the High Judicial Council for a


25
   KS, supra note 22, art. 4/1.
26
   KS, supra note 22, art. 4/2.
27
   KS, supra note 22, art. 7.
28
   KS, supra note 22, art. 135.
29
   All new laws enacted recently within the framework of the justice reform.
30
   In force at the moment.




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term of nine years, without the right to re-appointment. The President of the
Republic within ten days following the decision of the High Judicial Council
appoints the High Court judge, with the exception when there are grounds of
his or her insufficient qualifications or ineligibility in accordance with the
law.31 The decree of the President of the Republic to reject the candidate has no
effect if the majority of the members of High Judicial Council vote against the
decree. In such case, as well as if there is no pronunciation of the President of
the Republic on the matter the candidate is considered appointed and starts the
office term within fifteen days following the date of the High Judicial Council’s
decision.32

         High Court judges are selected from the ranks of judges with at least
thirteen years of experience. One-fifth of the judges are selected among
recognized lawyers with not less than fifteen years of experience having
worked as lawyers, law professors or lecturers, senior employees in the public
administration or other practices of law. Candidates who are not judges must
have an academic degree in law and should not have held a political position in
the public administration or a leadership position in a political party in the
past ten years before becoming candidate. Further criteria and the procedure
for the appointment and election of judges are provided by law. A High Court
judge continues to stay in office until the appointment of the successor, except
in cases under Article 139, paragraph 1, subparagraph c), ç), d) and dh), which
provide the end of term of the High Court’s judge.33

         Part VIII of the new Constitution provides the main dispositions for the
Constitutional Court of Albania (hereinafter C.C.A.). Until 28th of November
2016 C.C.A.’s activity was regulated by its organic law no. 8577, dated
10.02.2000 which provided the rules for its organization and functioning. Law
no. 99, dated 06.10.201634. which entered in force on 28.11.2016, provides new


31
   Law no.84/2016 “On the transitional re-evaluationof judges and prosecutors”
32
   KS, supra note 22, art. 136.
33
   KS, supra note 22, art. 136. Article 139 of KS “The mandate of a High Court judge shall end, upon:
a) reaching the retirement age; b) the expiry of the nine year term mandate; c) his or her
resignation; ç) dismissed as provided in article 140 of KS (commits serious professional or ethical
misconduct or is convicted with a final court decision for commission of a crime); d) establishing
the conditions of inelectibility and incompability; dh) establishing incapacity to exercise the
duties.
34
   “On several additions and changes to organic law no. 8577, dated 10.02.2000 “On the
organization and functioning of the Constitutional court of Albania”




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criteria on the election of the judges of C.C.A, on the selection of the President
of the Court, the parties that can present a constitutional claim and what cases
C.C.A. can decide upon, on the disciplinary measures against constitutional
judges, etc.

        C.C.A. is different and separate from the ordinary court system and is
the authority that guarantees the respect for the Constitution and makes the
final interpretation of it.35 It has the power to examine the constitutionality of
norms passed by the Parliament and other normative acts. The Constitution
itself does not place this court in the section dedicated to the judiciary, 36 but
dedicates to it a special Part,37 emphasizing the importance of this court.
According to the new Constitution, the Constitutional Court consists of nine
judges. Three judges are appointed by the President of the Republic, three by
the Parliament and three by the High Court. The members will be selected
among the three first ranked candidates by the Justice Appointments’
Council,38     in   accordance     with     the   law.   The   Parliament           appoints           the
Constitutional Court judges by three-fifth majority of its members. If the
Parliament fails to appoint the judges within thirty days of the submission of
the list of candidates by the Justice Appointments’ Council, the first ranked
candidate will be deemed appointed. The judges of the Constitutional Court are
appointed for a nine-year mandate without the right to re-appointment. As to
the requirements to be selected as a constitutional judge, the Constitution
provides that a constitutional judge must have a law degree, a minimum of
fifteen years of experience as judge, prosecutor, lawyer, law professor or lector,
senior employee in of public administration with distinguished merits in
constitutional, human rights or other areas of law. The judge should not have
held a political post in the public administration or a leadership position in a
political party in the last past ten years before his/her candidature. One-third
of the composition of the Constitutional Court is renewed every three years.

        The Constitutional Court judge continues his office term until the
appointment of the successor, except in cases provided by Article 127,


35
   KS, supra note 22, art. 124/1.
36
   KS, supra note 22, pt. IX.
37
   KS, supra note 22, pt. VIII.
38
   New institution provided in the new Constitution.




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paragraph 1, subparagraph c, ç), d), and dh) of the Constitution, related to the
end of constitutional judge’s term.39

         The constitutional judge enjoys immunity regarding the opinions
expressed and the decisions made in the exercise of their functions and duties
as such, except if the judge acts based upon personal interests or malice. 40
When there is sufficient ground to believe that a constitutional judge has
committed one of the criminal offences provided by Article 128 of the
Constitution,41 by request of the President or any member judge of the Court,
the President, or the oldest judge in office term, when subject of the
disciplinary measure is the President, can request initiation of disciplinary
measures.42 A Judge’s term is suspended when such proceedings start, but also
if he is charged with a criminal offence, or a security measure such as
“imprisonment” or “house detention” has been taken upon the judge. 43

         The compatibility of a law or other normative acts with the Constitution
or international agreements is examined by the Constitutional Court. In such
cases C.C.A. can be set in motion by request of the President, the Prime
Minister,44 not less than one fifth of the members of the Parliament, 45 and the
Ombudsman.46 C.C.A. can also be set in motion for the verification of the
compatibility of international agreements with the Constitution, prior to their
ratification, or for revision of the Constitution. Recourse to the Constitutional
Court in such cases can only be upon request of the President or not less than



39
   KS, supra note 22, art. 125.
40
   KS, supra note 22, art. 126.
41
   The Constitutional Court can decide on the dismissal of the constitutional judge if: a) it finds
that the constitutional judge has acted in serious professional or ethical misconduct; b) has been
declared guilty by final decision of a court.
42
    Ligj për Organizimin dhe Funksionimin e Gjykatës Kushtetuese të Republikës së Shqipërisë
[Law on the Organization and Functioning of the Constitutional Court of the Republic of Albania],
Fletorja zyrtare Republikës të Shqipërisë, Law No. 8577, Feb. 10, 2000 (as amended by Law No. 99 of
2016).
43
   Id. art. 10/ç.
44
   The Prime Minister of the Republic of Albania v The President of the Republic of Albania [2002] CCA 186,
[2002] 192.
45
   A Group of Members of Parliament v The Parliament of the Republic of Albania [2007] CCA 36, [2007]
312; One Fifth of the Members of the Parliament v The Parliament of the Republic of Albania [2008] CCA
18, [2008] 226; A Group of 31 Members of Parliament v The Parliament of the Republic of Albania [2009]
CCA 3, [2009] 24; A Group of Members of Parliament v The Parliament of the Republic of Albania [2010]
CCA 9, [2010] 138; One Fifth of the Members of the Parliament v The Parliament of the Republic of Albania
[2011] CCA 24, [2011] 380.
46
   KS, supra note 22, art. 134/1; Organic law, art. 49/1.




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one fifth of members of Parliament. 47 The Head of High State Audit,48 any
court, as provided by article 145/2 of the Constitution, any commissioner
established by law for the protection of the fundamental rights and freedoms
guaranteed by the Constitution, High Judicial Council and High Prosecutorial
Council, organs of local government, organs of religious communities, political
parties and other organizations, as well as individuals can present a request to
C.C.A. only if they argue that there is a direct connection between the
application of the norm and their interests.49

        Article 145/2 of the Constitution provides that judges, in the exercise of
their powers while deciding a case, may choose not to apply a law, application
of which is necessary for the solution of the case, if they consider it to be
unconstitutional. They suspend the proceedings and send the question to the
Constitutional Court.50 This recognizes the right of judges, at any stage of the
trial, not to implement the law applicable to the case, when they believe it
conflicts with the Constitution. Such constitutional control of laws is initiated
by courts of the ordinary judicial system.

        The acts issued by the Parliament are in this way controlled by the
judiciary which serves to balance the legislative branch. This said, judicial
independence in Albania has always been a strong argument in and out of the
country.51 The legislative measures of 2008 regarding the election of district
courts’ judges by the School of Magistrates were seen as positive. The
establishment of clear judicial advancement criteria was seen as an objective
framework for judicial promotion and hiring. Continuing of legal education,
offered by the School of Magistrates, is considered as a positive step and has
been mandatory since 2005.52 Nevertheless, the overlapping competences of
inspectorates of the Ministry of Justice and High Council of Justice regarding
disciplinary measures against the judges, the election of court chancellors and
other judicial staff by the Minister of Justice, and the low salaries of the judges
and court personnel have been among the major concerns regarding the

47
   Organic law, art. 49/2.
48
    The Chairman of the High State Audit v The Parliament of the Republic of Albania [2007] CCA 19,
[2007] 141.
49
   KS, supra note 22, art. 134/2; Organic law, art. 49/3.
50
   KS, supra note 22, art 145/2; Organic Law, art. 68.
51
   See the Progress Reports of the Venice Commission for Albania during years.
52
   ABA Rule of Law Initiative, Judicial Reform Index for Albania, vol. IV, 2008, 9.




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independence of the judiciary in Albania, 53 which led to the new changes on the
Constitution of Albania. The new laws, such as The Vetting Law, 54 provide new
criteria on the evaluation of judges and law clerks, such as their knowledge,
their assets, and their image.55

         The case law of C.C.A., in recent years, shows that judicial independence
has been brought to its (C.C.A.’s) attention many times, the most important
cases being the ones of 2011-2012 regarding the election of new constitutional
judges. According to Article 9/2 of C.C.A.’s organic law, the termination of the
constitutional judge’s term is declared by a decision of the C.C.A. In 2010,
C.C.A. declared the end of term for three constitutional judges. At the time
when C.C.A. was supposed to be renewed by one-third, the President of the
Republic, on the 6th of September 2010 sent to the Parliament four decrees for
the nomination of the new members of the Constitutional Court. While
examining the applications and the career of the individuals presented by the
President to be future constitutional judges, a number of members of
Parliament, as provided by article 134/c of the Constitution, filed a case with
the C.C.A. regarding the interpretation of the articles of the Constitution that
provide the renewal of C.C.A. In its decision, dated 09.06.2011 regarding this
case,56 C.C.A. held that:

          The President and The Parliament, in the exercise of their
          constitutional        powers,     are    the      first   to      interpret          the
          constitutional norms. If C.C.A. would have to decide on the
          criteria to be met by a candidate, this would lead this Court to
          take on constitutional competences of each of these bodies. In
          this regard, the President and the Parliament, based on the
          principle of constitutional loyalty, must work together to
          determine       the    legal    criteria,    in     accordance            with       the
          constitutional requirement for high qualification of the

53
   Id.
54
   Ligj për Rivlerësimin Kalimtar të Gjyqtarëve dhe Prokurorëve në Republikën e Shqipërisë [Law
on the Transitory Reevaluation of Judges and Prosecutors in the Republic of Albania], Fletorja
zyrtare Republikës të Shqipërisë, Law No. 84, Aug. 30, 2016. The constitutionality of the Vetting Law
is currently being revised by the Constitutional Court of Albania. C.C.A. asked the Venice
Commission an amicus curiae on the law.
55
    Whether or not, in any way, they have connections with criminal organizations, or groups, etc.
56
   A group of Members of the Parliament v The President of the Republic, The Parliament [2011] CCA 24,
[2011] 380.




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             candidates. This is            necessary       to    provide a         qualitative
             composition of the Constitutional Court”. After such decision
             of C.C.A., the Parliament decided not to further review the
             decrees of the President of the Republic for the appointment
             of the members of C.C.A. until April 2013 as, according to the
             Parliament’s          Commission          on        Legal     Affairs,         Public
             Administration and Human Rights, this Court had no
             vacancies to be filled.

Even though the President required the Parliament to carry on with the
election of the constitutional judges, the Parliament still did not act. According
to a letter of August 2011 from the Parliament of the Republic of Albania to the
President of the Republic, the reelection of the new constitutional judges was a
closed matter until April 2013, time at which the vacancies on the
Constitutional Court for the election of three judges would reopen. In October
2011 the President filed an application to the C.C.A. for abrogation of such
decision of the Parliament. On 21 April 2012, one of the constitutional judges,
whose term was declared terminated by decision of the C.C.A., resigned.
C.C.A.’s composition was left with eight judges instead of nine.

            In its decision, dated 19.07.2012 regarding the second case, 57 C.C.A. held
that:

             The solution on the situation between the President and the
             Parliament, namely the resolution of disputes of competences
             between the two bodies, cannot be found by means of
             constitutional control . . . . C.C.A. cannot suggest or refuse the
             way or the means used by the legislator to fix the issue . . . .
             This is out of the role of constitutional control and as such
             cannot be included in the scope of its discretion. The Court
             has already emphasized the role and responsibility of the two
             constitutional bodies, the President and Parliament, in view
             of    the     constitutional        loyalty     during       the     process          of
             appointment of new members.



57
     The President of the Republic v The Parliament, [2012] CCA 41, [2012] 571.




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Three constitutional judges presented their views on the case on their
dissenting opinions. The constitutional judge, who later resigned from office,
in his dissenting opinion on the case held:

          Under Article 12/5 of the Constitution the constitutional judge
          whose term has ended remains in office until the arrival of
          his successor, but this can only last for a reasonable period of
          time, needed for the appointment procedures of the new
          judge. The extension of term of the constitutional judge, after
          the end of his mandate, cannot be as long as to constitute
          consumption of a substantial part of a second 9-year term.58
          In accordance with the spirit of the Constitution, the
          continuation of the office term of the constitutional judge,
          until the appointment of his successor, means respecting
          three preconditions: 1. the President and the Parliament must
          exercise their will through respective acts, within the powers
          given by the Constitution; 2. these bodies must act within a
          reasonable time and under transparent procedures which
          clearly define the timeframes necessary for the normal
          closing of the appointment procedures for the new judge;
          and,    3.   the    continuation       of   the    office      term        of     the
          constitutional judge is to be understood and implemented as
          a continuation within a reasonable time. A long extension of
          the office term, after the end of the mandate . . . . although it
          is not functionally equivalent to a reappointment, legally
          threatens to resemble a reappointment, in violation of Article
          125/2 of the Constitution.59

Another much discussed issue on the independence of judges was the one
regarding the law on judicial administration.60 According to such law, the
Minister of Justice was in charge of drafting the organic structure of the



58
    See Brunilda Bara & Jonad Bara, Constitutional Court and Constitutional Review in Albania, 7 ICL
Journal, no. 2, 2013, at 216, 217.
59
   Id., (Justice Berberi dissenting).
60
   Ligj për Administratën Gjyqësore në Republikën e Shqipërisë [Law on Judicial Administration on
the Republic of Albania], Fletorja zyrtare Republikës të Shqipërisë, Law No. 109, Apr. 1, 2013.




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administration of the courts.61 He was entitled to draft and supervise the
politics on the organization and functioning of the judicial administration, the
general criteria for their performance and work methodology, the internal
rules on the functioning of the administration, and the disciplinary measures,
judicial databases, etc.

         The case of the constitutionality of such law was presented to C.C.A. by
the Union of Judges of Albania (hereinafter U.J.A.). According to U.J.A.’s
arguments, the independence of the judiciary must be understood as a
substantive,       organizational,        functional       and     financial         independence. 62
Substantive independence refers to the independence of the judges to to arrive
at their decisions without submitting to any inside or outside pressure.
Organizational independence consists on the right to draft and select, in
accordance with established criteria, the internal administrative structure of
the courts, such as recruitment of personnel at various levels, appointment of
law clerks, etc.63 Functional independence is strictly connected to the activity of
the institution, activity which is self regulated by these organs and based on
constitutional provisions. Each organ has the right to decide freely and
independently. No organ can intervene on matters that, according to the case,
constitute part of the activity of other constitutional organs or institutions.
Financial independence implies the right to propose to the Parliament the
annual budget, and, more specifically, the right to independently manage such
budget, in accordance with the law. As the activity of the administration of the
judiciary is strictly related to the everyday work of the judges, the right of the
Minister of Justice to decide on all the above mentioned issues was considered
by U.J.A. as an intervention on the function of the judiciary. Nevertheless, this
law was abrogated by C.C.A.64

         Another similar case was the one presented to C.C.A. in 2009 by the
National Association of Judges (hereinafter N.A.J.). Law no. 9877, dated
18.02.2008 approved by the Parliament, provided for, among other things, the
appointment of the chancellor of the court by the Minister of Justice and his

61
   Id. artt. 7, 13.
62
   Chairman of the High State Audit, The Ombudsman v. The Parliament, etc. [2007] CCA 19, [2007] 141;,
The Union of Judges of Albania v. The Parliament, etc. [2012] CCA 5, [2012] 51.
63
   Id.
64
    The Union of Judges of Albania v. The Parliament, etc. [2014], CCA 10, [2014], 160.




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right (of the chancellor) to appoint or discharge the judicial secretarial
personnel and administrative and technical services of the court. N.A.J. argued
that the prerogative of the judiciary is to administer justice and the
competences given to the chancellor constitute an interference of the executive
on the judiciary. According to N.A.J., one of the most important tools for the
protection of the independence of judicial institutions or organs is the proper
designation of mechanisms or procedures regarding the election, appointment
and discharge not only of judges, but also of other administrative staff such as
the chancellor or administrative and technical personnel. This is important to
guarantee the three components of judicial independence: organizational,
functional and financial. The fulfillment of the legal and constitutional
functions of such institutions can only be achieved by respecting each
component of the independence.65

            In its decision,66 C.C.A. held that during the exercise of their activity
judges are subject only to the Constitution and the laws. They must ensure the
fulfillment of the rules provided in the Constitution, laws and other legal acts
and guarantee the rule of law and the protection of individuals’ rights and
freedoms. Independence means autonomy. The autonomy of the judiciary
includes the way the courts arrange their work and activities and even a special
budget, which is self administered. The Constitution prohibits any kind of
interference on the activity of the court or judges. 67 The term “activity” is
strictly related to the function of the courts, which is that of bringing about
justice. The independence of the judiciary is also provided for in a large
number of international documents, such as: the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights, the
European Convention on Human Rights (E.C.H.R.), Basic Principles on the
Independence of the Judiciary adopted by the U.N. Assembly, Recommendation
for the Independence, Efficiency and the Role of Judges adopted by the
Committee of Ministers of the Council of Europe, Universal Charter of the
Judge, etc.




65
     National Association of Judges v The Parliament, etc., [2009] CCA 20, [2009] 224.
66
     Id.
67
     KS, supra note 21, art. 145/3.




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At the end of the constitutional proceedings, C.C.A. abrogated the provision of
the law referring to the discharge, by the chancellor, of the judicial secretarial
personnel and administrative and technical services of the court.

        Another important case on the independence of the judiciary, filled with
the C.C.A. by U.J.A, concerned the transport service for public officials such as
judges of the Constitutional Court, judges of the Supreme Court, the Chairman
of the Court of First Instance and the Chairman of the Court of Appeal. In its
decision, C.C.A. held that the independence of the judiciary, as part of the rule
of law, includes a wide range of aspects, which, taken together, create the
necessary conditions for the fulfillment of the role and duties of courts,
especially regarding the protection of human rights. Some of these aspects are
financial, but C.C.A. considered that even other aspects, such as:

           Determining the number of vehicles and drivers, . . . .
          protocol status, diplomatic passports and other elements,
          . . . . constituted constitutional standards of institutional
          independence. Consequently, the interference of legislators
          and the executive . . . . was considered in violation of Article 7
          and 144 of the Constitution.68

In 2009, U.J.A. considered as interference on the judiciary and its rights the
provisions of law no. 9877, dated 18.02.2008 “On the organization and
functioning of the judicial power in the Republic of Albania” concerning
judges’ 30 calendar days of annual paid leave. According to U.J.A., the
Constitution provides that: “Judges’ term cannot be limited, their salary and
other benefits cannot be reduced”.69 The new law of 2008, which changed the
law of 1998, provided thirty calendar days of annual paid leave, which did
include Saturdays and Sundays. The words “30 calendar days”, which replaced
the words “30 days” of the previous law on the judiciary, had interfered with
the benefits that the judges received.70




68
   The Union of Judges of Albania v The Parliament, etc., [2010] CCA 11, [2010] 211.
69
   KS, supra note 21, art. 138.
70
   The term “30 days” was interpreted by the judges as it did not include Saturdays and Sundays.




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In its decision,71 C.C.A. concluded that the words “30 calendar days”, in their
literal meaning, and also in the meaning prescribed for such terms by the
Vocabulary of Today’s Albanian Language72 did not make any changes to the
days of holidays to which the judges were entitled to. The first law of 1998, as
well as the 2008 law on the judiciary, provided for thirty calendar days and
they did include Saturdays and Sundays.

         After the entry in force of the new Constitution of Albania and the
justice reform, the Parliament enacted law no. 84/2016 “On the transitional re-
evaluation of judges and prosecutors in the Republic of Albania”, also known
as The Vetting Law, which became one of the most discussed laws in Albania
following the justice reform. The case of the constitutionality of this law was
presented to C.C.A. by one-fifth of the members of the Parliament, who
considered the law to be in violation of constitutional principles such as the
check and balance, legal certainty, independence of the judiciary and the
prosecution, due process of law, individual’s right to an effective remedy, right
to a private life, etc. The members of the Parliament were joined, in their
request for the unconstitutionality of the Vetting Law by the Union of Judges of
Albania.73

         In October 2016 the Constitutional Court of Albania addressed the
Venice Commission with an amicus curia on the case, asking the Commission
whether the participation of the constitutional judges, also subject to the
Vetting Law, in the examination of the case would be considered as a conflict
of interest; whether the law respected the fundamental principles of the rule of
law and the separation and balancing of powers and whether the independence
of the judiciary was endangered by the involvement in the process of re-
evaluation of judges and prosecutors of the organs under the control of the
executive power; and whether denial of the right of judges and prosecutors




71
   The Union of Judges of Albania v The Parliament, etc., [2009] CCA 31, [2009] 390.
72
   Albanian Academy of Science, Language and Literature Institute, Fjalor i Gjuhës së Sotme Shqipe
(Vocabulary of Today’s Albanian Language), Toena Publishing (2002).
73
   On 26.05.2017 the Union of Judges of Albania and the National Association of Judges of Albania
filed a complaint with C.C.A. on the constitutionality of the Albanian Vetting Law and 2 other
important laws of the justice reform. C.C.A. decided to hold a hearing on the case but a date has
not been set yet. The parties were asked, until 22.06.2017, to file their written submissions on the
case.




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subject to the law on re-evaluation to be addressed to domestic courts was
contrary to Article 6 of the E.C.H.R.

        In its opinion no.868/2016 on the case the Venice Commission held that
the Constitutional Court had to choose between two alternatives. Either it had
to exclude the possibility of a judicial review of the vetting legislation, since a
regulation of the conflict of interest was missing in the Vetting Law, or it had
to recognize the basic importance of the guarantees ensured by a functioning
judicial review of legislation and deal consequently with the case submitted to
its judgment.74 Concerning the issue of conflict of interest and the possible
disqualification of constitutional judges, the Venice Commission underlined
that all the constitutional judges, according to the Constitution and the Vetting
Law, would be subject to the Vetting Law which provides for the re-evaluation
of every judge in Albania including the judges of the Constitutional Court.
Therefore, the possible conflict of interest could affect the position, not only of
one or some constitutional judges, but of all the constitutional judges sitting at
the    Constitutional      Court.     Consequently,       the     disqualification              of      the
constitutional judges because of the existence of a conflict of interest would
result in the total exclusion of the possibility of judicial review of the Vetting
Law in view of its conformity to the Constitution. This would undermine the
guarantees ensured by a functioning judicial review of legislation. This
situation could be considered by the Constitutional Court as an “extraordinary
circumstance”       which      may     require      departure    from        the      principle           of
disqualification in order to prevent denial of justice. 75

        On the question whether judicial independence was endangered by the
involvement, of the organs allegedly under the control of the executive power,
in the process of re-evaluation of judges and prosecutors, the Commission held
that, despite the involvement of executive bodies in the investigation process
and the initial research for evidence, the evaluation and assessment of any
information or evidence gathered by them rested with the newly created
constitutional bodies which possessed both the characteristics of judicial

74
   CDL-AD(2016)036, Amicus Curiae Brief for the Constitutional Court of Albania on the Law On The
Transitional Re-Evaluation Of Judges And Prosecutors (THE VETTING LAW), Adopted by the Venice
Commission      at  its   109th    Plenary   Session   (Venice,   Dec.    9-10,   2016),   p.  18
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)036-e .
75
   Id., at 61




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bodies and had the power to verify themselves the evidence gathered by the
executive organs. On this basis, it held that the Vetting Law did not seem to
amount to an interference with the judicial powers.

         According to the Commission, it is quite normal and in line with
European standards that the evidence presented to a court of law is initially
obtained by executive bodies such as the police or prosecutor. Provided its
evaluation, i.e. the assessment of its veracity and the weight to be attached to it
is a matter for judicial determination, this does not amount to an interference
with the judicial power.76 The bodies involved in the vetting process have
instrumental and subservient functions aimed at helping the new institutions
to carry out their difficult mandate. Decision-making power in all cases
appears to remain with the Independent Commission and Appeal Chamber,
established for this purpose in accordance with the provisions of the
Constitution as independent and impartial judicial bodies. 77

         As to the question of C.C.A. on the comformity of the law with Article 6
of the E.C.H.R. regarding the right to fair trial, 78 the Commission held that the
provisions of the new Constitution provided sufficient elements to conclude
that the newly created constitutional bodies presented judicial guarantees for
the judges and prosecutors undergoing the vetting process and the rights and
safeguards contained in the legislative and constitutional scheme seem
extensive. In its decision dated 18.01.2017 on the case, by a majority of votes,
C.C.A. held the Vetting Law was in accordance with the Constitution of
Albania.79

         In addition to the independence of the judiciary from the legislative and
the executive, other much discussed issues in Albania are the independence of
the judiciary from the parties to the case; additionally, when it comes to cases
regarding members of the Parliament or the government, many court decisions
are viewed as political.

         Because the perception of the corruption of the judiciary still remains
widespread not only by the public, but also by the media, and the cases of

76
   Id., at 36.
77
   Id., at 38.
78
   Question 3 of the Amicus Curiae
79
   Not less than 1/5 of Members of Parliament, Union of Judges of Albania v The Parliament, [2017] CCA 2.




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judges     prosecuted        for   corruption       being     rare,     as      many           Albanian
constitutionalists had previously suggested,80 our system needed radical
changes. The new Constitution and the new institutions provided therein
hopefully will strengthen the rule of law in Albania and public’s trust in the
Albanian judicial system. Nevertheless it is up to the courts and state
institutions to emphasize its importance and to obey the rule of law, while at
the same time guaranteeing the respect for an independent judiciary.




          4. CONCLUSIONS

The challenge for emerging democracies is to build public confidence in the
belief that a body politic is firmly founded upon the rule of law. Such
confidence is established where citizens know that they are protected against
state interference other than ‘in accordance with law’; that no one, regardless
of position, is above the law and that the law itself is transparent and fair.
Judges uphold the rule of law by acting as fair and impartial arbiters of
disputes and by conducting trials on legal grounds only and without any
improper influence. Judges can only fulfill this important public service if there
exists secure structures which protect their internal and external independence
thereby enabling them to decide “without fear or favor, affection or ill-will”.81

          An independent judiciary is, therefore, the key to upholding the rule of
law in a free and democratic society. No other organ of state carries out the
crucial    function     of   fairly   and    impartially     resolving        disputes          between
individuals and the State in accordance with law. The independent judge is
there not just to uphold the rights of the individual but “to strike a balance
between the rights and freedoms of the individual and the protection of the
rights and freedoms of the community”. Where that balance is not struck fairly




80
   Kristaq Traja, Speech at Sheraton Hotel Tirana on the Occasion of the 15th Anniversary of the
Constitution.
81
   Ann Power, Judge of the European Court of Human Rights, Int’l Bar Ass’n Conference, Judicial
Independence and the Democratic Process: Some Case Law of the European Court of Human Rights (Sep.,
2012), 2.




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and impartially, the seeds of resentment, bitterness and discord are cultivated
and peace, which can only be founded upon justice, is jeopardized. 82

        The principle of independence of judges was not invented for the
personal benefit of the judges themselves, but was created to protect human
beings against abuses of power. It follows that judges cannot act arbitrarily in
any way by deciding cases according to their own personal preferences, but
that their duty is and remains to apply the law. In the field of protecting the
individual, this also means that judges have a responsibility to apply, whenever
relevant, domestic and international human rights law.

        Only an independent Judiciary is able to render justice impartially on the
basis of law, thereby also protecting the human rights and fundamental
freedoms of the individual. For this essential task to be fulfilled efficiently, the
public must have full confidence in the ability of the Judiciary to carry out its
functions in this independent and impartial manner. Whenever this confidence
begins to be eroded, neither the Judiciary as an institution nor individual
judges will be able to fully perform this important task, or at least will not
easily be seen to do so.83

        Judicial independence and judicial supremacy work together in an
attempt to guarantee that the rule of law will not be eroded by the political
pressures in existence at any particular point in time. By removing the ultimate
interpretation of constitutional provisions from elected officials, the principle
of judicial supremacy reduces the likelihood that basic legal protections will
fall victim to the passions of the moment. Insulating judges from political
influence advances the same objective.84

        The justice reform going on in Albania aims for a total reformation of
the judicial system and the functioning of the courts in Albania, including the
Constitutional Court, placing important criteria on the selection not only of the
judges, but also of the law clerks, emphasizing the importance of the




82
   Id.
83
   See U.N. Office of the High Commissioner For Human Rights and International Bar Association,
Human Rights in the Administration Of Justice: A Manual on Human Rights for Judges, Prosecutors and
Lawyers, 115, Professional Training Series No. 9 (2003).
84
   See David Boies, Judicial Independence and the Rule of Law, 22 Wash. U.J.L.Pol'y 57, 58 (2006).




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independence of the judiciary, moving forward to Albania’s integration in the
European Union.




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