REPUBLIC OF ALBANIA
THE COMMITTEE OF NATIONWIDE RECONCILIATION
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Civil Society Forum on Justice Reform
Committee of Nationwide Reconciliation
Global Legal Centre for Justice and Transparency
SUBMISSIONS ON REFORMS IN THE JUSTICE SYSTEM.
March 7, 2016
Civil Society Forum on JusticeReform, was established on date January 27, 2016 by the most prominent representatives of political and social life of the country to support justice reform and its implementation.
The forum among pursuing the political debate was introduced and studied carefully the documents of the preparatory stage to the adoption of this reform by the Parliament, the decision to establish a special commission, No. 96, dated 27/11 2014, analytical draft and strategic draft of this reform prepared by 20 high-level experts and preliminary recommendations of the Venice commission.
The forum decided to make its submissions with regard to reform, hoping that will give a modest contribution in its support which is one of the most important reforms that the country undertakes to consolidate democracy, the rule of law and promotion of Albanian society toward integration into the European Union.
THE FORUM HOLDS THAT:
1- The maximal commitment of the Ministry of Justice and senior experts results in a thorough, deep and comprehensive analysis of the justicesystem situation and determination of needs and objectives through analytic and strategic draft that will serve as a guide not only for justice reform, but also to encourage the professional development of representatives of the judiciary, prosecutors, judges, students and judicial police employees, but not only.
2- The commitment in support of this reform of international partners like the European Union, the United States, the Council of Europe and OSCE, has enabled the promotion of all political and social factor for the realization of this deep and comprehensive reform in the interests of the Albanian people.
3- The recommendations of the Venice Commission for the implementation of this reform should be accepted and implemented by all parties in the parliamentary dialogue. It serves to protect the rights of the Albanian citizens, building an effective system of independent justice, serving the Albanian citizens, democracy and the rule of law.
Analytical draft and strategic draft compiled by 20 experts of high level and approved by the Venice Commission are a good guide for the implementation of reform without violating the independence of the judiciary and prosecution, but the implementation of the objectives which they set is not guaranteed without the commitment of all political actors.
The objectives set out in the draft strategy are clear, accessible but must be translated into access, ideas, programs and organization structure to be implemented in reality by means of reliable human resources. A very important role in translating the objectives plays the cooperation of the government, parliament and state institution with civil society factors.
Despite the grave situation of corruption and professional incompetence, individuals with high professional integrity of conscience are involved in the justice system, who have made justice and upheld the law. The analytic and strategic draft was written jointly by 20 high-level experts within and outside the sector. This has made it possible for drafts to reflect failures of reform possibilities, realities, uncertainties and challenges ahead, have sketched independence, hierarchies, ranks and responsibility of each to the progress of this system.
Reform in the justice system may not have results if it does not bring back the confidence of citizens toward the state, without being accompanied by reforms in other sectors. The government and parliament have achieved positive results with reforms in education, the state police and in some important sectors of the economy, but these results have no future without other state and legislative reforms in the political, social and economic life. Without these coordinated reforms the reform in justice is not guaranteed.
Besides discussions on reform in justice parliament has adopted a law on decriminalization of the parliament but without reforming the political parties, the parliament and the public administration. Without reforming the political parties, the parliament and public administration Albanian Government will continue to carry the same weaknesses and justice reform will not bring expectations.
Through this reform those hundreds of professional of jurisprudence and left out of the system and Magistrate excellence students should reach this sector in order to make possible the improvement of the justice system and making justice. They are left out of the system by representatives of political parties that have supplied not only the justice system but the entire public administration with militants by damaging the Albanian state society. The high level of preparation of drafts show that the country has experts who provide necessary changes and can lead the justice system to draw from the grave situation in which it is found, but they should be invited from the political as well as hundreds of experts sectors others left out of public administration and outside parliament that suffers from years of occupation by businessmen and ineligible individuals.
ON THE AMENDMENT OF STRUCTURES AND LAWS.
Forum finds it reasonable to express its view that in a small country such as Albania, the current structures of state and public administration are several times larger in tools and human resources that the state budget can cover except for the courts that have a greater overload.
Reduction of public administration in many unimportant sectors for the country enables the addition of necessary financial and human resources necessary for the courts. Surveys show that over 50% of the court decisions are taken based solely on the conclusions of the prosecution and the defence without reading the file because of the large number of issues a judge has to review. Decisions have deficiencies of evaluation and even prosecutors do not base on evidence. About 60% of lawyers do not have the necessary professional skills thus denying the basic principle that good justice comes from good advocacy. The number of issues given for review to a judge is three to four times larger than necessary. To eliminate this serious breakdown of the system the number of judges and legal assistants should be doubled at all levels.
In the analytical and strategic draft of the reform it stated that the poor quality of legislation passed during these 25 years is one of the factors that has led to a lack of efficiency of system sectors to give justice: .. The draft states that: "In many cases the process of drafting laws in Albania has been no more than the import of foreign laws without being subject to a process of adaptation in the light of real needs and opportunities of the country. As a result of impacts, often contradictory, of different legal systems, Albanian legal system continues to be in transition, misleading and inconsistent. Different branches of law originate in different legal models. Consequently, legislation is not harmonized. Concrete cases of lack of harmonization are conflicts between provisions that contradict each other, duplication, inconsistent treatment of the same institute in various laws, the use of vague terminology etc ..and… Constitution has failed in many ways, etc. "
For this reason experts think and have planned the amendment of many laws as well as a part of the Constitution.
Given the findings of the experts the forum deems it appropriate to submit its opinion that the amendment of 40-50 articles of the constitution after three times of amendment in a short time makes the fundamental law of the state vulnerable of further disrespected. The Constitution is the state founding document oand should be drafted as such embodying the philosophy and culture of the rule of law. In the current status of work of senior experts on judicial reform and the positive engagement of political forces may be revised the option of issuing the new Constitution of Albania with the necessary, well studied changes.
Given the facts described by the senior experts on the contradictory and uncontrolled level of laws it is easily proved that the freedoms and rights of citizens are unprotected and vulnerable at any moment by the state laws.
The reform should be launched by the concern to protect the freedoms and rights of citizens against the irresponsibility of state institutions and bodies in particular that have to serve and protect them, such as the police, prosecution and courts. Police, prosecutors and courts should not only be there in cases where citizens have violated the law, but also when they are violated and denied their rights by the state and its representatives. The current situation of the justice system shows that citizens do not consider the court, the police and the prosecution “door” as a “door” to protect their rights.
Reform of the justice system must begin with a change of mentality on the role of the state and its organs, particularly the police and prosecution in the field of protection of rights and freedom of citizens. Albanian politics drawbacks consist in accepting the mentality inherited from the dictatorship to view the state as a means of coercion, not the protection of freedoms and rights of citizens. The status of the defendant remains since the dictatorship under the pressure of this mentality. The status of the detainees and defendants in Albania, especially the ordinary citizens, is the status of the prejudiced not only from the public but also by law, the prosecutor and the judge.
Based on these findings we thought to pose the need that the reform in justice consists in turning the Prosecution and the State Police to the main defence instruments to protect the rights of citizens in cases where criminally prosecuted, as in any civilized country that is governed by principles of the rule of law.
Although in the past two years improvement has been made in the state police and the prosecutor's office as, psychological and physical violence continues to be exercised in these institutions on citizens in the name of law by many irresponsible police and the judicial officers. People are not oriented by politics and the media to seek indemnification for the violation of their rights, especially when their integrity of the image is violated from police and prosecution news for their escorting and detention without a court order. Even more unacceptable is the situation when the Albanian state has defined in the constitution that protects the right to life has not so far indemnified any family for the killings of their members by the irresponsibility and the inability of the state bodies.
The Constitution has no provision for the protection of civil society and its activities in the public interest, it has chapters for the prosecutor, judge, police, MPs, political parties and religious beliefs.
Civil society in these 25 years has become often prey of pressures, attacks from government and politicians trying to put their activities under totally unnecessary controls, like businesses or as public undertakings, at a time when their work is voluntary commitment unpaid from the public taxes. It is unprecedented that in 2011, the Minister of Interior stated to the media that the state police is working on the criminalization of reconciliation associations. This fact has happened only once in the history of Europe when Adolf Hitler ordered the criminalization of Jews aiming at their mass extermination.
RESTITUTION OF PEOPLE CONFIDENCE TO JUSTICE LAW ENFORCEMENT BODIES.
The Albanian people, who, in the world jurisprudence is known as a nation of culture of law for its ancient constitution the Canon, or ethics in salient customary law, today appears as a degraded society, degenerated into corruption and disrespect of the law without any faith in justice and the righteousness of the future. This marks the beginning of the weakness of the state, democracy and country progress.
People do not understand where the guarantee of this important reform lies when the laws and the constitution have been amended several other times but the country, democracy, rule of law and justice has not only changed for the better but have taken many steps back. Therefore we pose the need for discussing the importance of this reform with people in all towns and villages of the country.
The reform in justice as well as many others undertaken by the government were discussed at a moment when people have lost confidence in government and hope for the future. This is a severe blow to the society and democracy, a great loss to our heritage and rule of law and community culture.
It is positive the fact that the strategy of reform in justice states that:
"Another factor identified by analysis of the justice system and that influenced the current state of the justice system, even more important, has been the presence of high corruption in the system. It should be added the low level of professionalism of officials of justice ".
The strategy says that: In regard with the corruption problem the justicereform will create the conditions that the corps of judges and prosecutors meet the highest standards of integrity and ethics through conception, adoption and strict implementation of systems for monitoring and continued testing of moral, ethical and psychological integrity of the judges and prosecutors, as a criterion for tenure. While performance measurement systems for the professional judges and prosecutors will be perfected and their results will become the exclusive criteria for career progress of magistrates. "
We think that corruption takes place more in a poor society with a corrupted state that does not respect human rights and does not do reforms.
The organizers of this civil forum to the reform in justice are inclined to believe in a positive change and will work to raise the awareness of the citizens to support this reform, it is also of the opinion that is making its contribution with these modest submissions on the work that should be done.
For the Committee of Nationwide Reconciliation
For the Global Juridical Center For Justice and Transparency