Doc. 7991
23 January 1998

A recent law that excludes from their functions most of the judges elected to office in the post-Communist era in Albania

Motion for a resolution

presented by Lord Kirkhill and others

This motion has not been discussed in the Assembly and commits only the members who have signed it

1.       The Assembly recalls that Albania upon accession to the Council of Europe expressed its willingness to fulfill the obligations and commitments set out in paragraphs 13, 16 and 17 of Opinion No. 189 (1995).

2.       The Assembly also recalls that in September 1997, in Resolution 1133, paragraph 6e, it called upon the Albanian government to respect the independence of the judiciary.

3.       In 1992, with the end of the Communist regime, one of the most difficult challenges facing the new democratically elected government was the inherited justice system.

4.       Under the Communist system the judges usually presided over political kangaroo courts with sentences decided in advance. The most notorious were the special trials held only in Tirana where defendants usually received death or life sentences on political charges. The graduated jurists corps were tiny since the Law Faculty accepted only a very limited number of students coming in most cases from nomenclature families.

5.       The replacement of the old system of judges in 1992 through the normally graduated jurists was insufficient in face of compelling societal needs. Many persons who graduated before in a field other than law were trained in a Law Faculty (Tirana University) programme that started in 1993 and covered the whole curriculum but concluded in a shorter time. The Council of Europe supported this programme with 1.8 million US dollars. Many of these jurists were chosen judges in courts of law or public prosecutors. Others opened practices as lawyers and notaries. Several won scholarships and continued their law studies in western Europe. Several others are continuing further studies in the High School of Magistrature another project strongly supported by the Council of Europe. On 18 December 1997, the Parliament approved a much contested law (No. 8165) ruling that jurists who have graduated via this programme cannot be judges, prosecturos and notaries. Further this law foresees a period of service to become a judge, which only the old regime judges can fulfill.

6.       Judges from all over Albania and various associations protested against the law and asked President Meidani to send the law back to Parliament. Meidani refused to meet with the judges’ representatives and approved the law.

7.       On 22 December 1997, 13 judges from various regional courts staged a hunger strike in the Tirana Court House demanding the abrogation of the relevant articles in the law. A few hours later, police, led by the Justice Minister Mr Kondi, entered the Court house, dragged the judges out and detained them for a few hours. The next day, the High Council of Justice called by President Meidani sacked Judge Daci (Tirana Court) and formally warned two others. The same judges restatrted their hunger strike in St Anthony Church (Franciscan order) feeling that it would be safe from police brutality. Their requests are supported by the Association of the Albanian jurists Dura Lex Sed Lex and several human rights organisations.

8.       This development comes after a serious conflict between the Albanian Government and the Constitutional Court. This came after a ruling disliked by the Government when the authorities attempted to fire its judges and threatened to dissolve the Court. Earlier a constitutional amendment changed the composition of the High Council of Justice (the body that elects or dismisses judges) creating a majority of political appointees. Before its membership was 72% drawn from the judiciary.

9.       The Committee on Legal Affairs and Human Rights in its meeting on 19 November and 15 December 1997 expressed its grave concern at these developments and asked the Venice Commission to give its legal opinion.

10.       The Assembly, therefore,

i.       reiterates that the independence of the judiciary is a cornerstone of democracy and the rule of law ;

ii.       expresses its concern about the continuing conflict between the Government and the Judiciary ;

iii.       considers that all the jurists graduated after 1992, including those who attended university law courses supported by the Council of Europe, should have the right to serve as judges, prosecutors, etc ;

iv.       calls on the Albanian authorities to reconsider and address legislation incompatible with the principle of the independence of the judiciary, inter alia, the law 8165 and the law intending to retribute against the Constitutional Court ;

v.       considers that further technical assistance by the Council of Europe to build up the rule of law is vital and necessary.

Signed : ¹

Kirkhill, United Kingdom, SOC

Akçalı, Turkey, EDG

Bartumeu Cassany, Andorra, SOC

Besostri, Italy, SOC

Bühler, Germany, EPP/CD

Calleja, Spain, SOC

Contestabile, Italy, EDG

Fogas, Slovakia, SOC

Jansson, Finland, LDR

Lummer, Germany, EPP/CD

Martelli, Italy, EDG

Probst, Germany, EPP/CD

Robles-Fraga, Spain, EPP/CD

Selva, Italy, EDG

Siebert, Germany, EPP/CD

Wittmann, Germany, EPP/CD

Zierer, Germany, EPP/CD