Judiciary under reconstruction. Albania’s EU-orientated reforms in progress

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TIRANA –  The extensive judicial reform that has been underway in Albania sine 2016 has started to take root. While it remains uncertain when Albania and North Macedonia going are to start the EU accession talks,  it is becoming clearer that Albania might enter of accession negotiations two steps ahead of other Western Balkans countries, which still have to a long way to go on the way to complete their judiciary reform.

Over the past six years, Albania has undergone a large-scale remolding of its judiciary system: from ensuring to separate the judiciary from the executive, over a more citizen-oriented legal aid system to making sure the young generation of judges and prosecutors is ready to take over in a few years. On top of that, Albania has entered a five-year vetting process which started to effectively operate since 2017.

Why Albania needs the judiciary reform

“Albania is implementing a comprehensive justice reform that addresses the long-standing deficiencies in respect of independence, accountability, efficiency, and professionalism of the justice system. In this regard, we have changed

Albanian Deputy Minister of Justice Fjoralba Caka; Photo: Facebook/F.C.

everything”, Deputy Minister of Justice of the Republic Albania Fjoralba Caka told European Western Balkans. “Now we have the new High Judicial Council (HJC) and a High Prosecutorial Council (HPC), which are two independent self-governing bodies who promote and remove judges and prosecutors, based on a transparent and well-detailed set of rules. Differently from the previous judicial bodies, there are no executive representatives and no MPs in these Councils”, stresses Caka.

HJC and HPC have 11 members each. The HJC is composed by 6 judges elected by the General Assembly of judges and five independent members elected outside the court system: two lawyers from the Albanian Bar Association chosen by the Independent Ad Hod Commission, two professors chosen by the nd a representative of the civil society, chosen by the Special Civil Society Commission and voted by a majority in the Parliament. The same goes also for the HPC, which has 6 prosecutors and 5 independent members.

While the new EU accession methodology is on the way and the accession process is to be reformed itself in a set of changes, Chapter 23 – Judiciary and Fundamental Rights. and Chapter 24 – Justice, Freedom, and Security remain some of the pillars of a country’s EU accession process.

Work in Progress

“We are also now working to establish methodology on the scoring of judges, which is to be based not only on meritocracy but also on transparency”, says Caka and reminds that previously there was no methodology on how to promote judges and prosecutors. She explains that in the former judiciary system, the General Prosecutor had vast centralized competences in the administration of the prosecutor’s office and criminal cases. It was the General Prosecutor who was responsible for the appointments of the head of prosecutors office in different districts, the disciplinary measures or promotion of the prosecutors, with a proposal of the Prosecutorial Council, a body which had merely advisory powers. The General Prosecutor in the old system would be appointed by the President of the Republic with the consent of the Parliament, a process that sometimes would be politicized. In the new justice reforms, there are more legal and procedural guarantees for the independent selection of the General Prosecutor. Now it is the High Prosecutorial Council that ranks the best three candidates for General Prosecutors, after filtering them based on a set of determined criteria and scoring. The list of the three best-ranked candidates submitted to the Parliament which selects one of the three candidates as General Prosecutor by the 3/5th majority of the Parliament.

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A great accomplishment of the criminal justice reform is the full independence of each prosecutor towards the General or higher Prosecutor. In the old judicial system, it was provided in the Constitution that the prosecutorial office is a centralized system and in practice, the General Prosecutor and the higher prosecutors had wide competences over the administration of criminal investigation and the transfer and career of other prosecutors. In the new justice reform, the prosecutorial system is not centralized and each prosecutor handles his own case, without immediate outer interferences higher prosecutors, but based on the principles of legality, objectivity, and impartiality.

However, some reforms are still to be developed.  “In order to tackle organized crime, we will probably have to have a serious talk about corruption in the judiciary”, assesses Caka, underlining that there is still a long way to go and it is a process that will start with the effective functioning of SPAK.

Caka also points out that part of the justice reform was also the introduction of the new Law on Legal Aid. The new legal aid law makes the justice system accessible not only for those who can’t afford it, for those without income who need to access it, such as families without a regular income but also to victims of trafficking, domestic violence, discrimination, etc. “As an important priority of the government towards building and strengthening the rule of law and access to justice for all, we are introducing it as primary and secondary legal aid”, says Caka.

In order to reduce the High Court backlog, the Ministry of Justice together with the High Judicial Council are scrutinizing different measures that are to be taken. The revision of the judicial map, the increase of the usage of alternative dispute resolution and the increase of tariffs for cases in higher courts are some of the measures that are planned to be taken in order to facilitate the courts’ backlog and have a faster administration of judicial cases.

Towards a Better Vetting Process

Caka stresses that the vetting of judges is a very important aspect of the reform. Albania has entered the vetting process relying primarily on two bodies: The Vetting Commission (5-year mandate),   (9-year mandate). Since the start of the process in 2017,  Albania has vetted more than 220 judges and prosecutors. They are verified based on three criteria: assets, background, and proficiency.

“If a judge or a prosecutor is dismissed, they cannot enter the judicial system anymore, while prevention for them to work as lawyers also applies”, explains Caka. She adds that the Ministry of Justice monitors the vetting process, who reports on institutions’ progress twice a year. “We are the main interlocutor between the vetting bodies or the other justice institutions and the Government, in order to make sure that everything is implemented according to the law. We are working very hard that the vetting of judges and prosecutors in the first instance before the Independent Qualification Commission ends within a five-year term, as planned”, she says.

Vetting process in Albania – the marching failure

The Ministry of Justice is the main body to oversee and monitor the implementation of the Justice Reform. In order to properly monitor the justice reform, we have adopted the Cross-Sectoral Strategy and its action plan, two strategic documents that contain specific measures for the new justice institutions. At least twice a year the Ministry of Justice gathers the Sectoral Justice Committee, composed by heads of the independent justice institutions, to discuss and monitor the level of implementation of the Strategy, its success, and shortcomings. The biannual monitoring reports are also available for the general public and published at the webpage of the Ministry of Justice.

Caka reminds that vetting is merely an administrative process, while additional monitoring is the responsibility of  Special Anti-Corruption Structure (SPAK), who assesses if the wealth accumulated during office was because of links with organized crime or product of corruption. “The first SPAK prosecutors are already appointed, while the Special Court for Organized Crime and Corruption has already started working”, concludes Caka.

No Luxury to Exclude the Civil Society

In May 2019, Albania has started the process of identifying the acquis under Chapters 23 and 24. “The Ministry of Justice decided to do an in-depth screening, so we have gathered around 30 institutions and divided the acquis into sub-chapters, respectively covering the Chapter 23, judiciary, fight against corruption and human rights. “We did the gap analysis, identified what has to be done and divided the responsibility”, says Caka and assures that changes are on the way.

And then, just some weeks ago, the civil society was invited to step in and gather around a Civil Society Platform in order to perform a quality check. “We invited the civil society to take a look at the directives from these sub-chapters and tell us how we can improve the work we are doing”, says Caka.

She stresses that the platform has “no hard-core restrictions” in terms of how civil society can or cannot participate in the process. “We will see how this cooperation goes and if it is effective, there is no hindrance to collaborate with them stronger in the future”, concludes Caka.

She stresses the need for civil society to take part in the EU reform process because, as Caka explains, even though the Ministry and the institutions are striving to do its best to bring Albania closer to the EU, there are definitely still gaps to be filled in, since the institutions do not deal with EU integration solely. “There are many organizations in Albania who are very professional and a lot of them rely on foreign donors because they do not want to rely on government funds and risk compromising their position”, says Caka. “Also, I really think that in Albania, we do not have the luxury to exclude them from the process. We need them as partners in this”, concludes Albania’s Deputy Minister of Justice.

With the judiciary and other reforms in progress, brain drain and officers leaving the public administration remain among Albania’s biggest struggles. “We have a problem to attract qualified workforce not only because of the brain migration but also because the salaries in the public administration sector are not that competitive yet”, admits Caka, adding that many qualified individuals opt for the private sector where they can earn more.

However, Albania is seeking for solutions to tackle this problem as well. Currently, the country is running a one-year student excellency program to attract the best students to work for the Public Administration. Only the Ministry of Justice has hired around 46 students during 2019

where they have a chance to do an internship at the Ministry of Justice and its subordinating institutions, with employment prospects upon program completion. The same mechanism, only with different figures, is applied in all central level government bodies and agencies. “I hope that it will motivate the students to stay within the system once there are open vacancies”, says Caka.

The judicial reform in Albania, which started in 2014, was then referred to as “the biggest judicial reform since the fall of communism” by experts and European diplomats. Even though the pace of the reforms did not always go as planned, the huge reform of the judiciary Albania had undertaken years ago is getting closer and closer to an end. By all means, Albania is to welcome the start date of accession negotiations with a solid ground to tackle Chapters 23 and 24 – the primary stumbling block of EU integration in the Western Balkans.

The Ministry of Justice is responsible for Chapter 23 and some acquis of Chapter 24. Most of the acquis in chapter 24 rests within the competence of the Ministry of Interior.

This article was produced within the “Preparing and Supporting Albania in the EU Accession Process” initiative framework, supported by the Embassy of the Netherlands in Albania and implemented by the Cooperation and Development Institute. The opinions, conclusions or recommendations expressed do not necessarily reflect those of the supporting institution(s).