Court in enforcement
This process’s progress is closely linked to the judiciary’s independence, which is necessary for respecting the rule of law. A judge of the Constitutional Court in his opinion expressed in the position of the minority for the decision of this Court, no. 11/2004, states that “The principle of the rule of law about the separation of powers implies the guarantee of fundamental human rights and freedoms through an independent and impartial judiciary. In this context, this judiciary should be understood and accepted as a judiciary that self-governs, self-controls and self-corrects “.
Referring to Article 145/1 of the Constitution, which states that “Judges are independent and subject only to the Constitution and laws,” it is also emphasized that the independence of judges and courts is one of the basic principles of a democratic state and that their role in exercising the function about justice, enables them to ensure the implementation of the norms expressed in the Constitution, laws and other legal acts, to guarantee the rule of law and to protect human rights and freedoms.
On this basis, it is noted that judges and courts’ independence is not an end in itself. Adherence to this principle is a necessary condition for the protection of fundamental human rights and freedoms. The second paragraph of Article 451 and public trial”. In this sense, this independence is not a privilege. Still, one of the judges and the Court’s fundamental duties, deriving from the human right to have an impartial arbitrator in a conflict. Ensuring such a standard is also a guiding criterion for assessing the independence of judges and courts.
The jurisprudence of our Constitutional Court, regarding the application of the principle of separation and balance between powers, as well as the Direction of the rule of law, has emphasized that the independence of the judiciary must be understood in several aspects:
• In the first place, it should be understood as essential independence, i.e., a right of the courts to give decisions impartially and without being influenced by the interests of any other branch of government;
• Secondly, as structural independence, which requires the provision in the Constitution of the institution that carries out the appointments and dismissals of judges;
• Thirdly, organizational and financial independence, which in itself is part of structural freedom.
“The independence of judges and courts is one of the basic principles of a democratic state, but it is not an end in itself. Adherence to this principle is a necessary condition for the protection of fundamental human rights and freedoms. In this sense, this independence is not a privilege. Still, one of the judges and the Court’s fundamental duties, deriving from the human rights of having an impartial arbitrator in a conflict, guaranteed by the Constitution. On the other hand, independence of the judiciary cannot be understood without the independence of the judge within the very structure of the judiciary, through which it is ensured that no judge can interfere in the activity and persuasion of another judge”.
The interpretations made by the Constitutional Court are critical to understanding the content of the Constitution and the laws that regulate issues of the activity of the judicial function, the status of the judge, the organization of the judiciary, internal independence, as well as its relations with bodies of other powers. These issues are decided by the Constitution and the organic laws adopted by a qualified majority of the Assembly’s three-fifths.
It is no coincidence that the law “On the organization and functioning of the judiciary,” which is dedicated to the function and organization of the judiciary as a whole, is separate and distinct from the law “On the organization and functioning of the High Court,” which regulates specific issues of organization and functioning of the latter. It is not coincidental that the Ministry of Justice is the only ministry controlled by an organic law and not through an institutional regulation, as all other churches are held. The legislator intended to handle the minister of justice’s relationship with the judiciary and especially with the High Council of Justice, with a hierarchical legislative act, as necessary as the act itself regulator of the Court and the HCJ.
The courts have internal independence: Sanctioning the judicial function with three levels of trial by the Constitution, the Constitutional Court has interpreted it as the judiciary’s inner independence. Rule of Law in the Constitution of the Republic of Albania court decisions of lower courts by courts higher, no other body, whether the HCJ or the Minister of Justice, has the right to review and assess the legality of final court decisions, disregard their content and hold the case judge accountable.
Referring to its practice, the Constitutional Court deems it necessary to reconfirm the position that court decisions are reviewed only by the highest Court and that no other body can assess the legality and merits of court decisions, as long as they do not have been changed or overturned by a higher court. Following this reasoning, we would like to add that, when the Constitutional Court states that this power is exercised gradually, it does not at all mean any hierarchical dependence within the judiciary, but only an enforcement control and interpretation of the law, from the highest Court to the lower Court. Therefore, the Court
Constitutional, interpreting Article 145 of the Constitution (“judges are independent and are subject only to the Constitution and laws”), he stressed that: No other power can function as a court and exercise the duty of a judge. No one may interfere in the administration of justice or the adjudication of some issues. No one is allowed to question the recognition and value of decisions or refuse to implement them after cutting shape.
However, the doctrine raises the concern that the two inspectorates that control the work of judges, that of the High Council of Justice and that of the Ministry of Justice, in the performance of their duties, are not limited only to the manner of execution by judges. Still, they also review court decisions, commenting on how judges apply substantive and procedural law. From the High Council of Justice statistics, it results that the vast majority of disciplinary proceedings and dismissal are based on the argument that the judge has erred substantive or procedural law in the issuance of court decisions. Such an attitude is considered a violation of the independence of the judiciary. Its to interpret laws. We think that the High Council of Justice has the opportunity to exercise this control through criteria for the results achieved by the judge, taking into account the number of decisions given by him, those overturned by the highest levels of the judiciary, to the number of those left in force.
The courts are independent of the executive: The debate over the relationship it creates with the judiciary, the activity of the High Council of Justice and that of the Minister of Justice as a member, and the unique role that the latter has in the High Council of Justice. The Joint Panels of the High Court, in the request they sent to the Constitutional Court with their decision no. 3, dt. 10:12. 2003, submitted that the right of the Minister of Justice to conduct inspections of courts and judges, as well as his exclusive right to propose to the HCJ, the taking of disciplinary measures, including the dismissal of judges, constitute powers that violate the principle of separation of powers and the declaration of independence of judges. However, this claim was not accepted by the Constitutional Court, remaining a claim defended only by a minority of its members. Addressing the Minister of Justice’s role as an aspect of the principle of separation and balance between powers, the Constitutional Court, in justifying its decision, stressed that the Joint Colleges’ submission of claims is incorrect.
According to her, the Minister of Justice’s influence would be valuable if the HCJ would make the verification and proposal of the disciplinary measure through his inspectorate. “In these conditions, the HCJ also has the appropriate instruments, its Inspectorate, to verify any proposal that comes to it for disciplinary proceedings.” Meanwhile, the claim of the Panels, according to which, the right to inspect and control judges of the first instance and the appeal by the Minister of Justice, contradicts the independence of the judiciary, the Constitutional Court responded with the need for study and review of legislation by the relevant bodies.
The Constitutional Court ruled that: Members of judicial councils, whether these judges or not, also the Head of Government, nor the Ministers can be members of the Judicial Councils. Each state must adopt specific legal rules in this regard. In these conditions, it does not seem to us that the debate on the minister’s role is still closed.
Justice and the inspectorate next to him, for the control and disciplinary proceedings of judges. Meanwhile, there is a significance because this role has a supervisory and proposing character, and the High Council of Justice should pass all discussion and decisions regarding these proposals.
The courts are generally considered independent, and judges will rarely decide whether a court is independent. In this sense, she adds that in a democratic state, based on the rule of law, the legislator has the right and duty to determine by law criminal offences, which cause substantial damage to the interests of persons, society or the state, or that create the risk that such damage could occur in the future.
These guarantees find their expression in Article 147 of the Constitution, the content of which leaves the governance of the judiciary to the competence of the HCJ. According to this provision, this constitutional body, independent of the legislature and the executive, among other things, decides on the transfer of the first instance and Appellate judges, on their disciplinary responsibility and proposes to the President of the Republic for appointment candidates for judges.
The Constitution has given the President of the Republic the presidency of the Council of High Court of Justice, for the fact that the head of state can exercise better than anyone else the mission of moderator in the activity of the High Council of Justice since his function is endowed with prestige and that the position occupied by his body places him above all parties62F. To realize self-government e Judiciary The High Council of Justice, for the most part, consists of judges, who, exercising their functions as such, recognize the connection of this Council with the judicial corps.
The Constitution has not detached the High Council of Justice members from trial and, consequently, from the interests of the members of the HCJ coming from the judiciary does not create guarantees for avoiding conflict of interest. The arrival of the majority of HCJ members from the Court can create problems related to the efficiency of the HCJ because these members perform part-time duties in the HCJ while exercising full-time judicial functions in the respective courts64F Article 147 of the Constitution does not provide for any qualification criteria for the selection of HCJ members to be elected by the Assembly.
Having no essential criteria to refer to, the legislator is unclear when making the appropriate legal arrangements. Furthermore, this non-provision of bare/minimum standards may create premises for abuse of discretionary power enjoyed by the legislature to regulate in law the particular criteria that a candidate must meet to be elected a member of the HCJ. Also, the minimum majority of 36 votes that is enough to be elected a member of the HCJ by the Assembly is a shortcoming of
the current constitutional regulation in terms of the guarantees it must provide given the independence of the HCJ. In the conditions when a candidate can be elected a member of the HCJ only with the ruling majority’s votes, bypassing the role of the parliamentary minority in the voting process, doubts are created in the Direction of independence that should characterize this constitutional institution.
This issue becomes even more critical, given that the Deputy Chairman of the HCJ is elected by the members elected by the Assembly according to the latest amendments to the organic law of the HCJ (no. 8811/2001). The Presidency of the High Council of Justice by the President as well as the highly active role recognized by the President, in addition to the right to chair this body, but also to replace the constitutional function with a pure nature executive, that of the vice-president of the HCJ, in case of the existence of a vacant position, should be seen closely related to the constitutional functions recognized to the President of the Republic about the judiciary the judiciary’s self-government concept finds its expression in the context of the separation of powers and their interaction.
The High Council of Justice’s interaction with the executive appears mostly in the procedures of disciplinary measures against judges. These can not be done without the Minister of Justice’s active participation, and their appointment can not be made without the approval of the President of the Republic as chairman of the HCJ. The minister of justice’s role is seen as problematic, not so much in terms of his presence in the Council as of his activation. The concentration of competence exclusive to initiate disciplinary proceedings against a judge in the hands of the Minister of Justice is contrary to EU standards. It does not constitute a guarantee in terms of impartiality that the Minister of Justice must-have in all cases of judges’ testimony.
The judiciary’s independence as a principle is reflected in its independence and autonomy from the legislative and executive branches of government and political parties, the state and all other institutions, centres of power, public opinion, and all other possible pressure sources.
The state of independence of the judiciary in a country is not only determined by law dealing with it. It is, also, a product of respect paid to practice for the courts’ independence, for the conditions and circumstances in which justice is administered. Judges are independent not only because the law says so. They can judge based on law and relevant facts only if they feel safe and well protected against illegal attempts to influence their decisions.
As a person, the judge’s independence can be assessed in his determination to protect the judiciary’s freedom and autonomy and the Court in complying with the law in each case and even in each particular topic regardless of consequences. So, judges’ perception and independence are crucial for the judiciary’s freedom as a legal framework.
The independent position of a judge is guaranteed and protected by the Constitution, by national laws, and from ratified international treaties which provide: elections objective and dismissal procedure, indefinite term in office, irreplaceable of judges, immunity, and salaries that ensure self-sufficient material security and independence, as well as social position, etc. It is essential that the two main principles, that of independence and impartiality, although closely related to each other, be treated separately from each other to understand the essence of their purpose. This purpose is related to putting in place of citizens’ rights and the implementation in their favour of a due process of law; we will dwell on the treatment of each of them separately below.