Policy Goal 1
“Comprehensive and professional functioning of the governing institutions of the justice system in accordance with the constitutional and legal requirements and European standards, ensuring independence, efficiency and accountability”.
The policy goal 1 of the 2021-2025 Cross-cutting Justice Strategy (CJS II) contains the idea and spirit of an essential part of justice reform, the one that relates to the structure of the new mechanism produced by this reform. This new mechanism, defined in the Constitution of the Republic of Albania, and further in the law[1], provides as part of it several institutions, namely the High Judicial Council (HJC), the High Prosecutorial Council (HPC), the High Inspector of Justice (HIJ), the Judicial Appointments Council (JAC) and the School of Magistrates (SoM), which would govern all links of the judiciary as an autonomous power within the judiciary, free of any interference from other powers. Thus, all ties of the judiciary with the Ministry of Justice and the President were severed, ties that, before the reform, hindered the independence and impartiality of the judiciary. These institutions have specialized and separate responsibilities to carry out some key processes related to the proper functioning of the justice system and serve as complementary links to each other.
The HJC is responsible for the administration and management of the judiciary (auditing and management of their special budget, administration and management of the courts), and is the decision-making body for any issue related to judges (selection of candidates for judges and appointment of judges, promotion of judges, evaluation of judges’ performance, disciplinary and ethical issues, training of judges, etc.). The HJC responsibilities are not only related to the internal organization of the judiciary but, in particular, this body bears the responsibility for the functioning of the judiciary vis-a-vis the users of the court and society as a whole.
The HJC is also the governing body of the Prosecution, responsible for any decision-making related to prosecutors (selection of candidates for prosecutors, their appointment, promotion and evaluation of the performance of prosecutors, disciplinary and ethical issues, etc.).
In order to oversee the members of the Councils, judges and prosecutors of all levels, the General Prosecutor’s Office and to conduct institutional inspection of courts and prosecution offices (aspects related to institutional rules and administrative services), the HIJ was established as an independent constitutional institution. with the exclusive function of disciplining judges and prosecutors. According to the motto ‘no one is untouchable and everyone must be held accountable for legal violations’, all these activities are necessary to ensure the implementation of the principle of accountability and responsibility that all members of the justice system should abide by. Only an accountable system that operates within the legal framework, is efficient and transparent and ‘embraces’ the best standards of accountability can contribute significantly to restoring public confidence in the justice system.
The JAC is the body that verifies compliance with legal criteria and evaluates the professional and moral criteria of the candidates for High Inspector of Justice and the candidates for members of the Constitutional Court. The JAC was designed to be an independent body, which is formed every year by lot and aims to have the nature of a specialized and decentralized body. Its members, given that they normally continue their duties in the courts or prosecution offices where they come from, will be “tasked” with another duty, which due to its short longevity, will not be able to establish any relationship of dependence or interest of any kind.
Finally, one of the governing bodies of the judiciary is the School of Magistrates, which, according to the Constitution, is the only gateway to the judiciary (through the recruitment process by examination, based on vacancies announced by the HJC and HPC) and the only institution responsible for training incumbent magistrates.
The proper functioning of these institutions is the first fundamental prerequisite for the proper functioning of the entire justice system.
Policy Goal 1 contains two directions: the first direction requires that the governing bodies work in accordance with the requirements of the law and European standards, while the second direction requires that the governing bodies be able to work fully, be independent and work professionally, efficiently and in accordance with accountability standards. So, from the way Policy Goal 1 is formulated, it is concluded that, while the first direction is related to the exercise of functions by these bodies in accordance with European law and standards, the second direction is broader. The latter is related, firstly, to their functioning at full capacity, and secondly, to the observance of all the principles of law that should guide the work of these bodies. Principles such as professionalism or efficiency are general principles that should be applied by all justice institutions, including courts and prosecution offices of all levels.
So, first, these institutions, during the second four-year term of the justice strategy, must have achieved their full consolidation, whether in structure, the legislation that regulates them, their internal regulatory acts, etc., and second, they must produce genuine results related to their decision-making, results that show that these bodies are independent, professional, produce efficient solutions for the system and are established on the basis of accountability.
It is worth noting that the governing bodies of the justice system have a fundamental characteristic: they are not intended to remain merely bodies that solve only the internal problems of the system, whether of the court or the prosecution office. Rather, they must be able to understand the needs and demands that come from outside the judiciary, in order to serve the justice and citizens of a country, anticipate the needs of the system, and be a step forward in the strategic development of justice in a country. The demands of courts and prosecution office users to receive services from the judiciary is the duty of the governing bodies of justice and we estimate that, if it had been expressed in Policy 1, it would have marked a progress of the Strategy itself as regards this component.
In the Cross-cutting Justice Strategy 2017-2020 (CJS I) the first strategic objective was expressed in a similar way: “Strengthening the independence, efficiency, effectiveness and accountability of the justice system institutions”. From a literal comparison of the two strategic goals, it seems that they stand on the same provisions. However, as will be analyzed below, CJS II comes at a new moment, when all governing bodies have been set up and are functioning. CJS II therefore clarifies the role of each of these bodies.
The aim is to achieve Policy 1 by setting three specific main objectives: 1.1 Continuation of the implementation and completion of the process of transitional re-evaluation of judges and prosecutors in an effective and efficient manner in compliance with provisions of the Constitution and the law; 1.2 Update and improve justice reform legislation based on findings from analysis and monitoring of reform implementation, including, but not limited to, legislation on competencies, transparency, efficiency, and coordination; and 1.3 Strengthening and consolidating the governing bodies of the justice system in accordance with European standards, through the creation and development of capacities to carry out their activities with independence, efficiency and professional standards, and the way the governing institutions of the judiciary provide their services complies with the relevant rules and standards.
This study has chosen to address only specific objectives 1.2 and 1.3, given that the first specific objective continues to be closely linked to the vetting bodies, the Independent Qualification Commission (IQC) and the Special Appellate Chamber (SAC), and, even if they delegated their competencies to the HJC and the HPC, as required by the Constitution, again this transfer would be hasty and would risk that any analysis of the work of these bodies in a short time be a superficial one.
Meanwhile, the other two selected objectives are complementary to each other and give a more complete picture of how the strategic development of governing bodies is expressed / required during this four-year period.
[1]Law 115/2016 “On governing bodies of the justice system”.