Outcome 2.1.2
“Amendment of legal provisions regarding the judicial system, to allow for a competent, transparent and efficient organization of judicial processes and to attract adequate and qualified staff. Inclusion of specific legislation to ensure transparency and efficiency of the processes implemented by the judicial administration, the efficient management of the quality performance of the judicial administrative staff and the possession of sufficient funding for any costs”.
This outcome aims to strengthen the court capacities in the institutional aspect. Even from the way the outcome is written, it is possible to identify two main and complementary goals that are intended by it: first, the laws related to the functioning of the judiciary should be analyzed, revised, and second, the appropriate legal, regulatory and institutional mechanisms should be promoted, in order to regulate and continuously manage the work of the judicial administration, including quality control.
The fundamental law that regulates the organization and functioning of the court system in Albania, their internal organization, the functioning of the court administration and the status of judicial civil servants is Law no. 98/2016 “On the Organization of the Judiciary in the Republic of Albania”. However, other laws also provide complementary provisions related to the specifics of the institution that these laws regulate. For example, Law 95/2016 “On the Organization and Functioning of Institutions to fight Corruption and Organized Crime” contains special provisions for employees of the judicial administration of Courts against Corruption and Organized Crime (Articles 44 and 45 of the Law). Also, Law 96/2016 “On the Status of Judges and Prosecutors in the Republic of Albania” requires the chancellor of the court (senior civil court clerk) to make available to the responsible officer who is auditing a certain magistrate assigned to that court, the necessary conditions for the exercise of duties (Article 91 of the Law). The HJC also has a very significant role in determining the progress of the courts’ activities. By issuing acts of general force and its instructions, the HJC has the right and obligation to regulate the way in which the courts will have to act on certain issues, or the form of acts they will have to issue and implement.
It is important that, after some time has passed since the entry into force of these laws, we analyze the extent to which these laws are compatible with each other, how harmonious they are and how capable they are, being used by various bodies, to yield the desired product in practice. It is also very important that, in accordance with the law, the tasked institutions develop the regulatory basis and ensure the accountability process for judicial civil servants.
The fulfillment of this outcome, according to the plan of measures, will be realized in two parts – the analysis of the law and regulations will be carried out within 2021 and the development of changes or new acts within 2022. In addition, the end of year 2025 is intended as a deadline for a complete and thorough analysis of the developed regulations, to check how efficient they have been and whether they have managed to enhance the transparency and efficiency of the courts; as well as whether the judicial administration has managed to increase its level of performance by improving the quality-of-service delivery/fulfillment of duties.
This time scheduling does not seem to be very realistic because the greatest weight in the accomplishment of this result will fall on the development of the regulatory framework and the amendment of the existing legal framework, in case obstacles are identified that affect the good administration of courts. Given the pace with which the HJC has acted in issuing instructions to the courts[1] and also the recent amendments to the laws that entered into force in May 2021 which also affect issues of courts’ structural character, for example introducing the position of assistant in district courts, it is almost impossible to develop the entire support framework in such a short time. Also, the creation of a new judicial map should be considered as part of this outcome. It would be a mistake to claim that even prior to a clear distribution of courts, general, long-term policies and rules can be developed with real impact on issues of justice administration and court efficiency.
What clearly stands out as a shortcoming in the plan of measures that meet this outcome is that no measure provides for the revision of the fundamental legislation, as required by the Outcome and Specific Objectives outlined above. All measures refer to analyzing, amending and complementing secondary legislation only. Consequently, these measures cannot fully fulfill the outcome. If we take only one example, hiring of qualified staff for the judiciary – a requirement of this outcome – it is clearly impossible to claim that amending and complementing regulatory acts would suffice, given that the job positions’ criteria, financial remuneration, etc., are part of the fundamental laws. It is appropriate to mention the case of legal assistants – vacancies that cannot be filled, for reasons mostly related to the law and the way it has regulated this category. The law does not significantly differentiate between their entry into the system and the magistrates’. It only provides for a substantial difference in the financial remuneration of these two categories.
Conclusion: The Outcome is in line with Specific Objective 2.1 and Policy 2, but it is not realistic due to: the short time left for the agencies to complete their regulatory framework; the failure to take into consideration the time needed to produce the recently-made changes; and the failure to harmonize these deadlines with the resolution of the issue of the new judicial map, which is key to the good administration and efficiency of courts.
[1]Decision of the HJC, no. 78, of May 30, 2019 “On the calendar of cases at the Court of Appeals”; Decision of the HJC no. 47, of February 11, 2021 “On the approval of the “Guide “For maintaining and filling in tables with statistical data for the purpose of measuring and monitoring courts’ productivity and efficiency””.