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Ombudsman of Albania

ALBANIA

THE PEOPLE'S ADVOCATE INSTITUTION AND ITS RELATIONS WITH THE JUDICIARY IN THE REPUBLIC OF ALBANIA

People's Advocate Presentation, Mr. Ermir Dobjani at the Conference organized by the Council of Europe in Ljubljana (Slovenia) on 12-13 November 2001.

Mr. Chairman,
Dear colleagues,

I.

As we know through documentation and exchanges of experiences and legislations with colleagues of other countries, the power of the Ombudsman in relation to the judicial organs varies from country to country.

The Constitution of the Republic of Albania, adopted in 1998, in its article no. 60 defines that: "The People's Advocate defends the rights, freedoms and lawful interests of individuals from unlawful improper actions or failures to act of the organs of public administration".

In the item 3 and 4 of the art. 63 of the Constitution it is stated that:
Item 3: "The People's Advocate has the right to make recommendations and propose measures when he observes violations of human rights and freedoms by the public administration"
Item 4: "Public organs and officials are obliged to make available to the People's Advocate all documents and information requested by him".

In defining terms, in Albania there have been and still are running debates about whether the term "Public Administration" includes the judicial authorities and the general opinion goes in favour of that term including the courts too.

In the art. 25, law no. 8454 date 4.2.1999 "On the People's Advocate" it is stated that: "Without prejudice to item "c" of this article, the People's Advocate shall accept complaints requests or notifications of human right violations arising from the administration of the judiciary and judicial procedures. The investigations of the People's Advocate shall not infringe the independence of the Judiciary in ruling".

It is the same according to item b of the art. 18 of the Law "On the People's Advocate" "Following admission of People's Advocate complaint, request or notification the People's Advocate shall request explanations from the organs of public administration, as well as the public Prosecutor in cases of pre-trail detention and arrest".

In the article 19 item b it is stated that: "The People's Advocate shall be entitled to request explanations from all organs of central and local administration and obtain all files or material relevant to the investigation".

Meanwhile, in the item dh of the art. 21 of this law it is stated that: "Upon conclusion of an investigation, the People's Advocate without interfering with their procedures shall notify the competent authorities of the violations in case of infringement of right by organs of the Judiciary".

As it results from the Constitution and the respective law, our Institution has ample access to the judicial organs.

Our country as an ex-communist country being in a transition period has many imperfections and deficiency in the activity of giving the justice by the court. Those last ones have their grounds in the incompetence of the Judges, and their corruption.

It is for these reasons that the access of the People's Advocate is not constricted and I believe that this is a good legal solution. We also have received many complaints against the judicial decisions and the judicial procedures. Last year, in a period of 6 months we received 177 complaints that constituted 22% of all the complaints, while for 2001 we received 138 complaints for a period of 7 months. A major part of them were against the judicial decisions, out of our jurisdiction so, they have been refused.

In addition to complaints about unfair decisions we have received complaints about:

• Delays in the judgement of the penal or civil cases.
• Non-applying with procedures in relation to the notification to the parties of the date and time of the judgement.
• Non-providing defence during the trial to the accused persons missing the financial means to have a solicitor.
• Non-allowing to be present during the trial at the Supreme Court.
• The judicial administrations that have delayed the files not sending them in time for examination at the higher instance courts.
• Corruption of judges who didn't apply with procedures intentionally, etc.

During 2000, 14 complaints have been solved in favour of the complainants meanwhile, during 2001, 20 of them have been solved in their favour.

We think that the access of Ombudsman to the judicial organs should be enlarged, because it does influence in the incitement of these organs to respect the judicial procedures and as a consequence to the respect of the basic human rights.

II. The People's Advocate and the Constitutional Court

According to the Constitution of the Republic of Albania:
The People's Advocate is included among subjects entitled to approaching the Constitutional Court.

According to article 134, under the Constitution, the subject approaching the Constitutional Court fall into two groups: the subject entitled to submitting unconditional requests, and subjects submitting the conditional requests "only with relevance to the cases related to his interests" This difference derives from the content of article 134, item 2, under the Constitution. The People's Advocate is included among the subjects entitled to approaching the Constitutional Court conditionally.

The moment we just commenced our activity, it was significant for the Institution of the People's Advocate to interpret the definition of scope of interests related to the performance of the People's Advocate Institution.

In compliance with its power, the Constitutional Court through its verdict no. 49 dated 31.07.2001, has decided that the People's Advocate is entitled to submit the request to the Constitutional Court with respect to the compliance of the legislation applicable and the other normative prerequisites with the Constitution, or the International Agreements, the compliance of the International Agreements with the Constitution, as well as interpreting the Constitution, provided the case is related to his interests. Besides, the People's Advocate can make a request on an issue relating to his function that is the protection of rights, freedoms and lawful interests of the individuals from the unlawful, improper actions or failures to act of the organs of the public administration, as well as where there are when there are infringements of the constitutional regulations for the organisation and the functioning of his Institution.

Actually, we are pleased with the decision adopted by the Constitutional Court, since it does not restrict our entitlement to protecting the fundamental human rights and freedoms. This entitlement to approach the Constitutional Court is foreseen in letter "c"
Article 24 of the law 8454 dated 04.02.1999"On the People's Advocate" that states "If the People's Advocate finds that it is the content of a statute or other legal act, and not its application that leads to violations of human rights recognized by the Constitution or other laws; he shall have the right to:
c) to recommend to the Constitutional Court to invalidate those acts

We have started implementing the right to approach the Constitutional Court as in the following case:
An Albanian citizen, former land owner in his letter complained that the Decision of the Council of Ministers, no. 119, dated 18.03.200 "On the privatising procedures through bidding the state-owned packets of shares for the commercial companies operating in the non-strategic sectors" has restricted him and the other former land owners, under equal conditions, one of the fundamental human rights, i.e. exercising the right to his legitimate property.
After examination of the request submitted by us, the Constitutional Court decided to declare as incompatible with the Constitution the Decision of the Council of Ministers nr.119 item 1 letter "c" dated 18.03.2000.

We are in course of submitting another request to the Constitutional Court for invalidating a number of items from the Albanian Customs Code since they are incompatible with art.13 of the European Convention "On the protection of the fundamental human rights and freedoms" restricting the right addressing to the court.

Thank you

Ombudsman of Albania

ALBANIA

THE PEOPLE'S ADVOCATE INSTITUTION AND ITS RELATIONS WITH THE JUDICIARY IN THE REPUBLIC OF ALBANIA

People's Advocate Presentation, Mr. Ermir Dobjani at the Conference organized by the Council of Europe in Ljubljana (Slovenia) on 12-13 November 2001.

Mr. Chairman,
Dear colleagues,

I.

As we know through documentation and exchanges of experiences and legislations with colleagues of other countries, the power of the Ombudsman in relation to the judicial organs varies from country to country.

The Constitution of the Republic of Albania, adopted in 1998, in its article no. 60 defines that: "The People's Advocate defends the rights, freedoms and lawful interests of individuals from unlawful improper actions or failures to act of the organs of public administration".

In the item 3 and 4 of the art. 63 of the Constitution it is stated that:
Item 3: "The People's Advocate has the right to make recommendations and propose measures when he observes violations of human rights and freedoms by the public administration"
Item 4: "Public organs and officials are obliged to make available to the People's Advocate all documents and information requested by him".

In defining terms, in Albania there have been and still are running debates about whether the term "Public Administration" includes the judicial authorities and the general opinion goes in favour of that term including the courts too.

In the art. 25, law no. 8454 date 4.2.1999 "On the People's Advocate" it is stated that: "Without prejudice to item "c" of this article, the People's Advocate shall accept complaints requests or notifications of human right violations arising from the administration of the judiciary and judicial procedures. The investigations of the People's Advocate shall not infringe the independence of the Judiciary in ruling".

It is the same according to item b of the art. 18 of the Law "On the People's Advocate" "Following admission of People's Advocate complaint, request or notification the People's Advocate shall request explanations from the organs of public administration, as well as the public Prosecutor in cases of pre-trail detention and arrest".

In the article 19 item b it is stated that: "The People's Advocate shall be entitled to request explanations from all organs of central and local administration and obtain all files or material relevant to the investigation".

Meanwhile, in the item dh of the art. 21 of this law it is stated that: "Upon conclusion of an investigation, the People's Advocate without interfering with their procedures shall notify the competent authorities of the violations in case of infringement of right by organs of the Judiciary".

As it results from the Constitution and the respective law, our Institution has ample access to the judicial organs.

Our country as an ex-communist country being in a transition period has many imperfections and deficiency in the activity of giving the justice by the court. Those last ones have their grounds in the incompetence of the Judges, and their corruption.

It is for these reasons that the access of the People's Advocate is not constricted and I believe that this is a good legal solution. We also have received many complaints against the judicial decisions and the judicial procedures. Last year, in a period of 6 months we received 177 complaints that constituted 22% of all the complaints, while for 2001 we received 138 complaints for a period of 7 months. A major part of them were against the judicial decisions, out of our jurisdiction so, they have been refused.

In addition to complaints about unfair decisions we have received complaints about:

• Delays in the judgement of the penal or civil cases.
• Non-applying with procedures in relation to the notification to the parties of the date and time of the judgement.
• Non-providing defence during the trial to the accused persons missing the financial means to have a solicitor.
• Non-allowing to be present during the trial at the Supreme Court.
• The judicial administrations that have delayed the files not sending them in time for examination at the higher instance courts.
• Corruption of judges who didn't apply with procedures intentionally, etc.

During 2000, 14 complaints have been solved in favour of the complainants meanwhile, during 2001, 20 of them have been solved in their favour.

We think that the access of Ombudsman to the judicial organs should be enlarged, because it does influence in the incitement of these organs to respect the judicial procedures and as a consequence to the respect of the basic human rights.

II. The People's Advocate and the Constitutional Court

According to the Constitution of the Republic of Albania:
The People's Advocate is included among subjects entitled to approaching the Constitutional Court.

According to article 134, under the Constitution, the subject approaching the Constitutional Court fall into two groups: the subject entitled to submitting unconditional requests, and subjects submitting the conditional requests "only with relevance to the cases related to his interests" This difference derives from the content of article 134, item 2, under the Constitution. The People's Advocate is included among the subjects entitled to approaching the Constitutional Court conditionally.

The moment we just commenced our activity, it was significant for the Institution of the People's Advocate to interpret the definition of scope of interests related to the performance of the People's Advocate Institution.

In compliance with its power, the Constitutional Court through its verdict no. 49 dated 31.07.2001, has decided that the People's Advocate is entitled to submit the request to the Constitutional Court with respect to the compliance of the legislation applicable and the other normative prerequisites with the Constitution, or the International Agreements, the compliance of the International Agreements with the Constitution, as well as interpreting the Constitution, provided the case is related to his interests. Besides, the People's Advocate can make a request on an issue relating to his function that is the protection of rights, freedoms and lawful interests of the individuals from the unlawful, improper actions or failures to act of the organs of the public administration, as well as where there are when there are infringements of the constitutional regulations for the organisation and the functioning of his Institution.

Actually, we are pleased with the decision adopted by the Constitutional Court, since it does not restrict our entitlement to protecting the fundamental human rights and freedoms. This entitlement to approach the Constitutional Court is foreseen in letter "c"
Article 24 of the law 8454 dated 04.02.1999"On the People's Advocate" that states "If the People's Advocate finds that it is the content of a statute or other legal act, and not its application that leads to violations of human rights recognized by the Constitution or other laws; he shall have the right to:
c) to recommend to the Constitutional Court to invalidate those acts

We have started implementing the right to approach the Constitutional Court as in the following case:
An Albanian citizen, former land owner in his letter complained that the Decision of the Council of Ministers, no. 119, dated 18.03.200 "On the privatising procedures through bidding the state-owned packets of shares for the commercial companies operating in the non-strategic sectors" has restricted him and the other former land owners, under equal conditions, one of the fundamental human rights, i.e. exercising the right to his legitimate property.
After examination of the request submitted by us, the Constitutional Court decided to declare as incompatible with the Constitution the Decision of the Council of Ministers nr.119 item 1 letter "c" dated 18.03.2000.

We are in course of submitting another request to the Constitutional Court for invalidating a number of items from the Albanian Customs Code since they are incompatible with art.13 of the European Convention "On the protection of the fundamental human rights and freedoms" restricting the right addressing to the court.

Thank you