Miqësia's Erfaringsprojekt


Support to the justice system in Albania

Development of alternative conflict solving methods


By Hans Henrik Brydensholt, Legal Advisor


Miqësia er albansk og betyder venskab





Kontaktadresse: information@miqesia.dk




Version 1.0 - 09.08.2005



Ministry of Foreign Affairs. DANIDA.


Mission 23. - 31. October 1998.


Report No. 15.


[Den foreliggende udgave er forkortet ift den oprindelige; således er forskelligt bilagsmateriale, bl.a. Forfatningen fra 1998 og en række breve udeladt. BA, august 2005]





1. Background and General Status of the Programme

1.1 As mentioned in my previous reports the project has up to 1998 consisted of two components: one was dealing with post graduate training courses for young judges to be held in Denmark. The other with the development of alternative conflict solutions in Albania.

The programme has been part of the Danish transitional assistance given through Danida to Albania after the change of Albania's political system in 1991. The period stipulated for transitional assistance expired by the end of 1997, but Danida has agreed that amounts saved on the mediation component could be used to continue this project in 1998. With the support given from Danida, it will be possible to continue the project through 1998.

But it has not been possible in 1998 to get Danida-support for the continuation of the else highly appreciated training courses in Denmark for young Albanian judges. It should, however, be noted that it has now been decided to give a prolonged and enlarged assistance to Albania 1999-2001 and with a possibility to further assistance also in year 2002.

1.2 The work on the new constitution has been finalized, and the draft approved in Parliament [...]. The process has been difficult due to the political opposition, as described in an OSCE paper [Annex]. The international community highly appreciates the result. The draft will be submitted for referendum on 22 November 1998.

1.3 As mentioned in my Report No. 14 (point 1.2) the Albanian Director of Prosecution, Arben Rakipi, has requested assistance from the Danish prosecution service. As a follow-up, I wrote a letter of 24 June 1998 to the Director of the Danish Prosecution, Mr. Henning Fode [...]. Mr. Fode is positive towards the request. But due to other obligations, it was not possible to arrange for his participation in my Mission 23 - 31 October. Mr. Rakipi was informed accordingly, directly from Mr. Fode [...].

1.4 As mentioned in my Report No. 14 (point 1.12 and the Minutes of the meeting on 3 June with the Minister of Legal Reform) a Danish support for the introduction of the Ombudsman system was asked for. It was anticipated that a conference on this issue should take place in Albania in late September 1998.

Due to the disturbances in the public order which occurred on 14 September 1998 following the assassination of a member of the oppossition leadership, Azem Hajdari, the conference was abandoned. Nevertheless, the draft law has been finalized and approved by the Cabinet, and the law would be ready to be passed when the new constitution is in place. In accordance with the request, I informed the Danish Ombudsman, Hans Gammeltoft-Hansen in my letter of 24 June 1998 [...] and later on the date of the planned conference [...]. The Ombudsman has responeded positively [...] and has now sent his remarks to the draft [...].


Rasim Gjoka. Photo: Bjoern Andersen, 2003

Rasim Gjoka. Photo: Bjoern Andersen, 2003


1.5 The Foundation on Conflict Resolution and Reconciliation of Disputes has continued its work according to plans. A report covering the period June-September 1998 is included as Annex IX. In addition to that I have received an article "The Mediator and his role in the mediation process" prepared by the General Secretary, Rasim Gjoka, for publication in the Foundation's magazine "Reconciliation" [...]. This article refers to a survey (questionnaire) conducted in the first months of 1998 [a copy can be downloaded as a 2 MB PDF-file]. The survey confirms the interest of the general population in the availability of a mediation possibility in the country, and also shows the immense distrust which is common in the general population towards courts and the prosecution service.

Lastly, I have received a paper dated 16 October 1998 with the Foundation's suggestions for activity in the period 1999 - 2001 and an attached budget [...].

1.6 The work on the Draft Law on Alternative Dispute Resolution has been finalized in the Ministry of Justice and it is expected that the Draft will be submitted to Parliament in the beginning of 1999. It is expected that the number of cases of conflicts presented to the Foundation then will increase sharply.

1.7 As mentioned in Report No. 14 (the Minutes of the meeting with the Dean of the Law Faculty on 3 June 1998) a request was made for the assistance of a Danish specialist to work for the inclusion of mediation and other alternative dispute resolution methods in the curriculum of the Law Faculty and the School of Magistrates.

I have received the acceptance from Assistant Professor Vibeke Vindelev to assist as requested [...] and it has tentatively been planned that she should join me for a Mission to Albania 18-22 February 1999.

1.8 I have been in contact with the Head of the Mediation Board in Oslo, Karen Paus, and she has sent me a copy of the request for support for Norwegian participation in the further development of the mediation project in Albania which has been presented to the Norwegian Foreign Minister [...]. The Norwegian authorities have so far taken no position, but it could be that there will be shown a positive attitude after a recent visit to Norway of the Albanian Foreign Minister.

1.9 As mentioned in Report No. 14 (point 1.8 [...]) a moderated law on the Organisation of Justice in Albania was drafted with assistance from OSCE. The new law had - at the time of my Mission in October 1998 - not been presented to Parliament. But this should take place in a very near future. It is expected that it could be passed before the referendum on the new constitution on the 22 November 1998.

1.10 The new law on the Organisation and Functioning of the Court of Cassation and the Administration of the Judicial Services (Report No. 14, Minutes of the meeting with Court President, Arvi Shehu, on 2 June 1998 [...]) has been passed without changes and is now in force.

1.11 The UNDP-supported work on a "Plan of Action for the Justice System" - formerly titled the Master Plan - has been nearly finished. But under the disturbances in Tirana on 14 September 1998 the Ministry of Justice was occupied and their computers stolen. This meant that the text of the "Plan of Action" disappeared. Some of the diskettes have later been found, and other parts have been re-typed after a paper version. Nobody is able to set a final date for the publication.


2. The Aims of the Mission

- To discuss the development of the Project

- To discuss the plan for the Foundation's activities 1999-2001 and the budget for this activity

- To continue the discussion on the rehabilitation of the Judiciary and the coordination of the work on a Judicial Reform

- To prepare and participate in a visit of Counsellor Lis Jespersen, Danida, 28-31 October 1998


3. Activities

Friday 23 October 1998

15:00 Received in the airport by Director of Prosecution, Mr. Arben Rakipi and Coordinator Qemal Minxhozi.

17:00 Discussion of the Programme with Mr. Qemal Minxhozi.

19:00 Dinner with Mr. Arben Rakipi who informed me about the latest developments of the political situation in Albania. Especially he explained regarding the cases he has raised towards 6 members of Parliament who are accused of having inspired to the armed confrontation in March 1997, and the on-going investigation of the killing of Azem Hajdari. He mentioned that he has asked for international participation in the investigation.


Saturday 24 Ocober 1998

09:00 Meeting with the Dean of Law Faculty, Mrs Vasilika Hysi. Mrs. Hysi has before she recently became Dean of the Law Faculty been the coordinator of the UNDP Action Plan. From the Minister of Justice, the main author had been the Vice Minister, Mr. Hajdari. But he is no longer in the Ministry. From UNDP, Vienna, Renate Winther has participated. It does not seem quite clear how the work is going to be finalized.

I informed the Dean on the plan for Vibeke Vindelov's participation in my Mission to Albania in February 1999.


Mariana Semini. Photo: Bjoern Andersen, 2003

Mariana Semini. Photo: Bjoern Andersen, 2003


10:00 Meeting at the Foundation of Conflict Resolution with the chairman of the Board, Prof. Mariana Semini, Secretary General Rasim Gjoka and Coordinator Qemal Minxhozi. We went through the plans for the period 1999-2001 and the proposed budget. It was agreed that further discussion should take place when Lis Jespersen could participate.

11:00 Meeting at the Magistrate School with the Director, Mrs. Karmen Qineti, and Mariana Semini. The School of Magistrates has been able to select 20 aspirants who have proved to be very able. The aspirants are now in their second year, which is the year where they are distributed in courts and prosecution offices in order to be acquainted with the work in practice. The third year will as well be spent in various courts and prosecution offices, but in that period the aspirants will take active part in the work. It is planned that the aspirants during the course should be given the opportunity to see foreign justice systems. It was a sincere wish that a class each year could go on a study tour to Denmark. I maintained that if they should be invited to Denmark, it should not be just for a visit, - but for an intensive 4-5 weeks course, which could give them real knowledge of the development of law in various legal systems. The School of Magistrates could easily support such an idea. The optimal time for a study tour would be by the end of the second year.

We discussed the obligation which would fall on the Magistrate School to conduct the tests which - according to the drafted law on the organisation of the judiciary - should be passed by all Magistrates who have been less than 10 years in service. Karmen Qineti expressed her assurance that the School would be able to handle this task in a fair, non-political way. She was satisfied with the way in which the applicants for the Magistrate School's course has been selected. There has been no criticism afterwards. She stressed the importance for the school of being able to stand outside political influence. An international interest and participation in the development of the school would be the best assurance in that regard.

17:00 Meeting with the President of Cassation Court, Mr. Avni Shehu.

The building of Cassation Court is still under rehabilitation, but it is nearly finished.

Mr. Shehu told me that the law on the organisation of the judicary which has caused so much trouble in the beginning of the year and which has been modified after mediation by the OSCE Ambassador, Daan Everts, has not yet been changed in accordance with the suggestions from the European experts, even if it was expected to take place in the near future.

The law on the organisation of the Cassation Court has been passed. His fear that the government would use the possibilities opened by the new law to have so many new Cassation Court judges appointed which would support the political viewpoints of the government that this would give a politically biased Cassation Court, has not so far shown to be justified.

So far, only 4 new judges have been appointed. The Court is now organized in panels, with 4 judges in the Criminal Panel, 4 in the Civil Law Panel, 3 in a Commercial Law Panel, and finally 3 in an Administrative Law Panel. The Presidency of the Cassation Court is composed by the President himself and the 4 chairmen of the Panels. Each panel appoints its own chairman. As a Chancellor of the Court has been appointed Mr. Pulloshi, who had earlier been responsible for editing and publishing of Cassation Court decisions. When this activity was stopped, due to lack of further support from America, he was appointed as an international relation officer of the judiciary. It was now - according to the law - his duty to take care of the administration of the Cassation Court, including deciding by lot which cases should be dealt with by the various judges.

We discussed, as we have done before, the establishment of an independent think-tank and Shehu again expressed his support of the establishment of such a body.

I mentioned the idea of organising a pilot project whereby the entire justice system, including the judiciary, should be re-organized in a specific geographical area. This idea was, after the arrival of Lis Jespersen, to be discussed further at a meeting with the Minister of Justice, the Minister of Public Order, and the Director of Prosecution. He will support the idea.

Mr. Shehu was worried about the result of the various surveys regarding corruption in the judiciary. Even if the Commission of Inspectors attached to the High Council of Justice had started its work, Mr. Shehu stressed the advantages which would be connected with the development of means for self-discipline among the magistrates and judges themselves. He was thinking of having a general meeting of all magistrates and judges in the beginning of 1999, and that the main issue for such a meeting should be how the judiciary itself could explore and discipline mis-use. It could well be that the judiciary would need an international support for its work on this issue. I expressed my willingness to recommend such support.


Sunday 25 October 1998

17:00 Meeting with the Danish Police Inspector, Jorgen Hoxer, member of the MAPE Mission. Mr. Hoxer has tried to describe how a pilot project could include a much closer co-operation between the police force and the prosecution service. We agreed to continue the discussion on this subject after the arrival of Lis Jespersen.

19:00 Dinner with Advocate Perparim Kalo, member of the Board of the Foundation. Mr. Kalo gave me an actual picture of the economic situation in Albania. It seems that a number of foreign companies now is regarding investments in the country. This means that the legal field in Albania should be geared also to handle international relations. We would discuss the further development of the Albanian advocates and their organisations in a later meeting with participation of Lis Jespersen.


Monday 26 October 1998

09:00 Visit to the Tirana District Court and meeting with the President, Mr. Pajtim Hoxha.

On the day of my visit a case against 14 young men from Vlorë [Vlora] was on-going. The 14 were accused of having committed a great number of very serious crimes as members of a gang. For security reasons the court building would be closed for other people not related to this case. That meant that all other cases fixed to take place on this day had to be postponed. It is obvious that such a situation causes very serious resentments from advocates and parties in cases which had for a long time been prepared for a court hearing. It is strongly needed to have a court building constructed which could handle such serious cases at the same time as ordinary business is conducted in the other part of the building. The Council of Europe (the PHARE Programme) has plans for that. There is need for coordination with the Danida pilot project.

I discussed the case management with one magistrate who has been in Denmark, and with the Court President as well as the Vice President. All agreed that given better work conditions, it would be possible with a drastical diminishing of the number of magistrates and assistant magistrates. Presently, there are 50 magistrates and 49 assistant magistrates. The future number probably could be 35 and 25, respectively.

10:30 Meeting at UNDP with Ambassador Wahlberg and Mr. Arben Rama.

Mr. Wahlberg mentioned that he in accordance with the wishes of UNDP, Vienna, would do his outmost to have the Action Plan finished as soon as possible. It had earlier been the idea that there should be a round table when a draft was finalized, but before its publication. This idea was no longer relevant, as the whole process has been postponed. He would not himself propose a conference to take place after the publication, but if others would think it useful UNDP would support such a professional discussion. He stressed that UNDP would only participate in the further work on the rehabilitation of the justice system, as long as that would be in agreement with all donors and international institutions. He was very much aware of the criticism, not least the Council of Europe had expressed over the fact that UNDP at all had worked in this field.

UNDP is currently concentrating on environmental problems and recollecting of arms.

13:00 Meeting with the Minister of Justice, Mr. Thimio Kondi.

Mr. Kondi explained how the development in government has been since the public disturbances on 14 September 1998. We discussed once again the idea of a think-tank as a follow-up when the UNDP report was published and also about what to do with corruption problems. I mentioned the interest Mr. Shehu had in ensuring self-discipline among the judges and magistrates and his wishes for international support in this. We also discussed the need for support of the newly established Commission of Inspectors attached to the High Council of Justice. It was agreed that we should continue to discuss how Danida could support the development of an independent, professional and uncorrupt justice system after the arrival of Lis Jespersen.

16:30 Meeting arranged by the Foundation on the conclusion of the survey [...].

A number of interested persons were invited, among them the Minister of Justice, the President of the Cassation Court and the Director of Prosecutions. All aspects of the survey were discussed. The Minister, the Court President and the Director of Prosecution were all asked to come up with their ideas regarding the rehabilitation of the courts and the prosecution service.


Tuesday 27 October 1998

09:00 Meeting with Police Chief Inspector Jorgen Hoxer. We discussed a pilot project in further detail.


Daan Everts. OSCE photo, 2001

Daan Everts. OSCE photo, 2001


12:30 Meeting with the Head of the OSCE presence in Albania, Ambassador Daan Everts. Mr. Everts is well acquainted with the Danida Foundation and the ideas of supporting a form of inquiry into the judiciary as well as the idea of a think-tank and a pilot project. This was to be discussed further after the arrival of Lis Jespersen.

Mr. Everts expressed the hope that Danida could arrange a sort of twinning project whereby the Danish Ombudsman institution would assist the new Albanian institution when the law was passed and the Ombudsman elected. He would also hope that Denmark could assist the Head of the Prosecution Service. Mr. Rakipi had requested international support and he ought to have it immediately, because he would have difficulties in handling the very politically sensitive case where 6 parliamentarians had been arrested and now are under house-arrest, and in the investigation of the Hajdari case. The prosecution service would also be in need of long-term assistance in developing systems to combat economic and organized crime.

I could tell the Ambassador that I already were informed that the Danish Ombudsman and the Danish Director of Prosecution would be willing to assist. I doubted nevertheless that it would be possible to respond positively to a request for immediate assistance in the politically sensitive cases mentioned.

16:00 Meeting with Mr. Scott Carlson, OSCE and ACCAPP.

Mr. Carlson explained in further detail the political situation regarding acceptance of the drafted constitution.

17:00 Meeting with Robert Pulver, OSCE, Legal Counsellor.

We discussed once again the idea of a think-tank and the possibilities of combating corruption in the judiciary. I also explained the idea of a pilot project. Mr. Pulver is very supportive.


Wednesday 28 October 1998

9:00 Meeting with the new Chancellor of the Cassation Court, Mr. Perikli Pulloshi.

We discussed the role of the Chancellor. Mr. Pulloshi explained that he is trying to define his own role, but that it is not quite easy to do so, as the law on the organisation of the Cassation Court is rather difficult to interpret. He was going the same day to have a meeting with the Presidency of the Court. He is very much aware of the importance of his office, not least his responsibility for the human resources in the staff.

10:00 Meeting with the chairman of the Association of Judges, Cassation Court Judge, Mr. Plloci.

We discussed the possibilities of Danish assistance for the re-vitalisation of the Association of Judges, which has been completely dormant in recent years. Mr. Plloci would certainly welcome support for a general meeting of magistrates and judges, where a new Board could be elected and the administration of the association fixed. He himself would not accept re-election. He felt there was a conflict of interest, since he was a member of the High Council of Justice as well as the Cassation Court. He felt he could not accept a further role when he somehow would be expected to take the party of a member of the association.

13:00 Meeting with Sandra Bloemenkamp, World Bank, Albanian Desk Officer.

As the World Bank is working on the establishment of an arbitration institution in Albania, it is needed to cooperate in order to avoid overlapping with the Danida-supported Foundation on mediation. It was agreed that we should continue to cooperate on this issue.

15:00 Participation in a meeting of "Friends of Albania" regarding the development of the judiciary.

The meeting was called by OSCE. The agenda is attached [...]. During the meeting I got the latest draft on People's Advocate (Ombudsman institution). The draft is attached [...]. I also got the Council of Europe's "action plan for judicial and legal system reform" [...] as well as OSCE's "Draft Summary of Judicial and Legal Assistance by Donors to Albania" [...].

Late Wednesday afternoon Counsellor Lis Jespersen arrived and during the rest of my Mission, I accompanied her on the meetings prepared for her.


4. Follow-up

Danida will arrange for a fact-finding mission on the support to Albania to take place in week 47. I will be present in Albania during the first part of this mission to assist as needed.






Organization for Security and Co-operation in Europe OSCE Presence in Albania


BY FAX: 3 pages total DATE: 28 October 98

TO:
Chairman of the Permanent Council-Vienna
Amb. Kobieracki

Ministry of Foreign Affairs, Warsaw—OSCE Office
Attn: Amb. Nowak

OSCE Secretariat—Vienna

CC: OSCE Embassies in Tirana; CoE, EU Delegation, ECMM, and WEU/MAPE Offices in Tirana; and OSCE Skopje.

From: Daan Everts, Ambassador Head of Presence


SUBJECT: ACCAPP BACKGROUND REPORT ON THE CONSTITUTION DRAFTING PROCESS

On 21 October 1998, the Albanian Parliament finalized a draft constitution for presentation in a national referendum on 22 November 1998. This final draft is the result of an intensive year-long drafting process that included international expertise (from the Venice Commission and bilateral donors) and broad public consultations. The goal of these national consultations was to create an open, transparent drafting process that provided opportunities for all interested parties to participate. The Constitutional Commission of the Albanian Parliament, the Ministry of Legislative Reform, and OSCE-sponsored Administrative Center for the Coordination of Assistance and Public Participation (ACCAPP) worked together with multiple international and domestic organizations to achieve this goal. The success of this effort led the Tri-Parliamentary Delegation in June 1998 to "[c]ommend the Commission for its broad-based consultations."

From December 1997 through September 1998, the Commission, the Ministry, and ACCAPP worked with other interested parties to implement a two-phase consultation plan. In brief, Phase I of the plan consisted of more than a dozen forums and symposia where constitutional issues were discussed and public input gathered. The results of these forums provided Commission Members and Technical Staff with a basic outline of the issues that the public considered important. While Phase I was in progress, the Commission began drafting a text, finishing an initial draft in June of 1998 and approving a revised text in its entirety on August 5th. Phase II was then initiated consisting of a broad-based review of the August 5th text by individuals and organizations within and outside of Albania. In both phases, foreign constitutional experts were consulted for an independent analysis of the technical substance of the draft. Domestically, the Constitutional Drafting Commission, ACCAPP, and international assistance providers organized a series of public hearings, designed to solicit public comments on the proposed draft, involving several hundred participants. A diverse cross section of Albanian experts, citizens, politicians, and NGOs attended these meetings, and ACCAPP collected suggestions and comments, which were submitted to the Commission for consideration.

ACCAPP indexed and organized all the comments to assist the Commission and Technical Staff in their process of review. Hundreds of suggested changes were considered, and more than 50 proposed changes affecting more than 45 articles were accepted. Altogether, the Commission amended approximately 25% of the draft text on the basis of specific suggestions from the public. On 30 September 1998, the Commission completed this process, approving the final text.

During the period 5-20 October, the Albanian Parliament conducted a review the text proposed by the Constitutional Commission. This review consisted of an intense mixture of committee review and plenary session debates. In terms of committees, each of the following reviewed the draft: Public Order and National Information Service; Industry, Public Affairs and Trade; Agriculture and Food; Foreign Affairs; Health and Environmental Protection; Economy, Finance and Privatisation; and Human Rights and Minorities. These review sessions were open, with journalists, local experts, and a Representative of the Venice Commission participating freely. At the close of the week of committee reviews, the Venice Commission representative stated unequivocally, "The draft Constitution is in full conformity with European democratic standards."

Throughout the final phase, the Democratic Party (DP) maintained its boycott of the constitution drafting process. The only moment where a change appeared possible was in August. At that time, the DP indicated a willingness to participate in a "roundtable" on the constitution without insisting that the roundtable substitute for the Constitutional Commission. However, the arrest of six former functionaries of the DP sparked the major opposition party to cancel the roundtable. Subsequent overtures from the diplomatic community, particularly the "Friends of Albania", failed to change the resolve of the DP.

Rejecting the successive assessments of the international community that the constitutional drafting process was "open and transparent," the DP maintained its public stand that it had been excluded. Throughout the process, the DP formulated various unrealistic conditions to their participation and then accused the Coalition Government of exclusion when their demands were not met. Initially, the DP rejected the very establishment of the Constitutional Commission, and later, it demanded a "blocking minority" together with changes in the chairmanship. While the international community has consistently called for an unconditional end to boycott tactics, the DP has never acknowledged this direct demand.

During the series of public hearings described above, DP participation was either low or nonexistent, and reports of boycott orders issued from DP Headquarters were received.

Multilateral condemnations of the non-participation strategy have been direct and unequivocal. Lastly, in the 23 September 1998 Joint Declaration of the OSCE, EU, CoE, and WEU, the international community stated that as an opposition party the DP "must show respect for the results of the 1997 elections and participate in constitutional and political institutions."

As the Referendum approaches, it is important to encourage high voter turnout. Public participation in the final approval, or disapproval, of the Constitution is as important as participation in its drafting. In that regard, there remains the possibility that the DP will not participate in the Referendum, reducing voter turnout and possibly hindering administration. While full DP participation could substantially improve administration, a boycott would not render successful administration of the Referendum impossible. The Ministry of Local Government and the Central Election Commission have already begun preparations, and these two organs are prepared to move forward with administration of the Referendum regardless. The OSCE Presence and ACCAPP will provide technical assistance where possible. Furthermore, the Referendum itself will be conducted in the presence of various teams of international observers organized under the auspices of ODIHR, along with additional observers from the Council of Europe.




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