Constitutional Court Rejects Part of Judicial Reform Legislation – Exit Explains

On April 18, the Center for Official Publications published the verdict of the Constitutional Court from April 10, 2017, in which it accepted part of the arguments of the National Society of Judges of the Republic of Albania (ShKGjRSh) and the Union of Judges of Albania (UGjSh) against the Law 96/2016 “The Status of Judges and Prosecutors in the Republic of Albania,” adopted by Parliament on October 6, 2016.

The law is part of the judicial reform package and provides the regulations for the judicial system, including the High Judicial Council (KLGj) and High Prosecutorial Council (KLP), which will take over the functions of the High Council of Justice (KLD). Neither the KLP nor the KLGj have been formed, in part due to the lack of qualified applicants.

The ShKGjRSh and UGjSh argued that parts of the law were anti-constitutional, and these arguments were adopted in part by the Constitutional Court. The main aspect of the Court’s verdict included:

Transitional period

Part of the new law regulated the transitional period, between the implementation of the law and the creation of the KLP and KLGj. The two organizations of judges argued that the articles regulating the transitional period were unconstitutional because they would create an “institutional vacuum,” in which the KLD could no longer be allowed nominate new judges or transfer them, while the KLGj would at the same still be unable to perform that function. The Constitutional Court agreed with this argument and has rejected these particular articles (160 and 173(1)) from the law.

Disciplinary action

Another complaint of the ShKGjRSh and UGjSh was about the possible motivations for disciplinary action based on criminal acts. Art. 104(ç) of the law specifies that disciplinary action can be undertaken if there is a final verdict in court that contains “facts […] such that because of their very nature the figure, authority, dignity has been seriously discredited and the faith of the public in the magistrate and the organs of justice has been seriously damaged, which constitute a criminal act.” This would even count if the magistrate “cannot be put on trial, the trial cannot start or cannot continue,” or even if he is “rehabilitated or has profited from forgiveness or amnesty.” The ShKGjRSh and UGjSh argued that this was unconstitutional, as the Constitution clearly specifies the reason for disciplinary action in art. 140. Again, the Constitutional Court agreed.

Also several other articles dealing with disciplinary action toward magistrates were rejected by the Constitutional Court on the same basis.

In short, the Constitutional Court decided to keep the full competences of the KLD until the moment the KLGj and KLP have been installed, and has limited the range of possible reasons for which disciplinary actions against magistrates can be undertaken in the future.