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A Guide to Researching the Albanian Legal System

 

By Mbaresa Veleshnja Gentry

 

Mbaresa Veleshnja Gentry holds a BA in Political Sciences from the University of Tirana, Albania (1977). From 1994 to the present she has been an independent publisher of legal indexes for Albania (in Albanian and English) and Kosovo (in Albanian, English and Serbian).  Other publications include Albania Law Reports (subscription basis) and Kosovo Law Reports (prepared under contract with ABA/CEELI, which distributes the Report widely in Kosovo).  Publications (books): Index of Legal Acts of Albania 1985 - 2002 (English and Albanian); Civil Code, Civil Procedure, Criminal, and Criminal Procedure Codes of Albania (in Albanian); Tax compilation (English and Albanian); Real estate compilation (Albanian); Loose Leaf System (limited to business legislation, in Albanian).

 

Published July 2005
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Table of Contents

Albania - General History

Albanian Body of Law

Legislative and Executive Bodies

Types of Legislation

Official Legal Publications

Unofficial Legal Publications

The Judiciary System

Constitutional Court

High Council of Justice

Supreme Court

Courts of Appeal

Courts of First Instance

Court of Felonies

Military Courts

Bar Association

Bailiff’s Office

Publication of Court Decisions

 

Albania - General History

Albania is located in the western part of the Balkan Peninsula on the Strait of Otranto, at the southern entrance to the Adriatic Sea. It is bounded to the northwest by Montenegro, to the northeast by Kosovo Region, to the east by Macedonia, and to the southeast and south by Greece.  The capital of Albania is Tirana.

 

The language is Albanian (called Shqip by Albanians).  In Albanian, the name of the country is Shqiperia.

 

Albania is Europe's only predominantly Muslim country - a legacy of nearly five centuries of Ottoman rule. At the end of World War II, about 70 percent of the population was Muslim, 20 percent Eastern Orthodox, and 10 percent Roman Catholic.

 

Albania has been free of religious conflicts, mainly because Albanians have traditionally displayed a high degree of religious tolerance.

 

Shortly after the defeat of Turkey by the Balkan allies, the conference of ambassadors in London in December 1912 decided to recognize the independent government of Ismail Qemali established on 28 November 1912.

 

During the Second War, Albania, under the leadership of the Communist Party, affiliated itself with the international antifascist coalition.  After the war, the Communist Party took over power and ruled Albania until 1991, which marked the end of the communist era in Albania.

 

During the communist era, Albania was an extreme, Stalinist regime under a heavy totalitarian rule. Its judiciary was subjugated to the will of the President of the Republic, Party leaders, and other executive authorities.

 

The democratic elections of 22 March 1992 brought into power the opposition Democratic Party.  The elections were for the 140 seats in the unicameral People's Assembly.   The opposition Democratic Party did better than expected, winning in 90 of the 100 electoral zones.  The Democratic Party continued its dominance in the 1996 elections.  However, the Democratic Party lost early elections held in June 1998, after the collapse of the pyramid schemes where Albanian people lost significant amounts of money and caused unrest during 1997-1998.  The Socialist Party came into power by the elections of 1998 and remains in power today. 

 

Albania is transforming its economy into a market-oriented system and improving its democracy.  The near-term goal of Albania is to join the European Union. 

Albanian Body of Law

Legislative and Executive Bodies

Albania is a Parliamentary Republic.  Sovereignty in the Republic of Albania belongs to the people.  The Constitution is the highest law in the Republic of Albania, and was adopted by popular referendum on November 28, 1998.  The system of government is based on the separation and balancing of the legislative, executive and judicial powers.

The unicameral Parliament (Kuvendi) represents the legislative branch. The executive branch is represented by the President as the Chief of State, Prime Minister as the Head of Government, and the Council of Ministers.  The judicial branch is composed of the Constitutional Court, the Supreme Court and multiple Appeal Courts and District Courts.

The unicameral Parliament (Kuvendi) consists of 140 seats, 100 of which are determined by direct popular vote. The remaining 40 seats are distributed by proportional representation.  All Parliament members serve a four-year term. The internal structure of Parliament is composed of the Speaker, Deputy Speakers, Bureau of Parliament, Parliamentary Groups, and Parliamentary Commissions. (See the website of Parliament: in Albanian, English and French.)

The President is the head of state and is elected by a three-fifths majority vote of all Parliament members. The President serves a term of five years with the right to one re-election. Although the position is largely ceremonial, the Constitution does give the President authority to appoint and dismiss from office some civil servants in the executive and judicial branches and to issue decrees.  The current President's term expires on July 23, 2007. (See the website of the President’s office: in Albanian and English.)

The Prime Minister is appointed by the President and approved by Parliament. The Prime Minister serves as the Chairman of the Council of Ministers, which consists of the Prime Minister, Deputy Prime Minister, and 18 ministers. Members of the Council of Ministers are nominated by the Prime Minister and approved by the President.  The Council of Ministers introduces to Parliament draft laws necessary for implementing the Constitution, and issues decisions, instructions, regulations and orders to implement the body of laws approved by Parliament. (See the website of the Council of Ministers: in Albanian and English.)

Types of Legislation

All legal acts must be in compliance with the Constitution.  International treaties and conventions ratified by Parliament prevail in case of inconsistency with Albanian legislation.

 

Legal acts, according to the type of act, are issued and approved by the respective organizations as follows:

·       Laws are proposed by the Council of Ministers, approved by Parliament of the Republic of Albania and proclaimed by the President of the Republic;

·       Parliament decisions are issued by Parliament;

·       Decrees are issued by the President of the Republic;

·       Normative acts, decisions, instructions, regulations and orders are issued by the Council of Ministers;

·       Instructions, regulations and orders are issued by each Ministry; and

·       Court Decisions are issued by the Constitutional Court and the Supreme Court.

 

A law, after approved by Parliament, is promulgated by the President of the Republic, and enters into force 15 days after its publication in the Official Gazette. 

Official Legal Publications

Prior to 1999, the Official Gazette (called Fletorje Zyrtare in Albanian) was published by a section within Parliament.  Laws issued by Parliament were all published in the Official Gazette, but, especially during 1992-1997, many sub-legal acts issued by the Council of Ministers and Ministries or other state central institutions were not.  With the intention of fixing this problem, Parliament issued law no. 8502, date 30.6.1999 “On establishing the Official Publication Centre”, under the supervision of the Ministry of Justice.  According to this law, “the Centre is required to publish: laws, decrees issued by the President of the Republic, normative acts of the Council of Ministers, ministries, other central institutions, decisions of the Constitutional Court along with dissents, unifying or altering decisions of judicial practice of the Supreme Court, and any other act issued by other state institutions, publication of which is required by law.”  The Centre, in addition to the Official Gazette, publishes also compilations of legislation based on subject areas, such as procurement legislation and civil service legislation, updated Codes of Albania (Civil Code, Civil Procedure Code, Criminal Code, Criminal Procedure Code, Family Code, Road Code, Administration Procedures Code, Military Code and Electoral Code) and the Constitution.  All publications are only in Albanian.  In early 2005, the Official Publication Centre launched a website to make information more widely available.

Unofficial Legal Publications and Databases

After 1991, several companies were created for the purpose of publishing in electronic form Albanian Legislation.  The most popular electronic version of legislation (in Albanian) is the Jurist Program (Programi i Juristit), which is distributed on a CD and updated every three months.

 

The Library of Parliament also produces and makes available to Parliament members an index of legislation.

 

In 1994, an Index of Albanian Legislation, both in Albanian and English, showing implementation, amendments, references and classification based on subject areas, was established.  This Index in the Albanian language is published several times annually and distributed to Courts and Government Agencies with the help of several donor organizations operating in Albania.  The English version of this Index is distributed on a subscription basis by the producer.

The Judiciary System

The Constitutional Court

The Constitutional Court was created on the basis of the Constitution and law no. 8577, date 10.2.2000 “On organization and operation of the Constitutional Court” establishes the organization and operation of the Constitutional Court.

 

The Constitutional Court is composed of nine members, appointed by the President of the Republic with the consent of Parliament. They are appointed for nine-year terms and do not have the right to be re-appointed.

 

The Constitutional Court reviews the compatibility of laws and normative acts of central and local bodies with the Constitution or international agreements, which, after ratified by Parliament, prevail over Albanian law.

 

The review by the Constitutional Court may be initiated by the President of the Republic, Prime Minister, 1/5 of Parliament members, and the Head of the High State Control.  Constitutional Court decisions constitute a binding precedent for other courts of the judicial system.

 

According to the Constitution, the Constitutional Court decisions are final, cannot be appealed, and are obligatory to be implemented.  All Constitutional Court decisions are published in the Official Gazette, along with dissents.

The High Council of Justice (in Albanian and English). 

The High Council of Justice is composed of 15 members- the President of the Republic, who chairs the High Council of Justice, the Chief Justice of the Supreme Court, the Minister of Justice, three members elected by the Assembly, and nine judges from any level in the court system who are elected by the National Judicial Conference.

 

The High Council of Justice proposes to the President of the Republic the appointment of judges of the courts of first instance and the courts of appeal, decides on the dismissal of judges of the courts of first instance and the courts of appeal, decides on the transfer of judges, decides on the disciplinary measures taken against judges, and appoints and dismisses the Chiefs and the Deputy Chiefs of the courts of first instance and the courts of appeal.

The Supreme Court (in Albanian and English)

The Supreme Court is organized and operates in compliance with law no. 8588, date 15.3.2000 “On the organization and operation of the Supreme Court of the Republic of Albania.”

 

The Supreme Court is the highest court of appeal and is composed of 17 judges appointed for a nine-year term by the President with the consent of Parliament.

 

The Supreme Court is organized in civil and criminal panels. The criminal panel tries military and criminal cases and the civil panel tries commercial, administrative, family, labor cases and the like.  The Chief Judge of the Supreme Court, after taking the opinion of the judges, can move cases from one panel to the other.

 

The Supreme Court panels try cases on a bench of five judges.  The Joint Panels of the Supreme Court issue the unification and amendment of court practices.

 

Decisions of the Supreme Court are proclaimed, along with the reasoning behind the decision, no later than 30 days from the date of the termination of the judicial examination. Decisions of the Joint Panels, along with their reasoning, are published in the Periodical Bulletin of the Supreme Court. Decisions that serve the unification or amendment of the court practice are published immediately in the next issue of the Official Gazette.

Courts of Appeal

Courts of Appeal sit in six different regions of the country and review complaints against decisions of Courts of First Instance.  These courts sit in three judge panels.

 

The Courts of Appeal function in regions defined by the President of the Republic, based on a proposal of the Minister of Justice after consulting the High Council of Justice.

 

The assignment of cases to judicial panels at all levels of the judicial system is done by lottery according to procedures provided by law.

 

To be appointed a judge in the Courts of Appeal, one must possess full legal competence, hold a law degree, have no criminal record, have a "good reputation," and be at least twenty-five years old.

 

Judges of the Courts of Appeal are nominated by the High Council of Justice and appointed by the President of the Republic.  Persons may be nominated if they have worked for not less than five years as judges in the Courts of First Instance and have demonstrated "high ethical, moral and professional standards in the exercise of their duties."  Judges of the Court of Appeals continue in that role until they resign, are removed from office, or reach the age of sixty-five.

Courts of First Instance

The Courts of First Instance try according to rules provided in the Codes of Civil Procedure and Criminal Procedure, where the composition of the judges’ panel is also defined.

 

Courts of First Instance are organized and function in thirty-six judicial districts throughout the country.  The territorial jurisdiction of each one is defined by a Decree of the President of the Republic, based on a proposal from the Minister of Justice after consulting the opinion of the High Council of Justice. 

 

There are no jury trials under the Albanian system of justice.  A panel of three judges renders court verdicts.

 

To be appointed a judge in a Court of First Instance, one must possess full legal competence, hold a law degree, and have no criminal record, have a "good reputation," and be at least twenty-five years old.

Courts of Felonies

Legal provisions applied for organizing judicial power and the High Council of Justice apply also for organizing and operating Courts of Felonies and Appeal Courts of Felonies, except when otherwise provided by the law on Courts of Felonies.

 

Courts of Felonies and Courts of Appeal of Felonies are part of the judicial system and try felonies, as defined by law, in Courts of the First and Second Instance.

 

The President of the Republic, based on a proposal of the Minister of Justice after consulting with the High Council of Justice, establishes the number of Courts of Felonies and Appeal Courts of Felonies and their territorial jurisdiction.

 

Courts of Felonies are composed of the Chief Judge, Deputy Chief Judge and judges, appointed for a nine-year term. 

 

The Courts of Felonies and the Appeal Courts of Felonies try cases using panels of five judges.

Military Courts

Military Courts are organized and function within the judicial system according to powers defined in law. Military Courts are composed of Courts of First Instance and a Court of Appeal.  Military Courts try military cases.

 

The military Court of Appeal reviews in the second level complaints filed against decisions of the Military Courts of First Instance. The Military Courts try cases using panels of three judges.

Bar Association

The Bar was established on the basis of a 1990 reform (Law no. 7382, date 8.5.1990 For the Advocacy in the People's Socialist Republic of Albania, and amendment of article 9, 10 and 14 of the Code of Penal Procedure, by law no. 7387, date 8.5.1990).  Before the establishment of the Bar, defendants (and others in need of legal counseling) were assisted by legally trained officials ("advisers"), as established by Decree no. 4277, date 20.7.1967.  Authorities of such advisers did not extend to the investigation phase.
 
The primary purpose of legal advocacy is to assist defendants during the investigation and the trial, and to serve as counsel in civil and administrative cases. Participation of an advocate is compulsory if the defendant is a minor or is incapable of defending himself because of physical or mental disabilities.
 
The Bar consists of collegiums of advocates.  Membership is restricted to persons with a law degree and who have at least three years experience as lawyers.  The Minister of Justice may grant exceptions from these requirements.
 
Advocates do not have a monopoly on the presentation of cases in court.  Individual citizens remain free to present their own case in court.

Bailiff’s Service

The Bailiff Service is organized for enforcing executive orders in cases established by the Civil Procedure Code.  The Bailiff Service exercises its functions through judicial bailiff officers, who, in the course of their duty, represent the state.

Publication of Court Decisions

Decisions of the Constitutional Court are final.  They must be published in the Official Gazette and come into force the day of publication.  When a decision deals with protection of constitutional rights of individuals, the Constitutional Court may decide such decisions to come into force the day of its proclamation.  The Official Publication Center is required to publish decisions of the Constitutional Court not later than 15 days from their delivery to the Center.  The Constitutional Court prepares a compilation of its decisions at the end of the year.

 

Decisions of the Supreme Court, including an explanation of its reasoning, are proclaimed not later than 30 days from the date of termination of the judicial examination.  Decisions of the Joint Panels, along with their reasoning, shall be published in the Periodical Bulletin of the Supreme Court.  Decisions that serve to unify or alter court practices are published immediately in the next issue of the Official Gazette.