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UPDATE: A Guide to Researching the Albanian Legal System

 

By Mbaresa Veleshnja Gentry
Update by Engjellushe (Angel) Kozeli Mozina

 

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).

 

Engjellushe (Angel) Kozeli Mozina practices law in Boston, Massachusetts. She is a graduate of Mount Holyoke College and Suffolk University Law School. She is a Board Director and Secretary of the Albanian American Law Society. She is also a member of the American Bar Association, the American Immigration Lawyers’ Association, and Steering Committee Member of the Boston Bar Association’s Immigration Law Section.

 

Published May 2013
See the Archive Version

 

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 lies along the eastern coastline of the Adriatic Sea in the western part of the Balkan Peninsula  in Southeastern Europe. 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 official language is Albanian (called Shqip by Albanians).  In Albanian, the name of the country is Shqiperia. The country’s current population is nearly 3.5 million.

 

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.

 

Albania declared its independence from the Ottoman Empire on November 28, 2012. The Conference of Ambassadors in London recognized the country and its independent government led by Ismail Qemali in December 1912.-

 

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

 

Albania’s 45-year-long communist regime was extreme, self-isolating and totalitarian.  The skeletal judiciary  was held hostage by the whimsical  will of the Chairman of the Communist Party, other Communist Party leaders and  executive powerbrokers.

 

The democratic elections ofMarch 22, 1992 brought into power the opposition Democratic Party which won in 90 of the 100 electoral districts.  The Democratic Party won the majority of votes  in the 1996 elections.  However, it lost early elections held in June 1998, after the collapse of widely popular  Ponzi pyramid schemes during 1997-1998 caused widespread unrest and brought the country to the brink of civil war. .  The former Communist Party rebranded as the present-day Socialist Party came back into power by the elections of 1998. .  These two major parties have traded majority electoral wins and party-led governments since. The next parliamentary elections are scheduled

 

Albania is transforming its former centralized economy into an open-market one  and  consolidating its democracy.  The near-term goal of Albania is to gain full membership into  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 held as the supreme law of the land  and was adopted by popular referendum on November 28, 1998.  The system of government is based on principles of  separation and check and balances of the legislative, executive and judicial powers.

The unicameral Parliament (Kuvendi) represents the legislative branch.  It consists of 140 seats, which are determined according to a  proportional regional system. [[1]] All Parliament members serve a four-year term. The internal structure of the Parliament is composed of the Speaker, Deputy Speakers, Bureau of Parliament, Parliamentary Groups, and Parliamentary Commissions. Upon a motion by one fourth of its members, the Parliament can create Special Commissions and Investigatory Commissions. [[2]] (See the website of Parliament: in Albanian, English and French.)

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 President is the head of state and is elected by a three-fifths majority vote of all Parliament members. The President serves for up to two  terms of five years. 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.  (See the website of the President’s office: in Albanian and English.)

The Prime Minister is appointed by the President and approved by the 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 the Parliament legal acts 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 the Parliament are superior to domestic  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;

·       Parliamentary 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 approval  by the 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.

 

See also (in vernacular):

The Online Library of Albanian Legal Acts

The Center of Official Publications (includes an index of official legal acts, legal acts, the Albanian Constitution, etc.)

The Judiciary System           

Albania’s current judicial system has been established over the course of the past two decades.  In November 1998, through a popular referendum, Albanians voted on and approved the Constitution of the Republic of Albania. A series of laws and judicial acts have been enacted since helping establish the current structural and operational framework of Albania’s judicial branch.[[3]]

 

Albania’s legal system is a civil law one. The Constitution has the highest legal authority followed by ratified international agreements, which prevail over domestic laws, and judicial acts issued by the executive branch. Lower court decisions and holdings do not confer or establish legal precedents. [[4]]

Judicial power in Albania is exercised through the courts of first instance, appeal courts and lastly, the Supreme Court, which has  final appellate authority.

The Constitutional Court

The Constitutional Court was created pursuant to Law  7561 dated April 29,1992.[[5]]  The October 2, 2000 Law no. 8577 “On The Organization and Operation of the Constitutional Court,”  drafted with the assistance of the Venice Commission “Democracy Through Law,” established the present-day functions of the Constitutional Court.[6 ]

 

The Constitutional Court is an independent body and separate from all branches of government. It is composed of nine members, appointed by the President of the Republic with the consent of the Parliament. They are appointed for nine-year terms and do not have the right to be reappointed.

 

The Constitutional Court interprets  the compatibility of international agreements with the mandates of the Constitution prior to their ratification; verifies compliance with the Constitution in legislative acts passed by local, regional and central government bodies; and adjudicates individual citizens’ claims of constitutional right violations.  

 

Judicial  review by the Constitutional Court may be requested by the President of the Republic, the Prime Minister, 1/5 of Parliament’s members, the Head of High State Control as well as any lower court. When constitutional issues arise during lower court proceedings, the Constitutional Court accepts interlocutory appeals to determine the constitutionality of that issue. The Court’s decisions are final and binding.

 

The Court’s  decisions, including dissenting opinions, are published in the Official Gazette reporter.

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 to of the courts of first instance and the courts of appeal, decides on the dismissal and/or transfer of judges from and to  the courts of first instance and the courts of appeal, , issues  disciplinary measures  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 issued on March 15, 2000.

It  is the highest court of appeal and operates as a cassation court over the decisions issued by the lower appellate courts.  It  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 Joint Panels of the Supreme Court issue the unification and amendment of court practices.

 

If an appeal is accepted after cassation review, it is heard by a by five-judge panel. 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, 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 in 1990 (Law no. 7382 “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, both dated 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, dated 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 Office

The Bailiff’s Service is   in charge of enforcing  civil judgments and penal fines.  The Bailiff’sService 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 on 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.



[[1]] See American Bar Association Rule of Law Initiative, Judicial Reform Index for Albania, Volume IV, December 2008, page 5.  Located online at http://www.americanbar.org/content/dam/aba/directories/roli/albania/albania_jri_iv_12_2008_en.authcheckdam.pdf. (Hereafter, ABA Report)

See also Xh. Zaganjori, A. Anastasi, E. Cani,  Rule of Law in the Constitution of the Republic of Albania,  Adelprint, Tirane, 2011 (Hereafter, “Rule of Law Report”), footnote 203. Located online at http://www.kas.de/wf/doc/kas_22897-1522-33-30.pdf

[[2]] See Rule of Law Report, page 114, footonote 211

[[3]] See American Bar Association Rule of Law Initiative, “Judicial Reform Index for Albania, Volume IV”, December 2008, (hereafter, “ABA Report”),  page 5, n1. This report is available online at http://www.americanbar.org/content/dam/aba/directories/roli/albania/albania_jri_iv_12_2008_en.authcheckdam.pdf.

[[4]] Id. at page 6.

[[5]]

[6 ] See Rule of Law Report at 159.