Strengthening the judicial culture as a tool for the effective implementation of the justice reform and the role of the HIJ

Judicial culture refers to the set of values, beliefs, norms, and behaviours that characterize the judiciary within a given legal system or country. It includes common attitudes and practices among judges, court personnel and legal professionals regarding the administration of justice, decision-making processes, and the general functioning of the judicial system, as well as judicial practice and the legal education of members of the judiciary.[1]

According to Bell, the judicial culture of a country determines how the principle of judicial independence, among other things, is presented and understood in its institutional form.[2]According to him,

[A]s we try to put flesh on the bare bones of the principle of judicial independence, we must consider the kinds of institutions and operational principles which we expect. But at the moment at which we try to become more specific, we tend to diverge in the implementation of the principle. This is not to deny the principle, but to demonstrate that, judging what the principle means in a given country during a specific period requires attention to the historical and political context in which it operates. Current institutions are often justified by reference to the historical problems which they resolve. In addition, a comparison with the past provides evidence of the extent to which a country has progressed in achieving judicial independence.[3]

Saying this, Bell is suggesting that the concept of judicial independence is not a one-size-fits-all model; it is shaped by a country’s judicial culture, historical context, and political environment. When implementing the principle of judicial independence, each nation might have different institutions and operational approaches tailored to its unique circumstances.

 

He draws attention to the fact that although the principle itself may be widely accepted, its implementation and interpretation may across different countries and time periods. This divergence is an acknowledgment—rather than a rejection of the principle—that the historical and political environment of a given nation must be considered when defining judicial independence within that nation. Bell also suggests that the way in which current institutions operate is frequently shaped by the problems or difficulties of the past. Analysing past circumstances sheds light on how far a nation has come in attaining judicial independence and helps to understand how its legal system has developed.

 

For these reasons, a thorough examination of Albania’s need for justice reforms over time is crucial to understanding the evolution of its judicial system and the pursuit of judicial independence. The complexities of Albania’s legal system can be understood by exploring the historical background and the difficulties encountered when putting justice into practise. About building a strong and independent court that is suited to its unique historical and political environment, this analysis aids in outlining the steps taken thus far as well as the obstacles still to be addressed.

 

Numerous models have been tested in Albania over the past 30 years to determine the recipe that will ensure the country’s judicial independence, both de facto and de jure. Over time, the judicial system has experienced a shift in personnel, institutions, and areas of competence to accomplish this goal. The legal landscape has also changed accordingly. Nevertheless, it becomes evident that three prominent factors persistently emerge: diminished trust in judicial institutions, instances of corruption, and undue influence from the executive branch[4]. Consequently, reforms have generally been necessary to address these issues. [5]

 

Creating an independent and functional judiciary has proven to be a complex challenge for Albania.[6] This challenge took on greater proportions when it could potentially affect the opening of negotiations for Albania’s EU membership.[7] Under these circumstances, the 2016 justice reform became necessary.[8]

 

Under the model presented by the Law Reform, High Judicial Council (HLC), the High Prosecutorial Council (HPC) and the High Inspector of Justice (HIJ) were established.[9] Their purpose was prevent any interventions of the executive or the legislative in the judicial system. As such, the judicial councils became the responsible structures for the procedures of appointment, dismissal, and discipline, among others, of judges, prosecutors and members of the judicial system.[10] HIJ was established with the mandate to “verify complaints, investigate violations and initiate disciplinary proceedings” against several key parts of the judicial system[11], as an independent institution focused on issues of disciplining judges and prosecutors of all levels, members of the High Judicial Council, members of the High Prosecution Council and the General Prosecutor, is considered essential for guaranteeing the independence of the judiciary.[12] Prima facie, the fulfilment of these standards has been achieved in the current model of the judiciary.[13]

 

The subject of discussion in this study is to what extent the judicial system’s restructuring and the addition of new justice institutions have addressed or are addressing issues found in the previous legal system—corruption, malfunction, lack of integrity, professionalism, independence, efficiency, reliability, transparency, accountability, and responsibility of the system”.[14]

This discussion paper aims to highlight the significance of the element of judicial independence culture based on an analysis of the fulfilment of judicial independence standards in three periods: 1991-1998, 1998-2016, and 2016 onwards. The purpose of this analysis is to contribute to the debate that judicial autonomy does not always translate into judicial independence. [15] By evaluating earlier judicial models, the study’s findings will focus on both the merits and demerits, placing particular emphasis on the role of the High Inspector of Justice.

The purpose of this endeavour is to pinpoint improvements that will strengthen the judicial independence culture. Additionally, it will be examined and suggested how the High Inspector of Justice can support the improvement of this culture by making specific suggestions and taking steps that will help ensure that Albania’s legal system is more reliable and independent.

[1] D Preshova, Judicial Culture and the role of judges in developing the law in North Macedonia (2021); CEELI Institute, Manual on independence, impartiality and integrity of justice, a thematic compilation of international standards, policies and best practices (2022).

[2]J Bell, Judicial Cultures and Judicial Independence, Cambridge University Press, p 13. < https://www.cambridge.org/core/journals/cambridge-yearbook-of-european-legal-studies/article/judicial-cultures-and-judicial-independence/9120C4FB9357780489524062C07C610E>

[3]ibid, p. 60.

[4]A Hoxha et al, Monitoring the Implementation of the Reform in Justice (2019). See also the Ad Hoc Parliamentary Commission on Justice System Reform, Analysis of the Judicial System in Albania (2015), p 98. The Justice System Analysis conducted in 2015 by the Special Parliamentary Commission on Justice Reform emphasized that the system the judiciary in Albania, with the form of the existing institutional organization, was encountering numerous problems and “was not properly performing its mission to consolidate the rule of law”. Problems such as the public’s perception of the justice system as corrupt and influenceable in the delivery of justice, the weak position of the judicial power compared to the other two powers, as well as the failure of the system to hold corrupt prosecutors and judges accountable, were evidenced, among other things, in the analysis.

[5] I Topalli, Controlling the Constitutionality of the Law in Albania: A Comparative Approach, PhD (2015).

[6] In the European Commission’s Albania Progress Report 2015, Albania’s judicial system was considered at an early stage of preparation, noting that the administration of justice is slow and court decisions are not always implemented. Also, “The professional training of judges is insufficient and their independence is not fully ensured. There is insufficient accountability of judges and prosecutors and corruption within the justice system is widespread. Inter-institutional cooperation is weak and resources are insufficient.” On this basis, the EC recommended the adoption of a strategy for a new judicial reform. Albania Progress Report 2023, p 19. In 2023, Albania has reached a moderate level of preparation in the functioning of the judiciary. Evidenced gaps, and recommendations for improvement, have been identified by the EC in terms of improving the efficiency of courts and prosecution services, as well as reducing unprocessed files, filling vacancies, as well as strengthening the capacity and independence of the judiciary and institutions governing, among others.

[7] Progress Report Albania 2016, p 89. <https://neighbourhood-enlargement.ec.europa.eu/system/files/2018-12/20161109_report_albania.pdf>

[8] Special Parliamentary Committee on Justice System Reform, High Level Expert Group, p 2. <https://rm.coe.int/strategjia-ne-refomen-e-sistemit-te-drejtesise/16809eb53a> “The overall goal of the reform process is to create a reliable, fair, independent, professional and service-oriented, open, accountable and efficient justice system that enjoys public confidence, supports development stable socio-economic of the country and enable its integration into the European family.”

 [9]The package of justice reform laws. <https://klgj.al/ëp-content/uploads/2019/09/Paketa-e-Ligjeve-t%C3%AB-Reform%C3%ABs-n%C3%AB-Drejt%C3%ABsi-2018. pdf>

[10] In the Magna Carta of Judges, CCJE (Fundamental Principles 2010), the existence of the judicial councils is seen as necessary to ensure the independence of judges. It is foreseen that “the councils should be independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.”<https://rm.coe.int/168063e431>

[11]< https://ild.al/sq/zyra-e-inspektorit-te-larte-te-drejtesise/>

[12]According to the ECtHR, Resolution on Judicial Ethics (2008), the independence of the judiciary must be guaranteed in relation to judicial activities and in particular in relation to recruitment, appointment up to retirement age, promotions, retention, training, judicial immunity, discipline , remuneration and financing of the judiciary. This is considered the international standard of independence, provided for in the Bangalore Principles of Judicial Conduct <https://www.google.com/search?q=bangalore+rules&oq=bangalore+rules>.

[13] Please refer to table x.

[14]<https://www.reformanedrejtesi.al/pse-nje-reforme-ne-drejtesi>

[15]See more F Caka, E Merkuri, Judicial Culture and the role of judges in developing the law in Albania IDSCS (2023); T Marinkovic, Personal Guarantees of judicial independence and judicial culture in Serbia IDSCS (2022); D Preshova, Judicial Culture and Individual Independence of Judges in North Macedonia: independent judiciary with dependent judges IDCS (2022). Based on the findings of the studies, the prevailing judicial culture shows that judicial autonomy in Albania, Serbia and North Macedonia does not translate into judicial independence. Despite the existence of judicial councils in these three states, based on the interviews conducted, the authors have found that there is a widespread fear and mistrust among judges within the institutions.