Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Albania
REPLY ON THE QUESTIONNAIRE ON
“The role of judges in striking a balance between protecting the public interest and human rights in the context of the fight against terrorism”, submitted by the delegation of Albania
A.1. The initial training schemes run for judges on international and European law, in both basic and specialist areas of knowledge. Ten judges are provided with initial training in such areas during the academic year.
The academic program on “Human Rights” contains an important part of the initial training of judges. The Instruments to achieve the objectives of this program are mainly: Theoretical lectures; organisation of work-shops, which include the presentation and interpretation of cases by judges; eventual visits to the European Court of Human Rights.
Subjects on Human Rights dealt with over the last year are as follows:
The Council of Europe and the European Convention on Human
(General Secretary of the Council of Europe, Committee of Ministers, Parliamentary Assembly, Court)
Rights Relations between international and domestic law. Constitutional solution. Judge’s role in application of the supranational norms.
Basic principles of the international law on Human Rights
The European system on the protection of human rights and fundamental freedoms. Problems and solutions. The mechanisms offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Interpretation techniques of European Convention on Human Rights by the European Court of Human Rights.
The right to life - article 2 of the Convention and its 6th Protocol.
Freedom from torture and inhuman or degrading treatment or punishment - article 3 of the Convention and the European Convention on the prevention of torture.
Freedom from slavery, servitude and forced or compulsory labour - article 4 of the Convention.
The right to liberty and security of the person - article 5 of the Convention.
The right to a fair trial; freedom from retroactive criminal offences and punishment; the right to an effective national remedy - articles 6, 7 & 13 of the Convention.
The right to respect for private and family life, home and correspondence The right to marry and to found a family - articles 8 & 12 of the Convention.
The freedom of thought, conscience and religion; the right to believe - article 9 of the Convention.
Freedom of expression; freedom of peaceful assembly and association - articles 10 & 11 of the Convention.
The right to property ; peaceful enjoyment of possessions; deprivation of property; the right to education; the right to free elections – articles 1, 2 &3 of the First Protocol of the Convention.
Derogation in time of war or other public emergency; other restrictions upon the rights protected - articles 15 & 16-18 of the Convention.
The European Court of Human Rights
Other systems of the protection of Human Rights.
The relevant judgements of the European Court of Human Rights are taken into consideration in the initial training of judges.
The European Union law
General principles of Community law
- The World Trade Organisation Market Economy and Market Regulation Private international law
Establishing Act of EU
Subjects of EU. Active and passive legitimacy.
Citizenship of the Union
Appropriate short-term courses on international and European law are included in the scheme of Magistrates School of Albania to provide judges in-service training. The number of judges who are trained periodically is about forty. There are 360 judges in Albania, including judges of the High Court.
Based on the amendments made in the law no.8136, dated July 31, 1996 of the Magistrates School, it is now required that all judges and prosecutors in district and appellate courts are provided with in-service training.
On the other hand, all judges periodically receive information on case-law of the European Court of Human Rights through a legal bulletin called “Human Rights in Europe”. This bulletin is funded by the European Commission and the Council of Europe and is executed by the AIRE Centre in London and European Centre in Tirana. So, it’s still necessary for them to perform their own research in these matters.
A.3. Judges can attend privately foreign language courses. There are not free of charge or state-subsidised courses.
Only one or two courts have legal translation facilities.
B.1. Study visits to EU countries are used to enhance dialogue between the national courts and the European courts. Such visits to the European Court of Human Rights in Strasbourg and different national courts in France, Germany, Italy, Portugal and Switzerland were included in the initial training schemes run for judges on international and European law over the last year.
B.2. Albania doesn’t hold events yet bringing together the national courts and the European courts?
C.1. The European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights, which is considered practically an integral part of it, enjoy a superior rank in the Albanian hierarchy of law in particular in relation to Albanian ordinary legislation and EU and international treaties. On the other hand, Albanian constitutional provisions on human rights evoke ECHR wherever restrictions by law on those rights are mentioned. Therefore, ECHR and the case-law of the European Court of Human Rights enjoy an equal rank in relation to Albanian constitutional provisions.
Whereas EU treaties and the case-law of the Court of Justice of the European Communities and international treaties as well are inferior in the Albanian hierarchy of law in relation to Albanian constitutional provisions, though they enjoy a superior rank in relation to Albanian ordinary legislation.
So, on one hand, under article 116 of the Constitution of Albania, normative acts that are effective in the entire territory of the Republic of Albania are:
a. The Constitution;
b. Ratified international agreements;
c. The laws;
ç. Normative acts of the Council of Ministers.
On the other hand, under article 17 of the Constitution of Albania, limitations of the rights and freedoms provided for in this Constitution may be established only by law, in the public interest or for the protection of the rights of others. A limitation shall be in proportion to the situation that has dictated it.
These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.
C.2. The case- law of the High Court of Albania recognizes the value of the Council of Europe recommendations and resolutions for interpretation purposes.
C.3. If the European Court of Human Rights hold that certain provisions of Albanian legislation violate the ECHR, the courts of Albania are permitted not to apply those provisions.
Apart from execution of the European Court of Human Rights judgments by the government, Albanian courts have authority to prescribe their own measures implementing the European Court of Human Rights decision, wherever there is a claim based on the relevant obligations derived from it.
Nevertheless, there is not yet such a case to be considered by the courts of Albania.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, a direct application for reopening of the proceedings and lodging of a claim for compensation are available in Albania, before a possible application to the Court in Strasbourg. Under article 131/f of the Constitution of Albania, the Constitution Court decides on the final adjudication of the complaints of individuals for the violation of their constitutional rights to due process of law, after all legal remedies for the protection of those rights have been exhausted.
D.1. Albania has incorporated in its legislation the Council of Europe recommendations and resolutions aimed at combating terrorism while seeking to uphold human rights. Special measures are taken to distribute and publicise these instruments.
D.2. Albania has adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists.
Based on the obligations which derives from the EC Conventions
“On the prevention of terrorism”, “On laundering, …and financing of terrorism” and the UN Convention “On the suppression of the nuclear terrorism acts”, a law is issued to amend the Criminal Code, providing the universal jurisdiction of the Albanian criminal law concerning the offences related to terrorism and a re-definition of the concept of terrorist organization and the terrorist-oriented acts.
It has been foreseen to classify as criminal offences, actions which were not previously provided for, such as recruitment, exercise, fund collection exercise for the use of explosives and other dangerous elements, the inducement and threat for launching terrorist attacks.
In addition, it is issued a new law on the protection, compensation and support of the victims of the terrorism.
The provisions of the law no. 9284 dated 30 September 30, 2004, “On preventing and striking at organized crime” are applicable to persons as to whom there exists a reasonable suspicion, based among others on evidence, of participation in terrorist organizations or armed bands, according to the provisions of certain articles of the Criminal Code and the commission of crimes by them for terrorist purposes, contemplated in the special part, chapter VII, of the Criminal Code;
Investigations are performed about the financial means, assets, economic activities, manner of living, and sources of income of the persons to whom there exists a reasonable suspicion as above mentioned.
An appeal can be taken to the court of appeals against the decision of the court for the sequestration of assets or the confiscation of sequestered assets according to the time periods and conditions of an adjudication contemplated in the Code of Civil Procedure. The appeal does not suspend the implementation of the decision.
An appeal to the High Court may be taken against the decision of the court of appeals within 30 days from the date the decision is rendered.
The law “On the protection of witnesses and collaborators of justice” was approved, providing for data, testimony and decisive evidence, especially in cases of organized crime, from witnesses and other individuals sentenced or under investigation, through cooperation and special protection for them in exchange for these contributions.
Unlike an ordinary criminal proceeding, the new law, through administrative and civil procedures, among other things obliges the owner of assets to prove and justify the provenance of particular financial assets, as well as the fact that these assets are not connected with or controlled by persons suspected of being members of organized crime. This makes it what is known as a reversal of the burden of proof also for persons suspected of being incriminated and, in particular, included in the activities of organized crime.
The role of Albanian judges in the proceedings in this type of cases seems to be the same. So, judge’s role in such case is not different from his or her role in ordinary proceedings.
So, amendments in the Code of Criminal Procedure, which were made by the law no.9276, dated September 16, 2004, avoid the serious deficiencies of this legislation as to the procedures and the breadth of the criminal offenses where Albanian authorities of the criminal proceeding, the Judicial Police and the prosecutor’s office, may apply special investigative means, but don’t change the position and the role of Albanian judges in the proceedings in this types of cases.
D.3. Referring to the law no. 9258 Date 15.07.2004 “On measures for the suppression of terrorism financing”, which provides measures to suppress terrorism financing, as well as procedures and control for the implementation of these measures, we can touch on another question.
This law is implemented in relation to designated persons for terrorist acts and terrorist financing committed within or out of the territory of the Republic of Albania.
The interested person may file a special compliant with the court against the Minister of Finance’s order to freeze funds and other assets.
The Court examines the case within 10 days, implementing provisions for administrative cases. In any case, the complaint does not suspend immediate execution of the Minister of Finance’s order.
Interested persons and third parties who claim to act in good faith may ask for their rights over seized funds and other assets by challenging the decision at Tirana District Court, no later than 30 days after becoming aware of the act of seizing. In any case, the claim does not suspend instant execution of the decision and the other measures taken in its application.
High Court of Albania emphasized the importance of reconciling the demands of security and of the protection of human rights in hearing of cases where a suspicion about terrorism exists. Wherever the question about such a reconciliation is raised, the courts of Albania have to be based on the Constitution solution, which in such situations evokes the European Convention on Human Rights and the case-law of the European Court of Human Rights,