Albania: The Long Road

Tuesday, 2 August, 2005

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Altin Raxhimi

Not long after the fall of Albania’s communist regime, Avenir Ballvora, a kindergarten administrator from Tirana, decided he wanted to try his hand in the country’s newly emerging free-market economy.

He became the manager of a Kosovo Albanian construction company Qufaj and Co and in June 1992, he bought a 16,000-square metre parcel of land and secured a building permit from municipal authorities to erect some 500 apartment buildings.

But in 1993, as he was about to begin construction, his building permit was frozen, and eventually revoked - an action that put Ballvora out of business.

Convinced that the municipal authorities wrongly revoked his building permit, Ballvora took them to court in 1994, demanding 60 million lek (600,000 US dollars) in compensation.

Tirana’s district court dismissed the case so Ballvora appealed. The Appeals Court ruled in his favour, but was challenged by yet another court.

Ballvora tried to take his case to the Constitutional Court, but it refused to hear it, claiming it did not have jurisdiction over such matters.

Feeling lost in the bureaucratic morass that is Albania’s court system, Ballvora took his case to the European Court of Human Rights in Strasbourg.

Last November, after nine and a half years of fighting, the ECHR ruled in his favour and ordered Tirana’s City Hall to pay Qufaj and Co 700,000 euro (840,000 dollars) in compensation.

But Ballvora is still waiting for the money. And he has plenty of company.

Since the fall of communism, some 5,000 court rulings, more than half the total figure, have been all but ignored, according to Joaquin Tasso-Vilallonga, the European Commission’s representative on justice and home affairs in Tirana.

In 2002, 48 per cent of court decisions were unimplemented, and in 2003, the percentage rose to 52 per cent, giving Albania the worst record in Southeast Europe. In cases where the courts ordered the state to pay damages, the non-execution rate is 100 per cent.

“What the government will do about this case will be very [instructive for] us,” said Tasso-Vilallonga. However, he added that the poor execution rate of court orders is by no means the only pitfall in the Albanian judicial system.

He and several other European Union representatives who monitor Albania’s courts say that although Albania’s legal foundations are in place, many of the judges are poorly trained, the judiciary as a whole is deeply politicised and plagued by corruption and detention facilities are abysmal.

When Albania’s Stalinist regime collapsed in 1991, the government that emerged in its wake had to build a judicial system essentially from scratch.

Under the old system, prosecutors and investigators were permitted to use ruthless methods to illicit confessions from accused. And judges consisted only of the party faithful.

In an effort to build something akin to a judiciary, the government set up a six-month crash course in judicial affairs. Several hundred recruits passed through the course in 1992 and became judges.

Others were simply appointed judges based on connections they had in the new regime, and had no training whatsoever.

Appointed in haste, the majority of the new judges were vastly inexperienced, unqualified, and virtually ignorant of European legal standards. Others were indebted to those who got them their position.

To some extent, the judiciary is still suffering from inexperience and the need to pay back favours, according to Tasso-Vilallonga.

Among the most serious problems, according to Tasso-Vilallonga is the intrusive role played by the ministry of justice.

Albania’s judicial system is organised into district courts, an Appeals Court and a Supreme Court, with a total of 378 judges. All of the latter are subject to disciplinary action by the 15-member High Council of Justice, HCJ, of which the minister of justice, Fatmir Xhafaj, is a member - something Tasso-Vilallonga says is inappropriate.

Although the justice minister does not vote in cases where judges are being disciplined, international monitors say that the judges have the perception that the minister is the boss and may be reluctant to take any decisions that he disagrees with.

“Having the ministry of justice monitor the court decision…does not help [independence],” said Tasso-Vilallonga, pointing out that it effectively puts the judges at the mercy of the justice minister’s opinions.

In response to these charges, Aida Gugu, Xhafaj’s chef de cabinet, said, “The ministry is aware of such criticisms, but believes [the HCJ] functions properly because no case it has handled has been criticised for political bias.”

Further politicising the judiciary is the fact that the ministry of justice can initiate an investigation into any judicial decision that it disagrees with.

The ministry claims that it is only acting as a watchdog, and that judicial oversight is necessary.

“What can we do?” asked Arben Imami, a former justice minister and politician. “If we don’t monitor the judiciary, we risk allowing the judges to create a [cabal] that looks out for its self.”

The ministry justifies what international observers say is a heavy hand by pointing out that the Albanian system is modeled upon the Italian one, and EC monitors are not criticising the latter.

In the Italian model, however, inspectors from the justice ministry limit their oversight and do not intervene in judicial matters.

Imami, among others, insists oversight is necessary and that claims that the justice ministry is overly intrusive are exaggerated.

“The ministry has no real power over judicial decisions,” he said. “But it can cause annoyance.”

Such annoyance, Imami argues, is necessary to protect against persistent allegations of corruption. And he may have a point.

Judges and their administrative staff have low salaries, a situation that plagues all developing countries and creates fertile ground for corruption.

Fifty per cent of Albanians believed in 2001 and 2002 that judges were corrupt, and sixty-six per cent felt lawyers were too, according to a survey by the South-East European Law Development Initiative.

Among the business community, the percentage is even higher, according to Auron Pasha, director of the Institute for Development and Research Alternatives, a Tirana think tank. Pasha said two-thirds of the businessmen questioned by IDRA last September said unreliable court decisions hampered the business environment.

The perceptions are not without cause. Between 2002-2005, the HCJ sacked 13 judges. Eight others received warnings and three Appeal Court judges were relegated to lower courts for violations.

In one high-profile case in 2004, Jonila Kasoruho, a judge in the southern town of Gjirokaster, was caught on a hidden camera accepting a bribe by someone involved in a property dispute before her court. She was fired by the HCJ, and has now left Albania, said Kreshnik Spahiu, a former judge who now leads the Citizens Advocacy Office, a Tirana civic group.

Ilir Panda, a former justice minister who now serves as deputy chairman of the HCJ, acknowledged that corruption was a problem, but said he believed the public’s perception was exaggerated. “I believe there are corrupt judges, but the popular perception is much higher than it is really there,” said Panda.

Such perceptions of the judiciary may be fueled in part by problems in other sectors of Albania’s legal system. For example, in a country renowned for smuggling drugs, weapons and people, only between 12 – 15 cases of smuggling were investigated over the past two years, and nobody has been convicted, according to Tasso-Vilallonga.

But even if public perceptions of judicial corruption are exaggerated, allegations about irregularities prompted Olli Rehn, the EU Enlargement Commissioner, urged Albanian prime minister Fatos Nano to show “tangible achievements” in “fighting corruption and organised crime” in a speech made to the European parliament in April.

Another problem that undermines the legitimacy of the judicial system, according to Tasso-Vilallonga, is the dire state of Albania’s pre-detention facilities.

Albania has 12 such centres, eight of which are administered by the police and by the ministry of justice.

Those administered by the police are vastly overcrowded and lack sufficient lighting, heating and air circulation.

“They [the detainees] live in animal-like conditions,” said former justice minister Imami.

Those administered by the ministry are in better condition, but one facility in Vlora is also overcrowded. It has a capacity of 50, but a population of 80, a situation that irks Tasso-Vilallonga.

“We have given money to build detention centres in this country, but we have to see signs that the government itself is ready to commit to improving the prisons financially. We will not pay for everything,” he said.

Government officials acknowledged receiving funding to overhaul detention facilities, but said the process would take time. “Such improvements will take at least two years,” said Engjell Hysi, in charge of the prisons department at the ministry of justice. “ It will be done step by step.”

Given where it started in 1991, there is no doubt that Albania has made considerable progress in creating a functioning judiciary.

“We have the legal foundations in place, we have less positive remarks on implementing the law. We need political will, and administrative capabilities,” said Ilir Panda, the deputy chairman of the HCJ, a lawyer and a former minister of justice himself.

Still, it is going to take time to root out the problems that still plague the system and build public trust in the judiciary – something Tasso-Vilallonga says is vital.

“Where do you think the 1997 situation came from?” Tasso-Vilallonga asked, referring to the collapse of the pyramid schemes an the ensuing chaos. “People did not trust the institutions but were ready to take matters in their own hands.”

But in spite of the enormous challenges still facing the judiciary, Tasso-Vilallonga says he thinks Albania is on the right track.

“Albania is far, far away from European standards,” he said, “but I am optimistic.”

Altin Raxhimi is a producer for Tirana TV station TOP channel and a regular correspondent for Transition On Line, TOL.