|Fighting Corruption in the Judiciary: A Battle without Clear Winners|
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The corruption in the judiciary; its spread, forms and the factors that help it.
Corruption is very harmful for the stability of all democratic institutions. It endangers the essential rights and liberties of the citizens. It also deprives the citizens from the very important principle of the equality of the choices. The corruption endangers every effort for development. In this way the corruption endangers the democracy itself. The corruption in the judiciary is extremely dangerous. The judges are the public authority to whom has been given the sacred duty of the solution in a definite way of the conflicts that have to do with the violation of a right or interest protected by the law. It removes the last possibility to guarantee the rights and liberties of citizens. Unfortunately the corruption in the Albanian judges is widespread.1
There are different forms of corruption; economic, political and moral.2 The pressure of the judges to the citizens to solve their problems in exchange for money, gifts and favours is very high. Especially the corruption in change of favours is widespread. The strong family ties, and bonds of friendship; favour nepotism and cronyism. Unfortunately this forms of corruption are more tolerated in the Albanian society.
The causes that affect this wide spread of corruption are many. Mainly we can mention general factors like: lack of stability, the will to get rich soon, the low incomes, the interference of the public duties with the private interests, lack of strict control and the moral crisis caused by the transition.
Specific factors for the judiciary are many.
The independence of the judges "de jure" is ensured in a satisfactory level. "De facto", as a result of the deep politization and the polarisation of the Albanian society, independence of the judges is not at the required level.
Legal education is basic for the foundation of the "rule of law" state by preparing future law professionist. Our legal education is at a low level. Personal favouritism is widespread. The teaching methodology is obsolete. It relies heavily on memorisation.This must change. Independent thinking must be encouraged.
Most of the professors are young, and inexperienced. They are also underpaid.
The insecurity of lives of the judges is high. In courts the security is acceptable. But after work, the authorities do not offer special protection to judges. This protection is needed because Albanians are very vindicative people. After the 1997 crisis3, hundreds of thousands of light weapons are in the hands of the civil population.
Their indemnity is not satisfactory.
Professionalism of the judges is not high, especially for the above mentioned reasons. The best professionists in the field of law have gave up from the judicial and law teaching carrier.
The fact that many judicial decisions are not enforced4, especially for the civil cases, is an important factor that affect the decrease of the credibility and the increase of the corruption.
The attendance of the judicial sessions from the public is almost impossible due to the underdeveloped infrastructure. Most courthouses are in a deplorable condition. As a result the transparency, which is a very important factor in the decrease of the corruption, is increased.
In my personal experience as an lawyer's aide, I think that corruption is spread especially in the Tirana Court of Appeals. The danger is greater because this court, according to Albanian legislation, gives the last decision. For instance, in the judicial administrative case, "Teknoprojekt constructions l.t.d. vs. The Ministry of Public Works, Construction Police Tirana, the decision was clearly contrary to the law.The facts5
In these circumstances the plaintiff sued the defendants in the Tirana District Court.
It asked for the recognition of the absolute nullity of the acts issued by the defendants.
The Tirana District Court decided that the acts were issued according to the law. It the
decided the lapse of the complaint.The plaintiff appealed in the Tirana Court of Appeals.The
Tirana Court of Appeals decided the lapse of the decision of the Tirana District Court, for this
The decision of the Tirana Court of Appeals is contrary to the law for this reasons:13
All this may let think that there are two hypothesis on this case. The Tirana Court of Appeals deliberately gave this decision; so it is corrupted. The judges14 are totally incompetent; so they can not be part of this court which is in the elite of Albanian judicial institutions.
What should be done for the reduction of the corruption?
Legal and institutional measures that should be taken.
To put corruption under control it requires a maximal engagement from the public authorities and from the civil society for the drafting of the programmes and the implementation of the measures for a maximal reduction of the above mentioned factors. The Albanian legislation should be improved in this direction. Albania has signed and ratified a number of international conventions and agreements for the fight against corruption. The immediate implementation of these conventions and agreements is crucial to fight corruption.
The Albanian Criminal Law must be amended. The criminalization of illicit enrichment15 will help to fight corruption. This will offer a remedy for the loses of public funds.
The Albanian Civil Law must be amended too. The Civil Law must offer effective remedies for persons who have suffered damages as a result of corruption and try to compensate material damage, loss of profits and non ĂÂpecuniary loss.16
The Albanian Administrative Law must assure greater openness, to all procedures and documents. The need for the application of administrative sanctions is very important. The discretion of the administration needs to be held under control.
There is urgent need to adopt codes of conduct, esp. to deal with conflicts of interest. The improvement of legislation will be useless if the laws will not be properly enforced by the judiciary and the government, and the citizens will not know and fulfil their rights and duties.
To help this, our government has created a special agency, the Anti-Corruption Monitoring Group.
This institution must monitor and coordinate the actions of other public institutions. But it must not intervene in the work of the judiciary. The composition of this institution allows its members to act as "whistleblowers".
An independent and specialised agency in anticorruption is very needful, especially in this period of transition. The Anti ĂÂ Corruption Monitoring Group cannot replace it.
With the approval of the of the Constitution (1998), the Supreme Justice Council, the only organism that make decisions for the transfer and the disciplinary measures of the judges, went through a deep reformation process. In the meantime the majority of its members are judges of all ranks.
For evaluating the professionalism as well as for taking in consideration the complaints for particular judges, it has been created the Office of the Judicial Inspectorate.17
The role of the civil society
Despite the measures taken by the public authorities and the help given by the International organisations, all the efforts in the fight against corruption will be insufficient if the Albanian civil society does not engage maximally in the fight against corruption. Fortunately, the Albanian civil society has understood this important role. A specific step in this direction has been made with the creation of the Albanian Coalition Against Corruption, which I am proud to be member of.
The Albanian Coalition Against Corruption, is a coalition of the civil society organizations, media and the private sector.
General objectives18 of the Coalition are:
The fight against corruption in the judiciary is a battle without clear winners. But it must be won to clear the road towards the rule of law and prosperity.