TWINNING PROJECT FICHE
CARDS 2005
1. Basic Information
1.1 Twinning Number: AL 05 IB JLS 01
1.2 Title: Support to the General Prosecutor's Office to Undertake Inspection & Evaluation of Prosecutors.
1.3 Sector: Justice and Home Affairs
Sub-sector: Judicial Reform/Criminal Justice
1.4 Location: Prosecutor General's Office, Tirana (Albania)
1.5 Duration: 18 months.
2. Objectives
2.1 Overall Objective:
The overall objective is to provide support to the General Prosecutor's Office to undertake inspections and evaluations of prosecutors.
2.2 Project Purpose:
Enhanced operational capacity of the general Prosecutor's Office to carry out inspections and evaluations of prosecutors all over Albania, resulting in a more efficient and transparent judiciary and in the decrease of corruption within the judicial system.
2.3 Accession Partnership and NPAA priority:
The stabilisation and association agreement was signed between Albania and the EU on 12th June 2006. Article 78 of the agreement places importance on the consolidation of the rule of law and the reinforcement of institutions at all levels in administration and law enforcement and administration of justice in particular. It stresses that co-operation should notably aim at improving the functioning of the police and other law enforcement bodies, providing adequate training and fighting corruption and Organised Crime. Other articles highlight the need for cooperation on organised crime and other illegal activities, with Article 85 specifically referring to the need for the promotion of regional cooperation and compliance with recognised international standards in combating organised crime.
European Union - Enlargement Strategy and Main Challenges 2006 – 2007
Regarding the fight against money laundering, the Financial Intelligence Unit (FIU) and the prosecutor’s office have been reinforced and international cooperation improved, but both need to be further strengthened and the legislative framework needs to be further developed.
The European Commission’s European Partnership document of 30th January 2006 sets out the following relevant priorities:-
Judicial system
Short Term Priorities:-
- Establish a transparent and merit-based system for the evaluation of prosecutors.
- Improve coordination between prosecutors and police.
- Achieve a continuous increase in the rate of execution of court rulings.
- Strengthen the institutional capacity to investigate and prosecute corruption.
- Ensure that all law enforcement bodies are fully aware of their human rights obligations, and that they implement them in accordance with international conventions ratified by Albania, in particular the European Convention on Human Rights.
- Address cases of ill-treatment by law enforcement bodies through appropriate prosecution of perpetrators.
- Conclude and implement agreements with neighbouring countries and ensure their effective implementation, notably on trade, cross border cooperation, the fight against organised crime, trafficking and smuggling, judicial cooperation, border management, readmission, environment, transport and energy.
- Define more precisely the respective responsibilities of the various state bodies involved in the fight against organised crime and terrorism, and take measures to enhance cooperation, in particular between the judicial authorities and the police.
Medium Term Priorities:-
- Ensure prosecution of serious crimes, especially organised crime, with particular attention to cross-border cooperation mechanisms.
- Ensure continued and appropriate training of judges and prosecutors, including in human rights, ethics and commercial matters and SAA-related issues.
- Ensure the functioning of a proper case-management system.
- Achieve significant results in the rate, number and quality of prosecutions in relation to offences connected with organised crime and trafficking, as well as in terms of the seizure of the proceeds of crime.
The priorities listed have been selected on the basis that it is realistic to expect that Albania can complete them or take them substantially forward over the next few years. A distinction is made between short-term priorities, which are expected to be accomplished within one to two years, and medium-term priorities, which are expected to be accomplished within three to four years. The priorities concern both legislation and the implementation thereof.
The priorities of the Albanian Government within the National Action Plan for the Implementation of the Stabilisation and Association Agreement 2006-2007 period are as follows:
- Increase the transparency of criminal and civil proceedings;
- Strengthen the status, independence and constitutional protection of judges;
- Establish objective and transparent rules in the process of case assignment to judges;
- Establish a transparent meritocracy system of appraisal for prosecutors;
- Improve co-ordination between the Prosecution and the Police
`2.4 Contribution to National Development Plan
The Government of Albania’s National Action Plan for the Implementation of the European Partnership Priorities makes the following commitments:-
Political objective - Government Programme 2005-2009
Judiciary
The Government, in their project of "Change", will widely and deeply implement the reforms in the judiciary, under the recommendation and support of the international partners, in respect of the Constitutional roles and in collaboration with the President of the Republic, the High Council of Justice and other institutions involved in the reforms and performance of the judiciary. The community of judges and lawyers together with civil society will be extensively involved in this process. The reforms in the field of the judiciary will aim at restoring the trust of Albanians in the judiciary system and the fairness and impartiality of court decisions. The reform will focus on the following priority aspects:
- Guarantee the real autonomy of the judiciary by strengthening the institutions of self-control and administration of the judiciary;
- Strengthen the accountability and impartiality of the court system, through the publishing all court decisions, and improving the evaluation of the performance of judges and their accountability before the Law, based on objective criteria;
- Improve the working conditions and the facilities of the judiciary, upgrade the professionalism of judges, and improve the transparency and objectivity in the appointment of judges and the evolution of their careers;
- Ensure the complete and rigorous execution of the court decisions, primarily over the state institutions;
- Promote and establish new alternative forms of judgment such as arbitration and mediation,
- Restructure and strengthen the capacities of the public prosecutor.
Stabilisation and Association process priority: Albania is a participant in the Stabilisation and Association process (SAp) with the Western Balkans, the EU strategic framework for bringing stability to the region through the achievement of a series of political and economic reform milestones, supported with targeted technical and financial assistance under the CARDS programme. EU relations with Albania advanced with the signature in June 2006 of the Stabilisation and Association agreement. The proposed twinning assignment, which aims precisely at judicial reform, tackling corruption through assistance to the Albanian General Prosecutor's Office, is therefore fully in line with the priorities of the Stabilisation and Association process with the EU.
The proposed Project will also support the implementation of the Action Plan of the Ministry of Interior for achieving the ambitious objectives of the European Partnership Document.
3. Description
3.1. Background and justification:
A key requirement for Albania, in its goal to progress further on the road towards integration and eventual membership of the EU is the improvement of efficiency and standards within the criminal justice system. At the same time, ensuring that the integrity of the system is enhanced and raised to a level that will ensure credibility within a European context. For this to become a reality the competence and effectiveness of the General Prosecutor's Office is paramount and to develop positively, there has to be strict observance of procedures, ethical codes and adherence to the relevant laws. No system of justice can survive without an absolute assurance that it operates freely and without fear or favour. As with Member States, Albania is challenged by the global increase in organised crime, particularly where borders are opened and international travel becomes less complex for the wrongdoers engaged in serious organised criminality. Furthermore, as Albania increases its capacity to combat organised crime, a competent and proficient prosecution system is vital in order to secure convictions that are both ethical and just.
The democratic changes at the beginning of the 1990's brought about fundamental legal and structural changes in the General Prosecutor's Office, which is responsible for initiating, conducting and managing investigations and prosecuting at subsequent court hearings. It has its own structure and the General Prosecutor is responsible to the President of the Republic. Prosecutors are appointed and discharged by the President upon the advice of the General Prosecutor and their functions are provided for under the Constitution, the Criminal Procedure Code and the Law on the Organisation and Functioning of the Prosecution Office. Prosecutors are assisted in their function by judicial police officers. Law No 8677 of November 2000 sets out their roles and responsibilities and they are tasked with carrying out full and comprehensive investigative activities.
The overall performance and efficiency of the General Prosecutor's Office, depends largely on the collaboration professionally of the prosecutor and the judicial police officer at the pre-trial stage. Without this partnership, the prosecutors function is somewhat restricted. The requirement to perform efficiently and deal diligently with prosecutions is essential to any justice system and therefore, requires regular evaluation to identify areas in need of improvement and react appropriately when unprofessional conduct is detected. The Directorate of Human Resources and Inspection (DHRI), of the General Prosecutor's Office is charged with both inspection and evaluation matters. It consists of a director and five prosecutors. The evaluation duties for prosecutors will be regulated by the law that relates to the evaluation of judges. The DHRI essentially needs institutional and capacity building support.
When considering a system or scheme designed to inspect and evaluate prosecutors within the Albanian General Prosecutor's Office, the organisation and relationship of the judicial police and prosecutor must be taken into account as no progress can be expected without harmonising activity in this area. An analysis of the situation in Albania between these two groups reveals an astounding lack of unity between these investigative bodies. Indeed, it can be argued that their professional relationship is restricted through lack of clarity of their respective roles at the initial investigation stage. Currently when information is received in the prosecution office from police or individuals about a criminal offence, the case is registered and assigned by the chief district prosecutor to a prosecutor who performs the preliminary investigation with the assistance of the judicial police. Within three months from the registration of the alleged committed criminal offence, based on the investigation performed by the judicial police, the prosecutor must make a decision, about whether the case should be sent to court, dismissed or suspended. Presently, there is a profusion of evidence to show that for a variety of reasons; through lack of continuity in the employment of judicial officers within the General Prosecutor's Office, various pressures at a local level or through individual weakness, there is a failure to properly investigate matters, resulting in many valid prosecutions being curtailed. The chief reason for this is that the judicial police employed at the prosecutor's office are subordinated to the Ministry of Interior and through lack of communication between the respective human resource departments, officers are frequently moved without warning and before the completion of investigations.
The Judicial Police, as a body involved in the investigation of criminal offences was first provided for by the Criminal Procedure Code adopted in 1995, which was subsequently replaced by Law No. 8677, dated 02.11.2000. The Judicial Police are divided into two types; Services of the Judicial Police based in the district police offices, but performing duties for and under the supervision of the district prosecution office and Sections of the Judicial Police functioning within the district prosecution offices. According to the legal definition of the Services of the Judicial Police, this category is composed of the staff of the State Police and other police forces that have been given the status of judicial police by Judicial Police Law. Confusingly there are in addition for example, Forest Police and Customs Police. At the district police level, Services of the Judicial Police are the following bodies of the State Police:
a) Sections of the Criminal Police,
b) Subsections of the Border Police,
c) Subsections of the Traffic Police,
d) Sections of the Order Police.
It can be seen therefore, that there must be some radical reorganisation of the system at the lower level of the General Prosecutor's Office, between the prosecutors and in particular the judicial police officers before any inspection and evaluation unit can begin to be successful. Or else, dissatisfaction and lack of unity at the pre-trial phase will be perpetuated, resulting in a continued reduction of the quality of investigations and prosecutions.
There is a school of thought that seriously questions the need to have such a complicated investigative system. The system would benefit far more by having a well trained and supervised department of detectives within the State police, capable of conducting quality investigations whether proactively or reactively, seeking the assistance and advice of a prosecutor when required. At the appropriate time, when the prosecutor was satisfied that there was sufficient evidence to obtain a conviction at court; proceedings could be instigated in the first instance. The investigating officers would be firmly line managed by their supervisors at the Commissariat (local police station), thus avoiding the present tenuous connection that exists at the lower level between judicial investigators and the prosecutor. Paradoxically, current legislation allows for this but it does not seem to be adhered to - Law 8677 of 2 November 2000 is clear on this:
Article 3 states -
'Judicial police are responsible in criminal proceeding for the principal duty of obtaining knowledge about criminal acts, preventing further consequences because of them (sic), and carrying out full and comprehensive investigative activities, on their own initiative or by order or delegation, for discovering the perpetrators and obtaining evidence about their criminal activity….
Article 4 (1) further states –
'In the exercise of their duties and functions, the judicial police are under and are directed and controlled by the prosecutor'.
Many of the difficulties that exist at the district prosecutor offices stem from a deficiency in real time management skills. There is no line management capacity whereby, the conduct of an investigation or court prosecution can be closely scrutinised so that any issues arising are passed to senior management for appropriate action. Indeed, there does not appear to be any hierarchical structure whereby responsibility can be accepted by anyone at the top. Presently, the district chief prosecutor has sole control and there is therefore, no meaningful standardisation of investigations and prosecutions across the country. Neither is there any significant disciplined evaluation of the quality of work that prosecutors produce. It must also be recognised that there is no system in place whereby, good work is eventually rewarded with promotion and an increase in salary. Without such an incentive, motivation of staff is almost impossible.