US embassy cable - 06TIRANA559

CONSTITUTIONAL COURT AFFIRMS JUDICIAL Q@%Q@AQQN(U) Under the Albanian Constitution, the High Council of Justice (HCJ) is the governing body of the judiciary, with responsibility for its organization and functioning. The primary purpose of the HCJ is t

Identifier: 06TIRANA559
Wikileaks: View 06TIRANA559 at Wikileaks.org
Origin: Embassy Tirana
Created: 2006-05-26 13:53:00
Classification: CONFIDENTIAL
Tags: PREL PGOV KJUS AL
Redacted: This cable was not redacted by Wikileaks.
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DE RUEHTI #0559/01 1461353
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R 261353Z MAY 06
FM AMEMBASSY TIRANA
TO RUEHC/SECSTATE WASHDC 4340
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEPGBA/CDR USEUCOM INTEL VAIHINGEN GE
RHMFISS/CDR USEUCOM VAIHINGEN GE
RUEAIIA/CIA WASHDC
RHMFISS/COMSOCEUR VAIHINGEN GE
RHDLCNE/COMUSNAVEUR LONDON UK
RUFNPKB/COMUSNAVEUR POLAD NAPLES IT
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEFDIA/DIA WASHINGTON DC
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RUEHBS/USEU BRUSSELS
RUEHNO/USMISSION USNATO 3265
RUEHVEN/USMISSION USOSCE 2148
RUEHPS/USOFFICE PRISTINA 3408
C O N F I D E N T I A L SECTION 01 OF 02 TIRANA 000559 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR EUR/SCE (MBENEDICT) 
NSC FOR BRAUN 
 
E.O. 12958: DECL: 05/25/2016 
TAGS: PREL, PGOV, KJUS, AL 
SUBJECT: CONSTITUTIONAL COURT AFFIRMS JUDICIAL Q@%Q@AQQN(U) Under the Albanian 
Constitution, the High Council of 
Justice (HCJ) is the governing body of the judiciary, with 
responsibility for its organization and functioning. The 
primary purpose of the HCJ is to propose judges for 
 
appointment, discipline judges, and transfer judges from one 
court to another. The HCJ also has the authority to appoint 
one of the seven members of the Central Election Commission 
(CEC). The HCJ consists of fifteen members, including nine 
proposed by the National Judiciary Conference (NJC) and three 
by the Parliament. The final three members are the President 
of the Republic, who serves as the Chairman of the HCJ, the 
President of the Constitutional Court, and the Minister of 
Justice. 
 
MOST AMENDMENTS REJECTED... 
--------------------------- 
 
3. (SBU) In a 5-4 decision the Constitutional Court 
overturned key provisions of a controversial set of 
amendments aimed at reforming the HCJ. Referred to as the 
"Law Regarding Conflict of Interest in the HCJ", the 
amendments were approved by Parliament late last year and 
came into force in January. The amendments automatically took 
effect without the signature of President Moisiu, since he 
declined to take action within 20 days (thereby signaling 
disapproval without exercise of a veto), as specified by the 
Constitution. The legislation ostensibly sought to reduce 
possible conflicts of interest by forcing HCJ members to 
either resign from the HCJ or to retire active judgeships and 
cease all outside activities (except teaching) in order to 
serve full time on the High Council. 
 
4. (SBU) As originally written, the 2001 HCJ law declared 
membership on the High Council as incompatible with 
employment as a prosecutor, an executive in a political 
party, or a lawyer accredited to trial courts or courts of 
appeal.  As amended, teaching would have been the only 
permitted outside activity for members of the HCJ and all 
other positions, including that of judge, would have to be 
relinquished. 
 
5. (SBU)  The Constitutional Court wrote that forcing HCJ 
members to choose between continued membership or an active 
judgeship is unconstitutional.  The term of office for 
membership in the HCJ is 5 years and that of a judge is life. 
 Forcing HCJ members to choose between these offices 
infringes on the independence of the judicial branch by the 
legislative branch.  It was argued that the terms of these 
offices are set in the Constitution, and the legislature 
cannot change that by act of law. 
 
6. (U)  In further explanation, the Court noted that 
membership on the HCJ is not only inherently part-time, but 
must allow for members of that body to have other functions, 
 
TIRANA 00000559  002 OF 002 
 
 
including that of an active judge.  Why?  Because the head of 
the Supreme Court, as a constitutionally-mandated member of 
the HCJ, must necessarily remain an active judge, something 
the new law would have disallowed. 
 
7. (SBU) The proposed law also granted members of the HCJ 
immunity from prosecution, under the reasoning that if they 
were no longer sitting judges they would no longer enjoy 
immunity derived from that office. But this measure would 
also have extended immunity even to the non-judicial members. 
Such immunity is not provided by the Constitution and, 
according to the decision of the Constitutional Court, cannot 
be granted by an act of law. 
 
...EXCEPT ONE 
------------- 
 
Qe|Qu*embers elected by the National Judiciary Conference must be 
judges with a minimum of 10 years experience and that the 
three members chosen by the Parliament must be lawyers, not 
judges, with a minimum of 15 years experience. As originally 
written, all elected members of the HCJ could be judges. 
 
9. (C) COMMENT:  A common criticism of the Berisha government 
is that, though well intended, it has sometimes behaved 
heavy-handedly in its efforts to combat organized crime and 
corruption.  By issuing this ruling the Court has fulfilled 
its "checks and balances" role.  It also reaffirms that 
respect for the rule of law begins with respect for the 
Constitution.  This law would have also infringed on the 
ability of the judiciary to control and regulate itself, an 
essential element of the division of power. 
 
10. (C) COMMENT CONT:  As is often the case there may be an 
underlying political motive. Some believe that these 
amendments were pushed through by the DP-led Parliament in 
part as a way to force out a number of the members of the HCJ 
before the expiration of their mandates.  The underlying 
issue here is not merely control over the HCJ itself, but 
over the critically important role of the HCJ to select the 
supposed "impartial" deciding member of the Central Election 
Commission (CEC). By changing the make up of the HCJ, the 
governing party would have strengthened its ability to 
control the CEC. END COMMENT 
RIES 

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