MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-1

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-1 Luli and Others group v. Albania (Application No. 64480/09) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)239, DH-DD(2024)1210, CM/Del/Dec(2022)1451/H46-1

 

Application	Case	Judgment of	Final on	Indicator for the classification
64480/09+	LULI AND OTHERS	01/04/2014	01/07/2014	Complex problem
10508/02	GJONBOÇARI AND OTHERS	23/10/2007	31/03/2008
43391/18+	BARA AND KOLA	12/10/2021	28/02/2022
22122/08	LACEJ AND OTHERS	29/09/2022	29/09/2022
72348/11	MULLA	06/07/2023	06/07/2023
61445/12+	ZEQO AND SEAT SH.P.K.	22/06/2023	22/06/2023
11254/11	HAMITAJ	20/07/2023	20/07/2023
31011/09	ILIRIA S.R.L.	05/03/2024	05/03/2024
22493/12	KOKALARI	30/01/2024	30/01/2024
31018/09	VICKTORIA SH.P.K.	22/02/2024	22/02/2024
18076/12	VJOLA SH.P.K. AND DE SH.P.K.	30/01/2024	30/01/2024

·  Strengthening the Quality and Efficiency of Justice in Albania (SEJ IV)

Cases description

This group of cases concerns the excessive length of civil, administrative and criminal proceedings[1] between 1996 and 2021. The European Court criticised, inter alia, the failure of the judicial system to manage properly a multiplication of proceedings before various courts on the same issue and repeated remittals of cases back to lower levels of jurisdiction in civil or criminal proceedings (violations of Article 6 § 1). The cases of Gjonbocari and Others and Bara and Kola concern also the lack of an effective remedy or the ineffectiveness of a remedy in specific circumstances (violations of Article 13).[2]

Under Article 46 in the Luli and Others judgment, the European Court noted that the excessive length of proceedings became a serious deficiency and indicated the need to adopt general measures, in particular the introduction of a domestic remedy.

Status of execution

The information provided by the authorities in response to the Committee’s previous decisions is summarised below (DH-DD(2024)239 and DH-DD(2024)1210). Relevant publicly available information is also presented.  

Individual measures:

The just satisfaction awarded by the European Court has been paid in all cases, except the recent case of Iliria S.R.L. case.

In the Luli and Others case, one of the sets of domestic proceedings is still pending before the Court of Appeal.

In the Bara and Kola case, on 27 March 2023, the Administrative Court of Appeal upheld the first-instance judgment, which was not appealed (Bara application). The proceedings in the Kola application are still pending.

As regards the Gjonbocari and Others case, the authorities consider that no further individual measures are required, because the European Court in a recent inadmissibility decision of March 2024 (Gëzim Boçari v. Albania, No. 75984/11) found that the Vlora Agency had rapidly complied with the Supreme Court’s judgment of 6 March 2003 by issuing a decision on the claim for the restitution of property. 

The proceedings have ended in the cases Lacej and Others, Mulla, Zeqo and Seat Sh.P.K., Hamitaj, Iliria S.R.L., Vicktoria Sh.P.K., and Vjola Sh.P.K. and De Sh.P.K already before the European Court’s judgments.

No information has been provided concerning the proceedings in the recent Kokalari case.

General measures:

A)    Previous examination by the Committee of Ministers

In December 2022, the Committee called for guarantees that the extended deadline for the vetting of judges (until the end of 2024) would be met and that the functioning of the judiciary would be ensured in the meantime, as recommended by the Venice Commission. It welcomed the steady progress made in filling judicial vacancies resulting from the vetting of judges, which has allowed the Constitutional Court and the Supreme Court to become operational; it also welcomed the sustained measures to reduce the backlog of cases at the Supreme Court and the good pace of resolution of cases at the Constitutional Court. It requested the authorities, inter alia, to speed up the appointment of judges and to reduce the backlog of cases in the most affected courts (particularly the second-instance courts), and to assess the need for specific additional measures for backlog reduction. The Committee welcomed the fact that the general acceleratory and compensatory remedy has been recently considered by the European Court to be effective in principle but noted that it remains to be seen whether the remedy has also been effective in practice.

Finally, it asked for clarifications on the reasons for the rejection of applications for finding that the reasonable time requirement has been breached and for acceleration of proceedings, as well as for a thorough statistical overview of the use and examination of the remedies.

B)    Measures to address the excessive length of judicial proceedings

1)     Progress with the vetting of judges and other magistrates[3]

According to the publicly available data of the European Commission, as of 22 October 2024,[4] the Independent Qualification Commission (IQC) (the first instance of the vetting process), has assessed in total 798 magistrates, out of 805 (around 99 %). As a result, 44.9% of the magistrates were confirmed in their duties and 33.1 % were dismissed. The vetting proceedings were terminated for 22.8% of the magistrates due to resignation (16.02 %) or obligation to undergo training (5.9 %).

Vetting decisions become final if not appealed or if confirmed by the Special Appeal Chamber. As of 22 October 2024, there were 648 final decisions (they were 571 in December 2023 and 336 in 2021), including 296 confirmations in office; 187 dismissals; and 165 terminations (out of which 111 due to resignations). There is no precise information on the number of appeals pending.

The European Commission has indicated in its 2024 annual report on Albania that there was a risk of expiration of the deadline of June 2026 determined in the Constitution for the completion of the vetting process before all vetting cases are concluded on appeal.

2)     Progress with the filling of vacant positions of judges

The High Judicial Council (HJC) reported that in 2023, 60.5% of the positions of judges were effectively filled.[5] There were 247 judges in 2023 (228 in 2022), for a total of 408 positions, which represents a shortage of 161 judges.[6] According to its report, the shortage of judges led to very high workload. Moreover, 173 positions for judicial administration employees remained vacant.

In October 2024, the authorities underlined that the HJC has advanced in filling the judicial vacancies. The Constitutional Court and the Supreme Court (“the SC”) currently function in full composition  (DH-DD(2024)239). Based on the quotas already approved by the HJC, 120 new judges are expected to join the judiciary over the next three years.[7] A strategy of the HJC of May 2024 (see below) makes projections for reaching full composition of the most overburdened courts in 2027 and 2028.

In 2023, a total of 16 already serving judges have been appointed, through promotion or delegation, to first and second-instance courts where reinforcement was necessary (DH-DD(2024)1210). In addition, 73 new judges who graduated from the School of Magistrates in 2023 and 2024 were appointed.[8] In its recent report on Albania, the European Commission underlined that the annual intake of magistrates by the School of Magistrates is still insufficient.[9]

3)     Specific measures to reduce the backlog of cases

- Reorganisation of the court system: Following the adoption of the Judicial Map in 2022,[10] the HJC adopted a total of 60 bylaws, on the establishment of reorganisation commissions and transfer of judges.^[11] It completed the restructuring of the courts, and it has redistributed all available magistrates and other staff. 

- Strategy of the HJC of May 2024: The HJC adopted a strategy on backlog reduction (including, inter alia, scenarios for reducing backlog by court, recommendations and an action plan). It adopted the instruction on the mapping and classification of the backlog of cases and proposed to Parliament amendments to relevant pieces of legislation on procedural law. The implementation of these and other measures is ongoing.^[12] The HJC also submitted a report to Parliament on 29 April 2024, indicating the need for additional funding to allow appointing new magistrates and support staff.

- Cross-sectoral strategy of Justice (2024-2030): The Ministry of Justice has drafted a new justice strategy, aimed inter alia at increasing the efficiency of courts and providing the necessary financial, human and infrastructural resources for an effective functioning of the justice system.

- New case-management system: The HJC is developing a New Case Management System (ICMIS) for the courts. The Inter-institutional Working Group (IWG), in consultation with the European Commission for the Efficiency of Justice (CEPEJ), the experts of the European Union Delegation in Tirana and the United Nations Office for Project Services (UNOPS), has prepared the Roadmap for the Digitalisation of the Justice System (and an interoperability framework for the entire integrated system). Some preparatory acts were adopted on the roll-out of an integrated case management system.

- Harmonisation of practices by the SC and recruitment of legal advisers: The SC has improved its working methods by standardising procedural acts and reviewing administrative practices. New legal advisors have been recruited and a unit of 28 advisors has been established aiming at reducing the backlog. Currently, the SC is working to unify practices, through the review of cases adjudicated in panels of five members.

- Withdrawal of appeals: The Council of Ministers' Instruction No. l of 26 May 2022 has contributed to reducing the backlog of cases by enabling the withdrawal by the State of appeals which have lost their relevance. In 2023, out of 468 requests to withdraw appeals, 384 were from public institutions.

- Frequent remittals of cases in civil and criminal proceedings: For 2022 and 2023, there was an increase of remittals by the SC (209 out of 1805 examined cases were referred back); the authorities explained that this figure was due to the significant rise of total number of examined cases by that court in the past two years. No specific information has been provided on the number of remittals in civil cases.[13]

4)     Impact of the measures

- Functioning of the Constitutional Court: The examination of cases by the Constitutional Court takes approximately 8 months and the Constitutional Court currently has no backlog of cases.

- Functioning of the Supreme Court: The authorities report a decrease of 18% in the pending cases (26,058 in January 2024; 31,827 in 2023 and 30,998 in 2022). The SC is currently examining appeals from 2015-2018, but priority categories of cases are examined more rapidly. In 2023, each SC judge had a workload of nearly 2084 cases; the SC reviewed on average 250 cases per year per judge. The HJC reports that in 2023, the clearance rate[14] for civil cases was 362.53% (282% in 2022); for criminal cases, it was 265.17% (193% in 2022) and for administrative cases it was 535% (613% in 2022). They reported that in 2022 the disposition time[15] was 2851.2 days for civil cases, 902.5 days for criminal cases, and 1584.1 days for administrative cases.

- Functioning of the second-instance courts: The number of cases pending before the appealcourts of general jurisdiction , as reported by the authorities, increased to 37,662 in 2023 (18,013 in 2020; 28,140 in 2021; 31,370 in 2022). In 2022, the clearance rate was 66% for civil and commercial litigious cases and 85% for criminal cases.[16] The HJC data[17] allows a conclusion that in 2023 the clearance rate of the Tirana Court of Appeal of General Jurisdiction (the only jurisdiction of its kind)^[18] was 43% for civil cases; 73% for criminal cases; the overall clearance rate was 56.4% (56.7% in 2022). In 2023, the average length for this jurisdiction was 1,673.4 days for all types of cases; it was 2,790.7 days in civil cases (1,605 in 2022) and 885.2 in criminal cases (893 in 2022). In 2023, 31% of the judges were effectively in office; and 69% of the court staff.

According to the data provided by the authorities, the number of pending cases before the Tirana Administrative Court of Appeal increased to 23,056 cases in 2023 (2,810 in 2020; 15,157 in 2021; 21,166 in 2022). In 2022, the clearance rate was 24.4%. The HJC data allows a conclusion that the clearance rate in 2023 was 43%. Also, in 2023, the average length of proceedings was 5,326.20 days (14.6 years) (8,650 days or 23.6 years in 2022). Eight out of 13 judges were in office; and 49.5% of the court staff.

In 2023, the Special Court of Appeal for Corruption and Organised Crime had a clearance rate of 103.3%.

- Situation of the first-instance courts: For the 13 first instance courts of general jurisdiction, the pending cases increased to 44,181 in 2023 (36,590 in 2021; 40,866 in 2022), of which 45% (19,911 cases) were pending with the First Instance Court of General Jurisdiction in Tirana. Data from the HJC shows that the average clearance rate in 2023 was 90% for civil cases (e.g., Tirana and Saranda courts below 100% and Berat Court at 112%) and 97% for criminal cases. The HJC reports[19] that in 2023 the average length of proceedings was 272 days for civil cases (175 in 2022) and 114 days for criminal cases (94 in 2022). The proportion of judges in place was 56% (131.9 judges out of 235 planned positions).[20] According to the HJC, the average workload of judges varied a lot between the courts, due to differences in judicial vacancies.

For the two administrative courts of first instance (in Tirana and Lushnja), the overall number of pending cases increased to 7,615 in 2023 (5,584 in 2021; 7,352 in 2022). The clearance was 91.25% in Tirana and 87.87% in Lushnja; the average length of proceedings was 292.2 days in Lushnja and 217.3 days in Tirana. The caseload is primarily concentrated in the latter court (80% of the total caseload), where the workload per judge is also much higher. The proportion of judges in place was 65% (23 judges out of 36 planned).

The Special First Instance Court for Corruption and Organised Crime had an average length of proceedings of 16 days and the number of pending cases for 2023 was 152 cases (compared to 181 cases in 2022).

- CEPEJ report for the 2024 Evaluation cycle (2022 data): The CEPEJ emphasised that the vetting has had an impact on the number of judges, the length of proceedings and the clearance rate (which was below 100% for first-instance courts and well below 100% for second-instance cases).[21] The European Commission in its 2024 Rule of Law report chapter on Albania indicated that the length of proceedings and the large backlog are due to judicial vacancies and unequal distribution of cases among courts.

5) Acceleratory and compensatory remedy

Since November 2017, a new acceleratory and compensatory remedy for excessive length of judicial proceedings has been functioning in Albania.[22] The first stage of the remedy is a request to find a breach of the reasonable time requirement (by just one level of jurisdiction); if the competent court makes such finding, it can order the acceleration of the proceedings. The request is examined by the court which is superior to the one responsible for the length or by a different formation of the SC.[23] The second stage of the remedy allows requesting compensation for the already established breach of the reasonable-time requirement; the claim for compensation should be filed with a first-instance court, which examines it within three months.

In its 2022 Bara and Kola judgment, the European Court found that the remedy was effective in principle but had been ineffective in the circumstances of the case as the delayed proceedings before the SC had not been expedited and the request for their acceleration had remained unanswered for more than three years.

The authorities indicated that for the period January 2022 - November 2023, in total 127 requests for finding a breach of the reasonable-time requirement were filed with the SC (76 in 2022; 51 in 2023), out of which 95 were examined and four were granted. For the same period, six requests for finding a violation of reasonable time and acceleration were filed with the Appeal Court of General Jurisdiction, some of which were rejected, or the proceedings were terminated; there were also two requests for compensation. During the period 2022-2023 there have been a total of 10 requests for compensation submitted in the first instance courts for violation of the reasonable time requirement; four were granted and the rest were terminated because of the non-appearance of the parties or because of lack of jurisdiction.

Analysis by the Secretariat

As regards individual measures

No further individual measures are needed in the cases Lacej and Others, Mulla, Zeqo and Seat Sh.P.K., Hamitaj, Vicktoria Sh.P.K., and Vjola Sh.P.K. and De Sh.P.K. where the proceedings have ended and the just satisfaction was paid, and in the Gjonbocari and Others case, where an administrative decision has been adopted to implement the relevant domestic court’s judgment and the just satisfaction was also paid. It is proposed to the Committee to close these repetitive cases and adopt a final resolution.

No further individual measures are needed in respect of the Bara application (Bara and Kola case), where the proceedings have ended. As regards the proceedings in the Kola application, the Luli and Others case and the Kokalari case, information is awaited on the advancement of domestic proceedings and, where relevant, their acceleration. As regards the recent Iliria S.R.L case, information is still awaited on the payment of just satisfaction.

As regards general measures

a)     Excessive length of proceedings

As previously noted, efforts by the authorities to finalise the vetting process, progress with the judicial appointments and reduce the backlog have been and remain crucial for the functioning of the judicial system.

-       Length of proceedings and backlog

It is very positive that the Constitutional Court has currently no backlog of cases and the length of proceedings appears reasonable. The same appears to be the case for the Special Court of Appeal for Corruption and Organised Crime and the Special Court of First Instance for Corruption and Organised Crime.

It is also encouraging that the Supreme Court has had very high clearance rates for 2022 and 2023, which means that its significant backlog has now started to decrease, and that it has a policy of examining priority cases more speedily and has streamlined certain practices. It is however concerning that the average length of proceedings remains very high and that this court currently examines cases from 2016-2018, which demonstrates the need for sustained efforts to speed up the clearing of its backlog.

By contrast, the low clearance rate, the significant average length of proceedings and increasing backlog of the second-instance courts of general or administrative jurisdiction appear concerning. The situation of at least some of the first-instance courts is also still concerning, as evidenced by the increase of the backlog of the courts of general jurisdiction and the administrative courts.

-       Measures adopted or envisaged

The above situation appears due (also according to EU data of 30 October 2024[24]) to the high number of judicial vacancies at appeal courts and the vacancies at first instance (mostly in the courts of general jurisdiction), which are the result of the still ongoing vetting process and the pace at which judicial appointments take place.

In this regard, while the near completion of the vetting process at the first-instance level is encouraging, it appears important to increase the pace of the appeal proceedings, to ensure their completion before the deadline of June 2026 determined in the Constitution.  

As regards judicial appointments, it is encouraging that the Constitutional Court and the SC function now in full composition, that the authorities are progressing with appointments and have plans for achieving full benches for some of the most overburdened courts. However, the occupation of only 60 % of the judges’ positions in the courts and the many positions for judicial administration employees remaining vacant are concerning, all the more that the HJC’s projections indicate that full staffing levels will not be achieved before 2028 or later.

The authorities should therefore be invited to deploy all necessary means for accelerating judicial appointments, including through additional budgetary funds. It also appears important to clarify whether it is envisaged to take steps for ensuring sufficient intake of the National School of Magistrates, or transitional measures (e.g., increased support by judicial administration employees), as well as for adequate distribution of judicial appointments, workload and support by judicial administration staff to the most overburdened courts.

While many challenges remain, significant and often complex measures have been implemented (e.g., a reform of the judicial map and appointment of legal advisers) or are ongoing (a strategy for the reduction of backlog, work on case-management systems, work on improving practices, etc.), which could improve the efficiency of the courts pending their full staffing with judges. To allow thorough assessment, the authorities could be encouraged to provide detailed information on these developments and their impact. They could also be encouraged to provide thorough analysis on the application and the impact of the previously adopted legislative amendments aimed at reducing the remittals in civil and criminal cases.

As regards all the above aspects, it is necessary for the authorities to continue providing detailed statistical information on appointments of judges and other staff; backlog, clearance rates, average length of proceedings, and disposition time for all levels of court and for the main categories of cases, on the courts or categories of cases where major difficulties exist, as well as comparable data for several years on remittals of cases in civil and criminal proceedings.

Finally, it is proposed to the Committee to welcome and encourage authorities’ engagement in cooperation activities, particularly the joint European Union/Council of Europe project “Strengthening the Quality and Efficiency of Justice in Albania” (SEJ IV).

b)     Effective domestic remedies

The overall number of requests filed and, more importantly, of the requests granted seems quite low for a period of two years, bearing in mind the very high average length of proceedings before the SC and other courts. The information on grounds for dismissal of requests is also incomplete in some respects and it is unclear whether some requests remained unanswered.

It is proposed to the Committee to request the authorities to provide a comprehensive overview containing disaggregated data of the number of requests filed and granted for the different levels of courts and for each stage of the remedy: a) for the stage of the finding of a breach of the reasonable-time requirement and acceleration and b) for the compensation stage. The authorities also need to provide detailed information on the grounds for dismissal of requests to find a breach of the reasonable-time requirement (and acceleration) and requests for compensation, as well as examples of judicial decisions where the relevant requests were granted or dismissed.   

 

Financing assured: YES