IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

Decision No 46

Tirana, 28 June 1999
Applicant: Supreme Court
Subject case: Incompatibility of Articles 481/2 of the Code of Civil Procedure with Article 141/2 of the Constitution
Legal Basis: Articles 131/a and 134/d of the Constitution
Constitutional Court

After having heard interested parties and examined the case substantially,

Observed

On 1 April 1999, the Chairman of the Supreme Court has decided that civil case No 1216 with plaintiffs Ms. Marie Deda and Mr. Albert Akshia be tried by Joint Chambers pursuant to Article 481/2 of the Code of Civil Procedure due to importance of the fact presented in this case.

Joint Chambers of the Supreme Court had decided for the suspension of the trial and transfer it to the Constitutional Court, which in turn would have to decide for compatibility of Article 481/2 of the Code of Civil Procedure with respect to the powers of the Chairman of the Cassation Court to decide for the transfer of case and those recourses deemed important due to the nature of the case to be tried by the Joint Chambers of the Supreme Court. Under Article 481/2 of the Code of Civil Procedure, the Chairman of the Cassation Court may express itself in the meeting of Joint Chambers for recourses presented by the parties, for which there are existing or previous practices as well as for recourses with particular importance due to their nature.

Powers given to the Chairman of the Cassation Court by the Code of Civil Procedure to decide for the transfer of the case to Joint Chambers even though done due to importance of the case, do not comply with the Constitution which provides a different method for the solution of this problem. Article 141/1 of the Constitution provides that: "To the effect of unification or change of judicial practice, the Supreme Court has the right to try cases through Joint Chambers when there are particular judicial cases". Provision in the Constitution for trial by Joint Chambers for the purpose of unification or changing of judicial practice is mandatory and does not allow trial of those cases other than those serving to the defined purpose. Therefore, powers given to the Chairman of the Cassation Court by 2nd paragraph of Article 481 of the Code of Civil to transfer in the Joint Chambers those recourses deemed important under his/her opinion, is not in conformity with the Constitution, therefore must be abrogated as such.

The rule set in Article 178/1 of the Constitution providing that "Laws and other mandatory acts approved prior to the approval of the Constitution shall be continued to apply unless they have been abrogated", is not applicable in this case because it has effect only for those laws and other mandatory acts which fully or partially are not running against with particular provisions of the Constitution. The same was held by the Constitution Court in its previous Decision No 77, dated 31 December 1998.

Therefore

The Constitutional Court of the Republic of Albania, in pursuance with Articles 131/a and 134/d of the Constitution of the Republic of Albania, and Article 41 of the Law No 8373, dated 15 July 1998 "For Organization and Operation of the Constitutional Court of the Republic of Albania", with majority

Held

To abrogate in Article 481/2 of the Code of Civil Procedure the sentence: as well as those recourses having particular importance due to their nature".

This Decision is final, cannot be appealed and comes into force with its publication in the Official Journal.

Dissenting Opinion

I vote against the majority for the following reasons:

The question whether the case must be examined by the Joint Chambers depends on its specific nature, criteria provided by Article 141/2 of the Constitution, as well as relevant provisions of the existing Code of the Civil Procedure.

The subject case finally has been tried by the Constitutional Court, which has declared unconstitutional Decision of the Civil Chamber No 878, dated 13 June 1996. The Constitutional Court observes that Civil Chamber has overruled both decisions of lower courts that have been appealed, trying the case itself by acting thus in contradiction with Article 189 of the old Code of Civil Procedure which was in power in the past. Article 189 corresponding to Article 485 of the existing Code of Civil Procedure, does not provide the right of the Civil Chamber to render void both decisions and resolve the case by itself. This would mean violation of the principle of the fair trial under Article 38 of Law No 7692, dated 31 March 1993 "On Fundamental Human Rights and Freedoms". The Cassation Court must have sent the case for re-trial according to prescribed procedure, but instead acted differently by establishing an illegal practice.

This case is such as to impose the application of Article 141/2 of the Constitution to unify the judicial practice, not to further allow continuation of such attitude. This would force Joint Chambers to admit the application of the Chairman of the Court and examine the case of unification of the practice as typical case, instead of relying upon the letter of recommendation simply because the unification of practice was not mentioned in the letter, they should have been relied upon the importance of the case, eventhough the letter referred to Article 481/2 of the Code of Civil Procedure, which included unification of practice in the first place.

The importance of the case must be understood along with the purpose of unification of judicial practice. In the light of direction and substance, the application of the Chairman of the Supreme Court in pursuance with Article 481/2 should not be considered as running against the Article 141 of the Constitution. Therefore there is no conflict between two provisions, as a consequence instead of being admitted; application should have been refused.


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