IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

On April 9, 1999, the Constitutional Court of the Republic of Albania reviewed a complaint lodged by Mr. Rushit Demo, a former district judge, relating to the alleged unconstitutionality of the decision of the Supreme Council of Justice no. 4 of November 10, 1997 for the dismissal of the complainant on the grounds of a long and unjustified absence from the working place.

The complainant Demo, appealed against the decision of the Supreme Council of Justice to the Joint Chamber of the then Cassattion Court on the ground that the Supreme Council of Justice did not convene him and consequently he was not heard in breach of article 38 of the Law "On the Fundamental Rights and Freedoms", article 42/1 of the Constitution of Albania as well as UN Resolutions no. 40/32 of November 29, 1985 and no. 40/146 of December 12, 1985. The Joint Chambers rejected the appeal and upheld the decision of the Supreme Council of Justice.

Finally, the complainant resorted to the Constitutional Court claiming that his right for a due process of law was undermined by the fact that two of the judges of the Cassattion Court panel were members of the Supreme Council of Justice.

The Constitutional Court established that there was no written evidence indicating that the complainant was convened by the Supreme Council of Justice and added that the right to be heard is as much obligatory for the Supreme Council of Justice as it is for any court of law or administrative body. Such an obligation is derived from the constitutional provisions as well as "The Fundamental Principles for the Independence of the Judiciary" provided for by UN Resolutions no. 40/32 of November 29, 1985 and no. 40/146 of December 12, 1985.

Furthermore, the participation in the panel of those judges who are members of the Supreme Council of Justice was found incompatible with article 11 of the Law no. 7561, dt. 29.04.1992 "On Certain amendments to Law no. 7491, dt. 29.04.1991 "On the Main Constitutional Provisions" which stipulates that "Judges shall not be involved in the adjudication of cases when there exist legal impediments which undermine their impartiality ………..". The same obligation is to be derived from article 72/5 of the Code of Civil Procedure.

Therefore, the Constitutional Court repeal the decision of the Joint Chambers of the Cassattion Court as unconstitutional and remanded the case to the same Joint Chambers for review in the light of the findings of the Constitutional Court.


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Institute for Policy & Legal Studies 2000