Miqλsia's Erfaringsprojekt


Support to the justice system in Albania

Development of alternative conflict solving methods


By Hans Henrik Brydensholt, Senior Legal Advisor


Miqλsia er albansk og betyder venskab





Kontaktadresse: information@miqesia.dk




Version 1.0 - 19.05.2005



Ministry of Foreign Affairs. DANIDA.


Mission 20.-26. November 2001.


Report No. 19. Draft

N.C.G. Ref.No. 104.N.286-16a. December 2001


[Den foreliggende udgave er forkortet ift den oprindelige; sεledes er forskelligt statistisk materiale udeladt. BA, maj 2005]





List of Contents

1. Terms of Reference for the Consultancy
2. The first phase of the Danish transitional assistance programme
3. Establishment of a Technical Committee as responsible for the justice programme
4. The present state of the Danida Justice Programme
5. The Technical Committee's plan for the future
6. Considerations regarding the Judiciary
7. Considerations regarding AFCR
8. The Ombudsman
9. Recommendations
10. Follow-up

Annexes




1. Terms of Reference for the Consultancy.

The terms of reference is found in Annex 1.

The visit to Albania took place 20.-26. November 2001.

The programme followed is enclosed as Annex 2.

Even if assistance to the Foundation for Mediation and Reconciliation of Conflicts (AFCR) were not expressively included in the terms of reference, meetings with the Director and the Board of the Foundation was included in the programme. Considering the importance of introducing alternative conflict resolution methods as part of the legal sector in Albania it is right to see the support to AFCR as part of the Danida support to the Judiciary.

I got a very efficient assistance from the long-term Legal Adviser Sψren Stig Andersen which highly facilitated the accomplishment of the very tight programme. It has proved to be right that the Legal Adviser has his own office outside the Ministry of Justice and the Embassy. This has made his independence trustworthy and thereby eased his cooperation with the Albanian Judiciary.


2. The first phase of the Danish transitional assistance programme.

2.1 During the first phase of the transitional programme (1994-1997) only a small portion of the assistance was given to the legal sector. During that time it was not feasible to support the Judiciary. The courts were far from independent of the government. The Magistrates had only a 6 months course in law and they were considered highly corrupt. Danida for these reasons restricted itself to assist young Albanian judges with good academic background to come to Denmark for courses.

Instead of supporting the Judiciary assistance was given to the creation of the Albanian Foundation for Conflict Resolution and Reconciliation (AFCR).

2.2 Since 1997 the political and legal situation in Albania has changed. Responding to the new government's will to reform the Judiciary, Danida in the second phase in the transitional assistance programme - stipulated to run 3 years up to the end of 2002 - has directed the major part of the support [...] towards the legal sector. The legal sector programme includes:
• support to the People's Advocate (Ombudsman)
• support to the General Prosecutor's office
• support to the Judicial Inspectors
• support to the Law School, University of Tirana
• support to the Magistrate School
• support to Media Reform
• support to the Dibra region
Out of a total budget of 40 mio. d.kr. for the legal sector, Dibra alone has got 20 mio. d.kr.


3. Establishment of a Technical Committee as responsible for the justice programme.

In the beginning of 2001 Legal Sector Adviser Sψren Stig Andersen was recruited and a Technical Committee was established. The legal sector is unique in the way, that it is a system composed of a number of more or less independent sub-systems (investigation police, prosecution, advocates, courts, prisons, probation etc.). The various sub-systems are nevertheless interdependent to a degree, that the hole system's functionality is decided by the weakest of the sub-systems. As an example prosecution and courts are dependent of the quality of the work of the investigation police.

Accordingly, in order to strengthen the judiciary it is necessary to have a forum where high ranking representatives of the various parts of the legal sector can come together and - supported by Danida funds and the Danish legal expert - make the necessary integrated planning.

The Committee was established earlier in 2001 and had its first meeting in May.

The members are:
• Chairman Mr. Artan Hoxa [Hoxha], Judge of the Supreme Court
• Ms. Arjana Fullani, Director of the Magistrates' School
• Ms. Luljeta Laze, Director of Judiciary Budget Administration
• Mr. Dhimiter Prifti, Chairman of the Judicial Inspectorate of the High Council of Justice
• Mr.Izmet Shameti, Head of Section, General Codification Directorate, Ministry of Justice
• Mr. Ardian Visha, General Prosecutor's Office, Head of the Division for Foreign Relations
• Mr. Sψren Stig Andersen, Danish Legal Sector Adviser
• Ms. Iva Zajmi, Assistant to the Danish Legal Sector Adviser
The aim of the Technical Committee is to develope and implement a comprehensive plan for the Danida programme. The plan should insure a high degree of co-ordination between the activities on the central level and between the central level and the Dibra-project. The main reason for the Danida support to the Dibra region is to have a testing ground for general reforms. The Technical Committee will in its work analyse possible ways of improving the existing institutional and legal framework of the legal sector.


4. The present state of the Danida Justice Programme.

4.1 The Magistrates' School has received important support from the Danida programme. The establishment of the school has been instrumental in the improvement of the professionel standard of those who are now appointed as Magistrates and Prosecutors.

An important assistance to the school has been a two weeks study tour to Denmark for students who had finished the second year of the three year education on the Magistrates' School. The Director of the school regard this course highly successfull and is requesting a similar arrangement to take place in June 2002.

The school has also been assisting in selecting 15 participants for a high level four-weeks legal course arranged at the Business School in Copenhagen. The latest course was held in September 2001. Also this course has been successfull and the school is ready to assist if similar courses should be arranged in the future. Also the Danish Faculty is highly satisfied with the Albanian's ability to profit from the course.

The Magistrates' School is now prepared to take up its obligation in arranging continuous training for Magistrates and Prosecutors who are already working in the system. A draft plan for this continuous training is included as Annex III. The school is however depending on further donor support in 2002.

The school is aware of the training for Magistrates and Prosecutors Danida has arranged in Dibra. The school will utilize the teaching materiel provided for those courses.


4.2 The Technical Committee has been successfull in establishing cooperation between the Albanian and the Danish prosecution service. An agreement has been signed. Terms of reference for the assistance in Dibra is included as Annex IV.


4.3 Regarding the Judiciary the Technical Committee has:
• been following and advising on the construction of a new court house in Burrel
• arranged for training of magistrates and prosecutors in Dibra. This continuous training programme was evaluated and its continuation was planned in a seminar held by the end of September 2001
• a baseline study of the courts in Dibra has been planned. Cooperation from the Danish Judiciary Administration Center has been secured. A draft project document is included as Annex V. A first draft for the time schedule is found in Annex VI.
• Assistance for the development of court inspection is part of the Danida Legal Sector Programme, but the function of the judicial inspectorate of the High Council of Justice vis a vis the Inspectorate of The Ministry of Justice is yet to be clarified. A new law on the organization and function of the High Council of Justice has still not been passed. The Director of the Inspectorate of the High Council of Justice has described the present situation in a memorandum dated June 2001. The memorandum is found as Annex VII.

Danida has given some assistance to the establishment of the Inspectorate but further assistance is not to be given before the uncertaincy regarding the functions is cleared.


5. The Technical Committees plans for the future.

The Technical Committee was gathered on a retreat 12-13 October 2001 in order to evaluate the achievements reached so far and to plan for the future. The minutes for the retreat is included as Annex VIII.

It will be seen that The Technical Committee has decided to embark on 3 subjects:
• assistance to the High Council of Justice Inspectorate to analyse the declarations of assets, magistrates are obliged to send to the inspectorate each year.
• implementation of the existing - but not used - rules regarding community service
• consider ways to avoid the rapid and not always well prepared changes in law and institutional structures, or at least to minimize the destructive consequenses of the rapid changes, e.g. by keeping the institutions well informed on the changes.


6. Considerations regarding the Judiciary.

6.1 Readiness for change.

My meetings with the President of Albania, the Minister of Justice, the President of the Supreme Court and the Director of Prosecutions showed that there at the highest level is a strong will for strengthening of the legal sector as such and the Judiciary in particular. It is recognized that the development of democracy and a market economy is all dependent on the existing of a strong, independent, professional and incorrupt judiciary. The shortcomings of the existing Judiciary is well known.


6.2 The Technical Committee as catalyst for reform.

The Technical Committee is through its composition and its secretariat well suited to provide the forum for negotiation between the main interestgroups and to be the creative element in the strategic planning process for the development of the Judiciary. The Committee has accepted this role as "think tank".

It is easy to see that there is an exellent co-operation between the Chairman of the Committee and the Secretary, and that the working relations between all the members are good. The Committee has developed a clear understanding of its mission. An important indication of the interest the various parts of the legal sector now shows in the committees work has been, that the Head of the Directorate of Codifications of the Ministry of Justice, Mr. Dvorani, has asked to be informed personally regarding the work of the Committee and its future activity.


6.3 The SWOT analysis.

Major part of my consultancy was to facilitate a work shop where members of the Technical Committee, together with other key-players in the development of the Judiciary, were gathered to discuss the future work of the Committee.

A summary of the workshop is included as Annex IX.

During the seminar the top people in the legal sector were able to pin-pointing the areas in which more radical improvements are needed.


6.4 Statistics.

The Director of Prosecution during our meeting informed me about the steady decrease in criminal acts investigated by the prosecution service. From the level of 12.000 -13.000 a few years ago the number of cases is now down to around 9.000. Street crimes like robberies and violence is not any longer common in Albania. The big problem now is the increase in organized crime, including traficking in persons and narcotics.

The President of the Supreme Court has informed me that according to the latest statistics (cfr. Annex VII) each magistrate in the district courts in average prepares 126 cases in a year. It is thought that it will be possible to increase this number but the problem is that the workload is very uneven.

The statistics for the courts for 1999, 2000 (both criminal and civil) and the first 6 months of 2001 (criminal cases only) are included as Annex X, XI and XII.

The statistics show that the number of criminal cases at the district level is less than 6.000 and the civil cases less than 30.000. It seems also that less than 50 % are upheld on appeal. Furthermore the statistic for 1999 indicates that only 60 % of the civil cases are disputes with conflicting parties. 40 % are issues of various certificates (property, inheritance, etc.) Out of the cases with conflicting parties about 20 % are divorces, and a high percentage of the remaining cases are property cases connected with reprivatization. The conflicts of this type is believed to be less in the future.

In comparison it could be mentioned that The Foundation for Mediation and Reconciliation of Conflicts (AFCR) in 2001 expects to solve more than 2000 conflicts. Which means that AFCR alone is handling a case load of about 10-15 % of what all the district courts together are handling.

Regarding alternative dispute resolution (ADR) it should further be mentioned, that the World Bank is in the process of introducing arbitration and mediation in commercial cases. AFCR is interested in participating in this arrangement.


6.5 Criminal procedure rules.

It has been a hindrance for effectiveness of the district courts that panels of 3 magistrates are used in most cases. The system has been modified recently, so that cases regarding crimes with maximum sentences of imprisonment of 7 years (including ordinary theft) now are handled by only 1 magistrate. According to the Director of Prosecution this means, that approximately 40 % of criminal cases are handled by 1 magistrate, whereas 60 % still requires the participation of 3 magistrates.

As mentioned under point 6.3 it is a problem that the workload of magistrates in the various courts are very uneven. But it is due to the panelsystem necessary to have a minimum of 3 magistrates available in each of the courts.

In order to increase the efficiency of the court system you could:
• reduce the number of district courts (the President mentioned that such a reform, where magistrates visit the minor places "on circles", is considered)
• make more cases to be handled by only one magistrate (the Director of Prosecution do not believe that that would imply more corruption in the district courts)
• lower the maximum of certain offences (the Ombudsman and the President of the Constitutional Court indicated their interest in having an international seminar on sentencing policy, where the possibility of depenalisation would be a theme).


6.6 Civil procedure rules.

It is known that the magistrates in the district courts not are supported by clerks or other well-trained staff. They have only secretaries who assist in typing. That means that all the work also regarding issuing of certificates etc., is left to the magistrates themselves.

This gives a wide potential for improvement in efficiency by changes in staff-structure. The Director of The School of Magistrates has during our meeting indicated, that the school is prepared to develope a training programme for staff members as part of a development strategy for the Judiciary.

The basis for such a strategic plan should be provided by the baseline study of the district courts in Dibra and the Appeal Court in Dures.

A strategic plan should include financial consequences. If savings occurs it should be negociated with the Ministry of Finance and the Ministry of Justice to allow the Judiciary to benefit in its own budget. The level of wages are too low in the Albanian Judiciary. In other countries donors have recommended that the wages for Magistrates are increased as an important weapon in combat of corruption.

Another issue which - in order to increase the efficiency of the court system - should be considered, is the introduction of realistic court fees. This will not least be of interest in regard to the high number of cases which goes on appeal. But, then again, as long as the number of cases changed on appeal is as high, as it is at present, it is not justified to be too restrictive in allowing appeals.


6.7 Higher professional level of magistrates.

The President of the Supreme Court stressed during our meeting, that a pre-condition for radical improvements of the system will be a hightening of the professional level of the judgements of the lower courts.

A continous training programme for the magistrates is as already mentioned planned by the Magistrates' School. A draft programme is included as Annex III. Already a continuous training programme has as part of the Danida programme been instituted for Magistrates and Prosecutors in Dibra. It is hoped that the base-line study will find ways objectively to evaluate the outcome of this activity including to what degree the local population (and local mass media) has been aware of the efforts and possible improvements.

The Inspector of the High Counsel of Justice are to evaluate the performance of each of the magistrates. Such an evaluation is on-going and the results is to be presented to the High Council of Justice in the beginning of 2002. This disclosure of underperforming judges are expected to contribute to the necessary strengthening of the system.


6.8 Execution of civil judgements.

Statistics indicates that only a fraction of civil judgements are executed. The Council of Europe is engaged in a project on improvements of the Bailiffs Office. The Technical Committee has decided to follow this issue and the committee is ready to assist as needed.


7. Considerations regarding AFCR.

7.1 As mentioned in my ealier report on my mission to Albania 27th September - 6th October 2001 the volume of cases solved by the Albanian Foundation for Mediation and Reconciliation is increasing. The number is foreseen to pass 2000 this year. The foundations progress report has now been send to Danida. A copy is attached as Annex XIII.


7.2 During the board meeting on the 24th November we went through the recommendations I had given in the earlier report. Action has already been taken on most points.

The press-relations will be strengthened. A person who is Programme Editor in the State TV has accepted to assist. A number of TV-programmes are under preparations. AFCR's magazine will in the future be more directly focused on the activities of the Foundation. The next two issues of the Magazine will contain the lecturers from the seminar on Mediation in Courts, arranged by the Council of Europe and the Magistrates' School on the 15th September 2001. Most of the Albanian lecturers were from AFCR. (Judge Jes Schiψler participated from Denmark). The future budget of the magazine will be somewhat reduced in order to give place for a monthly newsletter of 4-8 pages. The newsletter will be published both in Albanian and English language. It will contain a list of upcoming AFCR activities.

Awareness-campaigns focusing on Magistrates and Prosecutors will continuously take place where mediation-centers are operating.

More consultative Boards as the one established in Burrel is considered.

An agreement on co-operation has been signed with other Albanian institutions working in related areas:
• Tirana Legal Aid Service
• Legal Aid Clinic of the Tirana Law Faculty
• Womens Legal Center
• Institute for Mediation and Democracy
• Magistrates' School's Department of Mediation

7.3 The most important recent development is the introduction of a systematic quality control.

Different groups of Board Members are evaluating 30 cases chosen at random from Shkoder, Vlore and Tirana. Until now 21 cases has been scrutinized. Meetings have been held with the parties who have been involved in the cases and the outcome has been discussed with them. The results will be compiled in a report, but it is already clear that it will be highly encouraging. As a result of this exercise a guideline to be followed by all mediators will be published.

A structure for the future quality control has also been decided upon. The co-ordinator of each of the Mediation Centers will control the cases solved by the mediators in the area of the center. All cases will then be send to the headquarter where the co-ordinator will make his own evaluation. Finally, also the Board will be given the opportunity to monitor the adherence to the guidelines.

Whereas AFCR in all aspects is developing well, it is still uncertain how its financial situation will be by the end of 2002, when the Danida Transitional Aid Programme according to plans is terminated. The recommendations in my earlier report on this problem are agreed upon by the Board. It is tentatively planned, that I visit Albania again in April 2002 to assist in clarifying the financial situation.


8. The Ombudsman.

Contrary to what is the case in most other countries, the Albanian Ombudsman handles complaints regarding the Judiciary and the Bailiffs Office. The Ombudsmans annuary report for 2000 shows, that the institution has treated 28 cases regarding district courts, 19 regarding courts of appeal, 10 regarding the Supreme Court and 67 regarding the Bailiffs Office. In quite a number of cases the Ombudsman has found the complaints justified, and failures in the procedures have been corrected. The Ombudsman has stated that he is fully convinced that it is relevant to propose various amendments or supplements in the procedual codes. Oppinions will be adequately submitted to the bodies entitled to law-making initiatives.


9. Recommendations.

9.1. The Technical Committee has already decided to invite a highly regarded representative of the Bar to participate in the committees work. Since the Ombudsman deals with complaints regarding the Judiciary and Prosecution service, also a ranking representative of that institution should be invited to participate.


9.2 The result of the SWOT analysis should be further discussed in the Technical Committee.

Besides adding execution of civil judgements to the workplan the Technical Committee should consider how the Management Information System could be improved. The present statistics are not informative enough and there seems to be no tradition in the Judiciary for how to use the information for regular adjustments in the system. A first step could be to study whether the Presidents of the District Courts and Appeal Courts at all use the information in their management of each of the courts.


9.3 The Technical Committee is an example of an inter-agency cooperation at the central level. But there is also a need for such a co-operation on local level as well. In other countries the Presidents of District Courts have initiated such local co-operations. A paper on the advantages with such an arrangement is published by Penal Reform International, London. The report is included as Annex XIV.

The Technical Committee should take an initiative for such an arrangement in Dibra. The local Mediation centers and Legal Aid Clinics should be invited to participate.


9.4. The baseline study in Dibra and Durrλs is planned to earn both a short-term purpose of producing a manual for the administration of courts and to be the basis for more long-ranging changes in the court structure (see point 6 above). It is essential that this double function is understood by all who are engaged in the study.


9.5 The training programme for Magistrates and Prosecutors in Dibra as well as the continuous training programme of The Magistrates' School should be used as a tool for the development of the system, not just for the teaching in existing laws and rules. Future Danida support to the school should be used only for this development purpose.


9.6 An important element in the strengthening of the professionalism of the Magistrates and Prosecutors at district level is the 2-weeks course held in Denmark at the end of the students second year at the school. The Magistrates' School has a strong wish to see this arrangement repeated in year 2002. It is recommended, that this request is handled positively.


9.7 The 4-weeks course for Albanian lawyers supported by the Danida Fellowship Center held in September was undoubtful a success. But the Director of the Magistrate School - who participated in the selection of the 15 candidates - has mentioned, that those magistrates and prosecutors who are not sufficiently good in English have complained, that they for only this reason are excluded from selection. As a response to this criticism the Director recommends that the course is repeated with translators.

Unfortunately, I don't think that this high level course will be well suited for participants who are not able to communicate directly in English. So, unless it is possible again to select a group of well qualified English speaking candidates, I cannot recommend this course to be repeated.


9.8 It is recommended that the Technical Committee considers the suggestion of the Ombudsman and the President of the Constitutional Court to arrange a seminar in Albania on sentencing policy. Such a seminar should be arranged in co-operation with the Council of Europe, who probably would be able to cover the costs. As alternatives to imprisonment - such as community service - could be expected to be an important issue, it is recommended to draw on the international experience of Penal Reform International (Main offices situated in London and Paris).


9.9 The Technical Committee is recommended to assist the Foundation for Mediation and Reconciliation of Conflicts (AFCR)in calling for a meeting, where all donors and institutions who have supported AFCR should come together and discuss the possibilities of maintaining and developing the institution. Given the possibility, that the Danida support is terminated by the end of 2002. It would be a considerable extra burden for the Judiciary if the cases now solved by mediation out of court, in the future should be handled by the courts. Such a meeting should not be held until the seminar proposed under point 9.8 has taken place.


10. Follow-up.

It was tentatively agreed with the Board of the AFCR that my next visit should be in April 2002. I will plan for a visit 22nd - 28th April 2002.





Annex 1

ROYAL DANISH EMBASSY, TIRANA

11.10.01

Terms of Reference for Consultancy on Promotion of Relevant Activities within Legal Reform and Administration of Justice Support Activities in Albania


Background

To be filled in by the Embassy...


Objectives

The overall objective of the consultancy will be to assist in the legal reform activities.


Scope of Work

The work shall comprise, but not necessarily be limited to the following:
• To assist in the further development of a strategic planning process for the Judiciary considering the support given by other donors.
• To assist in establishing a comprehensive work programme for the Technical Committee, and in this regard to work as a resource person in a workshop to be held during the consultancy.
• To review and comment on plans for a Base Line Study on Courts in the DIBRA region, selected as a priority and test area for the legal project.
• To review and comment on the use of other penalties than fines and imprisonment, e.g. community service.
• To comment on the possibility of making further use of the yearly declarations over income and assets that judges are obliged to send to the Inspector of Court under the High Council of Justice.
• To review and comment on further use of Alternative Dispute Resolutions as mediation and arbitration, and in this regard on the possibility of harmonising the work of the Danida supported Foundation for Mediation and Reconciliation of Conflicts with World Bank plans regarding mediation and arbitration in commercial cases.
• To give advice on initiatives suited to raise public confidence in the Judiciary.


Output

The consultant will prepare a report with his findings and recommendations according to standard demands for this. A first feed-back should be given to the Embassy and the Legal Sector Adviser before leaving Albania.


Method of Work

The consultant will work in close co-operation with the coordinator of the Danida legal project, the locally stationed legal adviser of the project, the Albanian Judiciary, including the President of the Supreme Court, the Chairman of the Technical Committee and other members of that committee as well as other legal sector stakeholders.


Consultant

High Court Judge Hans Henrik Brydensholt


Timing and Reporting

The consultancy will take place in Albania, 20-26 November 2001.

A written report should preferably be made before 15th December 2001.


Sψren Knudsen in Tirana, 11.10.01





Annex 2

Danish Legal Sector Adviser
20 November 2001


Programme for Mr. Brydensholt's Mission in Tirana 20-26 November 2001


Tuesday 20 Nov.
12.50

Arrival at Rinas. Transportation to Tirana International Hotel
14.30 Briefing with SSA
15.30 Meeting with Mr. Rasim Gjoka
17.00 Meeting with Mr. Grunnet and Mrs. Ibrahimi, CoE
19.30 Election evening with Danish expatriates

Wednesday 21 Nov.
9.30


Meeting with Ms. Schaar, ABA-CEELI
12.00 Meeting with Head of Codification Directorate Mr. Dvorani
16.00 Meeting with Mr. Artan Hoxha
17.00 Meeting with Chief Justice Mr. Kondi

Thursday 22 Nov.
9.45


Meeting with Ms. Imholz, OSCE
11.00 Meeting with Mr. Gilles Lacan, CoE
13.30 Lunch with Sψren Knudsen
15.00 Preparation for workshop

Friday 23. Nov.
9.20


Conference by Institute for Democracy and Mediation
10.00 Meeting with Minister of Justice Mr. Sokol Nako
12.00 Meeting with Mrs. Fullani and professors of Magistrates' School
14.00-18.00 Workshop with the Technical Committee and other interested parties

Saturday 24 Nov.
10.00


Meeting with Mr. Rakipi
11.00 Board meeting in AFCR

Sunday 25 Nov.
12.00


Lunch with Advocate Perparim Kalo and Ardiana Kalo, TLAS
18.00 Meeting and dinner with People's Advocate Mr. Dobjani

Monday 26 Nov.
9.00


Meeting with President of Constitutional Court Mr. Abdiu
10.15 Meeting with Mr. Ibrahimi and Mr. Dhima, IPLS
13.00 Meeting with President Mr. Meidani






Annex 3


INTERNATIONAL AND COMPARATIVE LAW (Code A)

THE INTERACTION BETWEEN NATIONAL AND INTERNATIONAL LAW

Course No/A0l

Instruction Coordinator: Marta Onorato, Alion Cenolli

Length: 2 days to be repeated into 2 different sessions

Sessions: 9-10 July 2002 and 11-12 July 2002

Type: Seminar - Study session

Trainees: Judges (60) and prosecutors (20)

Course Description: This course will provide participants with an overview of the general principles governing the relationships that exist between national and international law, including the application of treaties and customary law, the self-executing character of international law, and the legal effects of acts of international organizations on domestic law (with an emphasis on human rights). In addition, the course will also survey the provisions of the main international treaties to which Albania is a parly. The course will also explain the basic structure, function and interrelationships of various European courts and systems of justice.


GENERAL LAW AND PROCEDURE (Code B)

JUDICIAL REASONING AND CASE DECISION WRITING

Course No. B01

Instruction Coordinator: Stavri Ceco, Vangjel Kosta, Bashkim Dedja, Sokol Berberi

Length: 2 days to be repeated into 2 different sessions

Sessions: 17-18 April 2002 and 21-22 May 2002

Type: Seminar - Study session

Trainees: Judges (60)

Course Description: This course will provide participants with instruction in legal reasoning, principles of statutory interpretation, use of higher court decisions as legal precedent, and the use of clear and precise legal writing in the production of judicial decisions.


CIVIL AND CIVIL PROCEDURAL LAW (Code C)

PROPERTY LAW

Course No. C01

Instruction Coordinator: Mariana Semini, Dashamir Kore, Valentina Kondili

Length: 3 days to be repeated into 2 different sessions

Sessions: 19-21 February 2002; 12-14 March 2002

Type: Seminar - Study session Trainees: Judges (60)

Course Description: The course will discuss issues related to different ways of protecting the right of property such as, traditional lawsuits like revindication lawsuit, the possessor's lawsuit on cessation of infringement, (article 312 of Civil Code), restoration in possession (article 313 of Civil Code), lawsuit on indictment of a new construction and the potential damage caused by it, (article 303 of Civil Code), lawsuits of recognition of the property right and of the joint property, cases of challenging the decisions of the Commission on Property Restitution etc,. Positive prescription will be one of the main topics of the course to be discussed the second day of it. The third day the course will focus on the concrete cases identified in court practice concerning the registration of immovable property in the relevant offices.


CREDITOR/DEBTOR RIGHTS AND OBLIGATIONS

Course No. C02

Instruction Coordinator: FMI/EWMI

Length: 3 days to be repeated into 4 different sessions

Sessions: 12-14 November 2001; 15-17 November 2001; 19-21 November 2001; 22-24 November 2001

Type: Seminar - Study Session

Trainees: Judges (90)

Course Description: This course will provide participants with instruction in the legal principles relating to creditor/debtor relationships, including the enforcement of loan agreements and the remedies available to creditors in the event of debtor default.


CONTRACT AND TORT DAMAGES

Course No. C03

Instruction Coordinator: Mariana Semini

Length: 2 days course to be taught in 1 session

Sessions: 9-10 May 2002

Type: Seminar - Study session

Trainees: Judges (30)

Course Description: This course will provide instructions about the following:

First Day,
- Meaning of damage and conditions under which a remedy is provided;
- Elaboration of the judicial practice to clarify the difference between liability on contractual damage and liability for payment of such damage;
- Damage in tort and various types, damage caused by minors and by persons on custody, damage caused by employer;
- Liability of representation, liability on damage caused by animals, by dangerous activities, and environment liabilities;
- Product liability, unfair competition, liability;
- Liability of libel publications;

Second day,
- Moral damage and its liabilities, criteria of evaluation of the moral damage;
- Damage to health, to honor, and personality;
- Return lawsuit and joint obligations. Types of remedies and calculation of damage.

PROCEDURAL STEPS OF THE CIVIL TRIAL

Course No. C04

Instruction Coordinator: Thimio Kondi, David Hamilton (FMI/EWMI), Stavri Ηeηo, Vangjel Kosta

Length: 2 days to be repeated into 2 different sessions

Sessions: 10 -11 December 2001 and 12 - 13 December 2001

Type: Seminar - Study session

Trainees: Judges (60)

Course Description: This course will provide participants with instruction in the procedural steps of a civil trial at the first instance court with a special focus on the issue of managing the evidence. More specifically this course will focus on chairing the civil process by the judge, preparatory sessions, measures for securing the suit, rules of collecting evidence, use of experts in the trial, interrogation of witnesses etc.


CRIMINAL AND CRIMINAL PROCEDURAL LAW (Code D)

INVESTIGATIVE TECHNIQUES

Course No. D01

Instruction Coordinator: Arben Rakipi, Thoma Jano, Artan Hoxha, Ilir Panda, Nicola Lettieri

Length: 1 session of six days divided into two parts

Sessions: First part — to be determined; second part - to be determined

Type: Institutional course

Trainees: Prosecutors (40)

Course Description: This course will be taught in two successive components. The first component will provide participants with instruction in modern criminal investigative techniques used in major crimes against persons and property, and major economic crimes. The course will cover such topics as the preservation of crime scenes and the protection of evidence, arrest warrants, searches and seizures, use of scientific experts and evidence (including forensic, ballistic, psychological and accounting techniques), and the examination of witnesses. It will also include discussion of the relationships between judges, the police and prosecutors. In addition, it will include discussion of the standard of proof needed for conviction in criminal cases. The second component will review many of the topics covered in the first component but will discuss them in the context of a focus on international criminal activity and domestic corrupt practices and other economic crimes.


PRELIMINARY INVESTIGATIONS

Course No. D02

Instruction Coordinator: Nicola Letticri

Length: 3 days to be repeated into 2 different sessions

Sessions: to be determined; 18-20 February 2002

Type: Seminar - Study session and Conference meeting

Trainees: Prosecutors (62), criminal law judges (12), and Judicial Police Officers (8)

Course Description: This type of course will tend to provide a significant information on the relations between the prosecutor and the judiciary police during the phase of preliminary investigations. Besides it will provide guidelines to explain the different roles performed by the two above-mentioned parts during the investigations as well as the respective activities and competencies. The course aims at achieving a good collaboration between the two inquiry authorities as well as at avoiding investigative gaps after the acquiring of the notitia criminis. The discussion will regard the different steps of the preliminary investigations such as: a) the exam of the notitia criminis; b) the notitia criminis acquired on autonomous initiative of the prosecutor; c) the collection of the evidence and clues; d) the logical difference between evidence and clue; e) the different kinds of proofs and possible proceeding problems linked to their use and validity; f) the overall management of the proofs in function of the trial; g) the conclusion of the preliminary investigations. Besides this type of course will tend to provide significant information on the different kinds of precautionary measures, personal (coercive and prohibiting) as well as property (preliminary and conservative seizure). Besides the course will offer a theoretical and practice panorama on the requested evidence parameters as well as on the needs linked to the protection of the acquired proofs and of the community.


EXTRADITION

Course No. D03

Instruction Coordinator: Arben Rakipi, Thoma Jano, Artan Hoxha, Nicola Lettieri (CoE), IRZ expert

Length: 1 session of 2 days

Sessions: 25 - 26 April 2002

Type: Seminar- Study Session

Trainees: Judges and Prosecutors (40)

Course Description: This course will provide participants with instruction in legal issues involving extradition and the extension of sovereign criminal jurisdiction to other countries.


FAMILY AND JUVENILE LAW (Code E)

GENERAL COURSE ON THE NEW FAMILY CODE

Course No. E01

Instruction Coordinator: Arta Mandro, Dashamir Kore, Tefta Zaka

Length: 2 days to be repeated into 2 different sessions

Sessions: 16-17 May 2002 and 13 - 14 June 2002

Type: Seminar - Study session

Trainees: Civil Law section judges (60)

Course Description: This course will provide general instruction on the new Family Code, on new legal concepts introduced by this Code, on matrimonial regimes, on protection of minors' etc. This course will also cover such substantive and procedural topics as the obligations of spouses, child custody matters, alimony payments, and the division of marriage property after divorce etc.


BUSINESS AND COMMERCIAL LAW (Code F)

INTELLECTUAL PROPERTY

Course No. F01

Instruction Coordinator: FMI/EWMI, Mariana Semini

Length: 2 days to be repeated into 2 different sessions

Sessions: 11 -12 March 2002 and 13 - 14 March 2002

Type: Seminar - Study Session

Trainees: Civil Law section judges (40)

Course Description: This course will provide participants with instruction in the basic law of patents, copyright and trademarks, especially as it relate to Albania's international intellectual property treaty commitments. Some focus will be given to the underlying economic policy rationale for the protection of intellectual property.


CONSTRUCTION CONTRACTS

Course No. F02

Instruction Coordinator: FMI/EWMI

Length: 4 days to be repeated into 4 different sessions

Sessions: 28-31 January 2002; 1-5 February 2002; 6-9 February 2002; 11-14 February 2002

Type: Seminar - Study Session

Trainees: Civil Law section judges (80)

Course Description: This course will provide participants with instruction in the specifics of contract law as normally applied to construction activity (focussed primarily on the construction of residential and commercial buildings), including standard contract terms, remedies for common breaches of contract, and various standard forms of contract performance assurance.


COLLATERAL LAW

Course No. F03

Instruction Coordinator: Yair Baranes (IRIS)

Length: Iday course to be taught in 1 session

Sessions: 21 December 2001

Type: Seminar - Study Session

Trainees: Civil Law section judges (40)

Course Description: This course will provide participants with instruction in the role of credit in market economies and the ways in which secured financing arrangements in modern legal systems encourage the use of credit, the uses of pledge mechanisms specified in Albania's Civil Code, and the basic structure of Albania's new statutory provisions regarding secured financing.


LABOR LAW (Code G)


LABOR RELATIONS AND CONTRACTS

Course No. G01

Instruction Coordinator: Kudret Cela, Bashkim Caka, Flonja Tashko

Length: 2 days to be repeated into 2 different sessions

Sessions: 10 - 14 [?May] 2002 and 2 - 3 June 2002

Type: Seminar-Study Session AD

Trainees: Civil Law section judges (60) |j

Course Description: This course will provide participants with instruction in Albanian labor legislation. The course will focus on the essential provisions of the Labor Code, the Law on Civil Service, the Law on the Status of the Military Personnel and the Law on the Organization of the Judiciary. Specifically, the course will cover such topics as labor relations, labor contracts, breach of labor obligations, termination of employment as well as the general responsibilities of public and private employers.


ADMINISTRATIVE LAW (Code H)

JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

Course No. HO1

Instruction Coordinator: Thimio Kondi, Sokol Sadushi, Gent Ibrahimi (IPLS)

Length: 2 days to be repeated into 2 different sessions

Sessions: 6 - 7 May 2002 and 20 - 21 June 2002

Type: Seminar - Study Session

Trainees: Administrative Law sections judges (30)

Course Description: This course will provide participants with instructions about the judicial review of the administrative decisions. In other words in this course will be discussed issues such as: the extent of the judicial review of administrative decisions, causes why Albania has adopted this particular administrative legislation, types of lawsuits and their legitimacy, administrative acts that can not be attacked before a court, types of decisions that the judge may issue etc,.


CONSTITUTIONAL LAW (Code I)

FREEDOM OF EXPRESSION/PROTECTION OF PRIVACY

Course No. 101

Instruction Coordinator: Perikli Zaharia, Justices of Constitutional Court, CoE experts

Length: 2.5 days to be repeated into 4 different sessions

Sessions: 23-25 January 2002; 20-22 February 2002; 20-22 March 2002; 17-19 April 2002

Type: Seminar - Study Session

Trainees: Civil Law section judges (100)

Course Description: This course will provide participants with instruction in legal issues involving freedom of oral and written expression, protection of privacy as well as instruction in the interaction of such doctrines with the law of defamation (including libel and slander). The course will also focus on the articles 8 and 10 of the European Convention on Human Rights, on the case law of the European Court of Human Rights and Albanian courts.


OTHER TRAINING FOR COURT PERSONNEL (Code J)

BUSINESS MANAGEMENT AND ADMINISTRATION FOR COURT PERSONNEL

Course No. J01

Instruction Coordinator: FMI/EWMI

Length: 7-day course to be taught in 3 sessions

Sessions: 15-20 October 2001; 29 October-3 November 2001; 5-10 November 2001

Type: Workshop.

Trainees: Court chancellors and budget officers (50)

Course Description: This course will provide participants with an introduction to fundamental concepts of organizational management. Topics will include effective oral and written communication, human resource development, supervision and training, project planning and implementation, and financial management principles.


PROCUREMENT PRACTICES AND PROCEDURES

Course No. J02

Instruction Coordinator: FMI/EWMI

Length: 3 day course to be taught in 2 sessions

Sessions: 22-24 October 2001; 25-27 October 2001

Type: Seminar - Study Session.

Trainees: Court chancellors and budget officers (40)

Course Description: This course will provide participants with basic instruction in the processes by which business and governmental organizations normally acquire necessary goods and services from outside providers in an orderly, transparent and accountable fashion.





Annex 4

The Danish Legal Sector Adviser

DRAFT

27 June 2001


PROJECT DOCUMENT

Streamlining and improving the functioning of the Albanian District Prosecution Service


1. Context

1.1 Background

The overall objective of the Danish assistance to the General Prosecutor's Office (GPO) is to enhance its efficiency by streamlining the organisation, by training the staff and by assisting with a clear division of labour between the police and the prosecutors (the programme document Danish Transitional Assistance to Albania, Vol. 2, April 1999).

One possible approach to this objective is to distinguish between, on the one hand, general functions and capabilities of the Prosecution Service and, on the other hand, specialized functions and capabilities.

By general functions and capabilities is meant the functions, which may be carried out in any District Prosecution Office, and the capabilities, which are needed for performing these functions. This includes the following central areas:
• Internal work procedures
• Case management
• Cooperation and coordination with other prosecution offices - horizontal as well as vertical
• Cooperation with the police and the judicial police
• Cooperation with other public entities
• The practical preparation of a case for the procedure in court
On the other hand, specialized functions and capabilities concern areas, which are mainly dealt with at central level or in the bigger districts, e.g. organized crime, economic crime, drug crime, trafficking, international cooperation.

The support from foreign donors, including Danida, has so far been focused on specialized needs. This reflects the present Albanian reality where there is an acute need for fighting organized and very serious crime. There is, however, also an obvious need for addressing the general needs functions at district level.

Under the new Law on the Office of the Prosecutor in the Republic of Albania from 2000, it is the responsibility of the General Prosecutor to ensure that the Prosecution Service - at all levels and with all levels as integrated parts of the structure of the Prosecution Service - is fulfilling its obligations according to the law. In the present situation with the GPO faced with the challenge of very serious crime, it appears that external assistance is needed in order to fulfil this obligation.


1.1 The Dibra Project

The Dibra project has a double aim. Firstly, it is intended to support the region's legal sector as well as public participation in the decision making process. Secondly, it is envisaged that pilot projects should be carried out in the region in order to provide the central authorities with valuable understanding of how to implement an overall strategy within the sector.

The support to the police in Dibra appears to provide a good example of how both aims can be combined. The support has, on the one hand, encompassed direct assistance at district and regional level and, on the other hand, build up the organizational comprehension at central level thus facilitating the development of an overall strategy concerning certain aspects of police work, e.g. crime prevention.

This experience should serve as inspiration for the support to the district prosecution services. Further, it seems that the support to the two institutions - police and prosecution - may to some extent be integrated into each other. A similar approach to the district courts in Dibra might also prove desirable, thus allowing even further crossover benefits.


2. Project justification

2.1 The need for the project

On the basis of continuous deliberations within the Technical Committee, which assists the implementation of the Danida programme, and between the GPO and Danish representatives, it has been established that there is a need for support to the development of the district level of the Prosecution Service. Some support has been given at this level in concrete areas; however, a comprehensive project has not been developed. Substantial positive consequences would be gained at district level from such a project and in a larger perspective it would also enhance of the functioning of the GPO itself, which is dependent on qualified cooperation with and recruitment of staff from the District Prosecution Service.

It is furthermore a main concern that except for legal statutes there is no formal point of reference for how district prosecutors shall carry out their assignments. Therefore the district offices frequently appear to rely on informal, locally developed routines when carrying out their tasks. This entails a wide range of risks including:
• Non-fulfillment of legal requirements
• Inefficient practices
• Lack of transparency
• In the context of transfer from one district to another: Difficulties of getting accustomed to new and different practices
• Dependency of the younger prosecutors
• Vulnerability towards corruption
The lack of a concise description of uniform procedures also implies a wide range of problems in regard to institutional development, e.g. introduction of management tools, new IT, formulation of training programmes, etc.

A natural approach to streamlining the functioning of the District Prosecution Offices is to perform a comprehensive study of the institutional set-up thereby enabling a detailed description of the work procedures. The study will include continuous observations at the District Offices and interviews with the staff. In addition, meetings should be carried out with other institutions performing tasks, which involve the Prosecution Service, in order to understand how the tasks of the Prosecution Service are related to those of such institutions. The study will provide a valuable insight into the present functioning of the District Prosecution Services, not only in Dibra Region but also in general.

On the basis of the study and an analysis of the results, it will be possible to identify work procedures, which can be improved. Where such improvements can only be carried out together with organizational or legal changes, it will be necessary at least also to analyse advantages and disadvantages relating to such changes as well as their feasibility.

The study will furthermore provide a basis for identifying areas where training is needed. It is foreseen that this will prove to be a valuable tool for the GPO and The Magistrates' School in their future planning of training activities, also with regard to utilizing in the best possible way the training assistance offered by Danida and other donors.

Finally, the project includes the drafting of a manual for district prosecutors and their staff. This manual shall in an easily accessible way describe the procedures within the fields of work, which under the above "Background" were labelled "general functions". Such a manual can naturally only be issued by the GPO. Taking into account, however, that experts from that institution will be closely connected with the project, it is foreseen that the draft for the manual in its content and form shall be a finished document, which can be issued as it is by the General Prosecutor.


2.2 The approach

The project constitutes a support to the GPO and will be carried out in close cooperation with this institution. Essential is the active and extensive participation of the GPO ensuring the utilization of the expertise and experience contained within that institution.

It is important, however, that the GPO is supported in the process for at least two reasons.

First, there is a need for a foreign input as to how the work procedures can be improved, and to envisage new organizational or legal contexts, which will enable and facilitate more efficient procedures. The participation of foreign experts will furthermore bring in new visions and will create mutual beneficial networks across the borders.

It is important that such foreign experts in their own daily work have dealt with procedures and problems similar to those of the Albanian district prosecutors. It is therefore envisaged that the foreign experts themselves have experience from the functioning of the Prosecution Service at district level.

Danish experts have been approached for the task for among other the following reasons:
• To utilize the well-established contacts between Danida and the Danish authorities, not least the Danish General Prosecutor, thereby inter alia ensuring a high degree of commitment on the Danish side
• To facilitate the coordination with other components of the Dibra project (e.g. the police component)
Second, the study and the other outputs will require certain skills relating to project work, such as:
• Overall management of the activities according to the detailed management structure
• Gathering, compiling, and presenting data originating from observations at the District Offices, interviews with the staff etc.
• Drafting of the report
• Preparing a suitable design for the draft manual and coordination of its drafting
A consultancy firm will be hired to perform these tasks (Terms of Reference for the consultancy are attached to this document as Appendix X). If possible, an Albanian firm will be chosen for the following reasons:
• It will have a prior knowledge and understanding of the Albanian context
• To support the development of the Albanian management and consultancy capacity
• To avoid excessive costs
• To minimize linguistic difficulties due to the participation of Albanian and Danish experts and in cooperating with District Prosecution Offices
Experience in project management and institutional development should be given priority in choosing the consultancy firm whereas the legal expertise will be ensured by the participation of Albanian and Danish experts.

The Albanian and Danish experts and the consultants will be referred to as a team.

The study will be carried out in all the three districts of Dibra Region (Mati, Bulquize, and Dibra) rather than just one of the districts. This will ensure a wide range of background knowledge, which will provide the study with a more comprehensive insight into the types of problems feeing the District Prosecution and a wider range of inspiration for how to streamline the functioning of the District Prosecution Offices. In addition, it will ensure a continuation of the coherency in the development of the legal and administrative sectors in all districts of Dibra Region.


3. Objectives

The overall objective is to provide the Prosecution Service with a sufficient basis for implementing needed changes at district level and in the vertical cooperation within the institution. In addition, the project will enable the GPO to issue general guidelines/a manual for the District Prosecution Service for all of Albania.

The immediate objective is to form a well-coordinated team consisting of Albanian experts identified by the GPO, Danish experts from the Danish Prosecution Service and a consultancy firm. The team will obtain insight into the District Prosecution Service and, on this basis, produce the necessary tools for the GPO to achieve the overall objective.

The objective is furthermore to enhance the development the District Prosecutor's Offices in Dibra by the presence of and collaboration with Albanian and Danish experts.


4. Outputs

The following outputs must be provided in order to achieve the abovementioned objectives (the responsible institutions are mentioned in brackets):
• A list of Albanian experts, who will participate in the study of the District Prosecution Service. (The GPO)
• Identification of Danish participants with expertise hi the functioning of the Prosecution Service at district level. (Danida/the Technical Committee, the Danish General Prosecutor)
• Identification of a consultancy firm, which will be responsible for coordinating the study and preparing the report. Terms of Reference for the consultancy. (The Technical Committee)
• A comprehensive report on the functioning of the District Prosecution Service containing
o A detailed description of the tasks of the District Prosecution Service
o A detailed description of the work procedures with appropriate use of graphs and figures
o Identification of work procedures, which can be improved with or without organizational or legal changes
o Identification of areas where there are or - if changes are carried out - will be need for training
• A draft manual for the District Prosecution Service with a comprehensive description of procedures, timing, formulas, etc. including, but not necessarily limited to, the following aspects:
o Internal work procedures
o Case management
o Cooperation and coordination with other prosecution offices horizontally, i.e. with other District Prosecution Offices, as well as vertically, i.e. with the GPO and the appeal level
o Cooperation with the police and the judicial police
o Cooperation with public authorities and other entities
o The practical preparation of a case for the procedure in court
• Issuing of a manual based on the abovementioned draft. (The GPO)
The consultancy firm will be responsible for preparing the report and the draft manual, which, however, will be based upon or reflect the input of the Albanian and Danish experts.


5. Activities

The following activities are envisaged in order to achieve the outputs:
• Identification of Albanian experts based on a dialogue between the GPO and the Technical Committee
• Identification of Danish experts based on a dialogue between Danida/the Technical Committee and the Danish General Prosecutor, possibly carried out through meetings between the Legal Sector Adviser and representatives from the Danish General Prosecutor
• Formulation of Terms of Reference for the consultancy (the Technical Committee)
• A tender procedure to select the consultancy firm (NB: This will depend on legal requirements, Danida policy, and the practical need) and signing of contract (the Technical Committee/Danida)
• Visit by Albanian experts to Denmark in order 1) to get acquainted with the functioning of the Danish Prosecution Service at District Level and 2) to meet the Danish experts, who will participate in the project, and to discuss with them the implementation of the project (Undecided)
• Study of the three District Prosecution Offices in Dibra Region (the Albanian and the Danish experts and the consultancy firm)
• Drafting of a comprehensive report on the functioning of the District Prosecution Service (the consultancy firm)
• Preparation of a draft for a manual for the District Prosecution Service (the consultancy firm)
The Technical Committee/the Legal Sector Adviser will supervise the implementation of the different components of the project and will offer advisory assistance.


6. Strategy

The overall strategy is to create a well-coordinated team consisting of the prosecution experts from Albania and Denmark and the consultancy firm, which will proceed according to an exact and detailed plan. The time schedule is described below under the heading "Project Implementation Plan". It will, however, be the responsibility of the team to prepare the detailed plans within this frame.

Initially, the team will draft a detailed description of the tasks and the work procedures of the District Prosecution Service based on sufficient visits to the District Prosecution Offices in Dibra. It is foreseen that the team - or a part of it - will remain with one or more of the Offices for several days to proper familiarize themselves with the work environment and conditions. Based on the detailed description, the team will draw up a comprehensive overview of the work of the District Prosecution Service.

The present procedures will be evaluated, inter alia to establish whether they fulfil legal requirements.

Based on the observations and evaluation and taking into account the legal basis of the Prosecution Service, the team will analyse how the work and the procedures of the District Prosecution Service may be carried out more efficiently, professionally, and ensuring a transparent institution, which fulfils its responsibilities according to the law.

In this process, desirable legal and/or institutional changes might be identified. Such changes, which may be viewed as realistic, taking the political situation and other contexts into account, should be contemplated.

On the basis of the above outputs, recommendations on how the functioning of the District Prosecution Service may be improved and streamlined will be drawn up. These recommendations should include possible proposals for legal and/or institutional changes. Furthermore, areas where training is or will be needed should be identified. Finally, the manual should be drafted taking into account the overall set-up envisaged in the report. In this phase, it is particularly important that the GPO follows the progress closely and agrees to all suggestions.

Despite this logical chronological approach, it might prove desirable to elaborate on the recommendations and/or the manual during earlier stages. It is therefore foreseen that the project might proceed flexible with regard to the sequence of work.


7. Inputs

The GPO will provide the following input:
• Between two and four experienced prosecutors or other staff- from the General Prosecutor's Office and perhaps from Dibra Region - whose availability hi the project period should be guaranteed, e.g. at least 40 hours per month
• Detailed input for and coordination of training activities identified in the report when this has been approved
The District Prosecution Offices of Mati, Bulquize, and Dibra will provide the following input:
• Active cooperation with the team of experts and consultants.
The Technical Committee will provide the following input:
• Supervision and advisory support.


Danida will provide the following input:
• Funding (estimated at USD 80.000 very tentative! - see below under "Budget and financing")
• Ensuring the participation of Danish experts

8. Assumptions

It is assumed that there is an unambiguous need for a study of the District Prosecution Service. Thus the General Prosecutor's Office has guaranteed that there are no similar projects being undertaken, that there is a significant need for the proposed project, and that there a manual for the District Prosecution Service is much needed, as there at present are no general guidelines of that type.

The cooperation between the different actors - i.e. Danish and Albanian experts, consultants, district prosecutors, and the Technical Committee - is essential. It is assumed that all involved parties will priorities good cooperation very highly. In this context it is assumed that the consultancy firm as part of the overall management of the project, will ensure the necessary contacts and coordination.

It is assumed that it will be possible to make observations and interviews at the District Prosecution Offices and to obtain the necessary data from these. The GPO has ensured such full cooperation.

It is envisaged that the General Prosecutor upon the completion of the project will issue a manual based on the draft provided under the project. It is thereby assumed that his continuous approval is ensured during the different stages of the drafting of the manual.


9. Risks

As mentioned above under the heading "Assumptions", it is assumed that there is a substantive and real need for the outputs of the project. If, however, this assumption does not hold, then Danida will be entitled to decrease the scope of work or - with the approval of the GPO - to redefine the objective, outputs, etc.

Furthermore, the risk of one of the participants - an expert or a consultant - not taking active and constructive part in the work should be considered. Concerning the consultancy firm, this question will have to be addressed in the terms of reference and the contract Concerning the experts, such a situation might be solved by e.g. replacement by another expert.


10. Organisation and administration

(...)


Indicators!!





Annex 5

The Danish Legal Sector Adviser

DRAFT

27 June 2001


PROJECT DOCUMENT

Baseline study and manual on the functioning of the Albanian District Courts


1. Context

1.1 Background

It has been an underlying principle of the Danish Transitional Assistance Programme in Albania to facilitate the development of the judiciary. So far, the support has mainly been aimed at institutions in the legal sector, which are related to the judiciary, e.g. the Magistrates' School and the Inspectorate under the High Council of Justice, rather that the courts themselves.

In April 2001, the Technical Committee was established to assist the strategy making and implementation of the Danish support to the legal sector. The intended focus on the judiciary was made clear by nominating a Supreme Court judge as its chairman.

Right from the beginning of its work, it has been one of the Committee's main priorities to develop, under the so-called pilot project in Dibra Region, a project, which in accordance with the objectives set down in the programme documents (Danish Transitional Assistance to Albania 1999-2001, Vol. 1 and 2, April 1999) will supply the central institutions with input to the ongoing reform process within the judiciary. In addition, such a project shouici also encompass a strengthening of the Region's District Courts.

On this background, the Technical Committee - in close cooperation with the Ministry of Justice - has developed the present project, which focuses on the administrative functions within the District Courts. The project consists of three parts:
• A baseline study of the District Courts in Dibra Region in order to obtain a comprehensive insight into the administration of the courts
• A report with the findings of the study, analysis, possibly recommendations for changes, and detailed description of training needs
• A draft manual to be issued by the Ministry of Justice or with the consent of the Minister to assist the courts in implementing the administrative rules correctly
The project will be implemented as an integrated part of the pilot project in Dibra in accordance with the strategy of a broad support to the legal sector and the surrounding civil society.

It has been a central concern of the Committee that there shall be no overlap with other projects within the judiciary whether Initiated by the Albanian Government or international donors. Therefore, there have been a number of consultations with main stakeholders prior to the formulation of the project.


2. Project justification

2.1 The need for the project

A District Court delivers a range of services, the most important being judicial decisions. The administrative staff of the courts - a.o. the chancellor, secretaries, server of summons - plays a vital role in ensuring that these services are delivered satisfactorily and according to the law.

The Ministry of Justice has issued a Regulatory on the Organisation and Functioning of the Administration of the Judiciary (Order of the Ministry of Justice, No. 1830, of 3 April 2001, published in Fletorja Zyrtare e Republikλs sλ Shqipλrisλ, No. 17, April 2001). According to the Ministry, the administrative staff has had difficulties applying these technical provisions correctly. The Ministry therefore wishes to prepare and issue a manual for the court staff, which, within the legal framework of the Regulatory, in detail and in an easy accessible way describesi how the rules should be applied. In other words, the manual should be a tool, which will enable the court staff to find the answer to how to perform the tasks, which they are responsible for.

It has likewise through numerous consultations with representatives from the judiciary - from central as well as district level - been established that the administrative support for the judges and the cooperation between legal and other staff give rise to serious problems for the judiciary. The concerns mentioned include the following:
• At present a secretary is attached to one or two judges and sits with them in the same room. Their main responsibility is "to take care" of the one or two files lying on the judge's desk. Thus, many resources are not being used to the full extent.
• The communication with the public is very deficient and characterised by a lack of transparency. A specific function in charge of this task does not appear to be established within the present organisation of the district courts.
• The clerks, who take notes during the process, are often not able to cope with the rythm of the procedure in the courtroom. Due to lack of appropriate training and qualifications, the notes are often not accurate and make incorrect use of technical terms.
• The system of notification does not function satisfactory because of multiple deficiencies, e.g. lack of infrastructure and registers. It also appears that an insufficient level of education and commitment plays a role.
• It appears that the judge during the judicial process in the courtroom as well as elsewhere has to perform various tasks, which are purely administrative and which could well be performed by non-judicial staff.
In order to develop a manual for the administrative staff, which meets the needs of the courts, it is necessary first to deliberate how the provisions of the Regulatory should be applied and what difficulties such an application will imply for the courts.

This calls for a baseline study, which will provide a comprehensive insight into the administration of the courts. The result of the study will be compiled in a report also containing analysis and possibly recommendations for changes.

The baseline study should also provide a useful tool for other initiatives to improve the functioning of the courts whether initiated by the Government, Danida, or other international donors. Concretely, the training needs of the administrative staff will be established with detailed descriptions in the report, which inter alia will serve the Magistrates' School in planning future activities.

Finally, the baseline study will provide supplementary data for indicators, which will be used to measure the development in the District Courts in Dibra.


2.2 The approach

The project will support the Dibra District Courts and the Ministry of Justice and will be carried out in close cooperation with those institutions. Essential is the active and extensive participation of the Ministry in ensuring the utilization of its expertise and experience.

It is important, however, that thejudiciary also is represented at expert level. The administration of the courts cannot and should not be viewed as a separate area detached from the judicial functions.

Furthermore, it would enhance the process if there is a foreign input as to how the work A procedures may be mproved and to envisage new organizational or legal contexts. The participation of foreign experts will in addition create mutual beneficial networks across the borders. Naturally, the foreign experts should in their own daily work have dealt with situations similar to those of the Albanian District Courts, especially as concerns the administrative aspects.

Danish experts have been approached for the task for among other the following reasons:
• To utilize the well-established contacts between Danida and the Danish authorities
• To facilitate the coordination with other components of the Dibra project (e.g. the police and the prosecution component)
The Albanian and Danish experts will be referred to as a team.


3. Objective

The overall objective is to enhance the functioning of the Albanian courts, particular at district level.

This immediate objective is threefold:
• To provide the Ministry of Justice with a draft manual for the administrative staff of the courts
• To perform a baseline study of the functioning of the District Courts including proposals for changes and detailed description of training needs
• To enhance the functioning of the judiciary in Dibra
Additional objectives include:
• To strengthen the coordinated strategy of the Dibra Project as regards the involvement the courts
• To develop the relationship between the Albanian and the Danish judiciary

4. Outputs

The following outputs must be provided in order to achieve the abovementioned objectives (the responsible institutions are mentioned in brackets):
• Identification of 2-3 Albanian experts from the Ministry of Justice and representative the judiciary, who will participate in the project (Ministry of Justice, National Conference of Judiciary)
• Identification of Danish participants with expertise in the functioning of the District Court and Court Administration. (Danida/the Technical Committee, the Danish Office of Court Administration)
• A baseline study of the District Courts in Dibra Region covering a number of issues including, but not limited, to the following:
o How is the legal division of competencies and responsibilities?
o How is the actual division of competencies and responsibilities?
o Who performs the various tasks of the court, and when?
o How is the cooperation between judges, chancellors, and other administrative staff?
o How does the administrative staff fulfil their tasks?
o How is the level of training of the administrative staff?
(the expert team)
• The findings of the baseline study will be presented in a comprehensive report, which will include:
o A detailed description of the work procedures
o Analysis and identification of work procedures, which can be improved with or without organizational or legal changes
o Identification of areas where there are or - if changes are carried out - will be need for training
(the expert team)
• A draft manual for the District Court administration with a comprehensive description of procedures, timing, formulas, etc. The manual shall be hi accordance with the Regulatory on the Organisation and Functioning of the Administration of the Judiciary taking into account possible changes proposed hi the report and approved by the Ministry if Justice, (the expert team)




Annex 7

English summary of the Report of Mr. Dhimiter Prifti
Prepared by Iva Zajmi, DLSA/A
Tirana, June 2001


ANALYSIS

JUDICIAL INSPECTORATE OF THE HIGH COUNCIL OF JUSTICE IN THREE YEARS OF WORK

Establishment, purpose, functions, evolution, effectiveness, prospective


I. Background

Introduction. The rule of law in Albania is based on the independence and balance of powers (check and balance). That is there is no absolute power. In the context of the judiciary, especially in the Albanian conditions, where the moral values are in crisis, the legal instruments of control should be strong. In his work every judge has the obligation to respect the context of the law, the "will of the legislator". In the interpretation of the laws the judge is given a certain amount of discretion. This discretion is flexible, depending on how clear the statute is, but not as flexible as to allow an application of the law different from the intention of the legislator. Such events have been recurrent in the last years as a proof of low consciences of the judges. The different application is willful and dictated by subjective interests of the judge. That is why the control mechanisms have a special importance.

Meaning and indispensability of control. There are two types of control over the judiciary: one on the judicial decisions and another on the judges. The first is exercised by the judiciary itself, through the three layers of the judgments, and the second is exercised by an independent body, the HCJ. The two controls are interrelated with each other.

The HCJ has revised cases of disciplinary responsibility when the judge acts clearly against the material and procedural law. The moral crisis of the society is reflected in the institutions. Thus the cases when the judges commit actions in open violation of the law are not rare and have been in the focus of the Judicial Inspectorate.

Judicial reform. The first law reorganizing the judicial system after the political change of the system was Law no. 7574 dated 24.06.1992. Several changes were entered to it until replaced with a new law.

Recruitment of the judges. Article 17 of the law does not provide for the procedure of appointment of the judge but from the content of the law it can be implied that it is a responsibility of the HCJ. Article 19 on the dismissal is to the contrary more specific on the grounds and procedures for dismissal.

The new law on the judicial system, no. 8265 dated 18.12.1997, is the first act to provide the establishment of the Judicial Inspectorate. Before the control of the courts was done by the Directory of Organization of the Ministry of Justice. The new law defines the functions and duties of the inspectorate. Eligible are judges and prosecutors that meet the legal criteria (legal education, work experience, etc). The principle of relative immovability of the judges is provided by law. The law provides also for the disciplinary responsibility of the judges, specified in eight (8) instances, all related to the features of performance of the duty. The disciplinary measures that can be taken vary, from observation, reduction of payment, transfer to another court, up to dismissal from job. The disciplinary process is initiated by the Minister of Justice and performed by the HCJ. With the law of 1998, the duty of verification of these cases relies on the Judicial Inspectorate. In this law the duties and responsibilities of the Judicial Inspectorate of the HCJ and the division with those of the Inspectorate of the Ministry of Justice are very clearly pronounced. Another competence is the assessment of the professional capacities of the judges, which relate to the way they perform the duty. The judges can be dismissed for professional insufficiency.


II. The Law regulating the functioning of the HCJ after the approval of the Constitution is Law no. 8436 dated 28.12.1998 "On the organization of the Judicial Power of the Rep. Of Alb." amended by Law No. 8456 dated 5.11.1999 and Law no. 8656 dated 31.07.00. In addition, the activity of HCJ is regulated by a Regulation issued through Decision no. 8 dated 27.01.1998 of the HCJ. The need to regulate the functioning of the HCJ is met with the new law on the HCJ, which is passed by the Parliament, and now needs the signature of the President to enter in force.


III. Functions of the Inspectorate according to the present law and the Regulation of the HCJ. From 1998 two Judicial Inspectorates have existed. The one under the HCJ has had the power to check the courts and judges and starts the disciplinary process before the HCJ. This activity is not regulated by a specific law but by the 1998 law. The Inspectorate under the MoJ had the power of administrative control over the courts, but its competencies were not articulated very specifically in the law (1998). The need for clearly articulating the competencies of the two Judicial Inspectorates is felt. The Law on the MoJ and that on the HCJ, which are passed by the Parliament on 17 May 2001, after one year from the drafting, without involving the debate they deserve, do this.

With the law of 1998, the disciplinary proceeding against a judge is initiated by the Minister of Justice, and presented to the HCJ by the Inspectorate of the HCJ. The two new laws give the power of inspection for disciplinary proceedings of the judges to the Inspectorate of the Ministry, by leaving to the Inspectorate of the HCJ not very important duties such as: evaluation of professional capacities of the judges; based on citizens complaints, periodic general and specialized inspection of the courts; control of the declared properties of the judges. The reason that the laws are passed so late is because they involve an important moments of the relation of the executive and the judiciary. According to the legislation in force the Inspectors participate also in the appointment of the judges.


IV. In Questions that need to be answered at the approval of the new law on the HCJ, the author refers to some debatable issues arising from the experience of application of the present law: 1. The Inspectorate can take the initiative ex-qfficio for making a control of the courts or for the judges 2. In relation to the disciplinary process before the HCJ, by law, the Inspectorate may take the position of the prosecutor, investigator, or attorney. 3. The request of the Minister for verification of a case, when this has already been done, does not make the Inspectorate start a new verification process. 4. The obligation to present the verification material exists for the HCJ as well as for the Minister of Justice. 5. The HCJ cannot examine decisions of the last instance court, except when their behavior damages the reputation of the judiciary. No dismissal can be given in this case. 6. The Inspectors of the HCJ should be recognized by law the status of a High Court Judge since they control the judges of the first and second levels.

In general, the present functions of the Insp. of HCJ are: 1. General inspection of first instance and appeal courts 2. Verification of complaints of the citizens for the judges 3. Implementation of the system of professional capacities of the judges 4. Verification of requests of the Minister of Justice for disciplinary proceedings 5. Presentation of the materials together with the Minister of Justice to the HCJ 6. Preparation of materials for the HCJ meetings on disciplinary proceeding, appointment of judges, etc 7. It represents of the HCJ to the High and Constitutional Court 8. Verification of declared and undeclared properties of judges and of the insufficiency of their capacities.


V. Effectiveness of the work of the Jud. Insp. of the HCJ

General and thematic inspections have been performed for the first time in March 2001. As a result: 1. The conclusions were discussed in a meeting of the judges of Tirana District Court and the Chairman of the High Court. 2. The Minister of Justice has published the conclusions in 350 copies, same as the number of judges of the first instance and appeal court on a national scale 3. Based on the report of the Inspectorate the Minister started the proceeding against 10 judges, who were given different disciplinary measures by the HCJ: five were dismissed, the chairman of the court was dismissed from this position to remain a simple judge and four others received a warning for dismissal.

Findings from the inspections: 1. Giving low sentences for serious crimes 2. Applying short process for serious crimes 3. Abuse of accordance of the release upon condition 4. Taking security measures for dangerous criminals 5. Change, without any reason, of measures of arrest by imprisonment 6. The property cases involving the state always have resulted in loss of the state 7. Long term procedures, disciplinary and ethics violations. 8. Giving release upon condition "for good attitude" without meeting the legal criteria, e.g. before half of the sentence is served, gave way to the dismissal of 15 appeal judges in Gjirokaster, Fier etc. After disciplinary measures were taken such phenomena happened much more rarely.

Verification of the requests of the Minister of Justice before starting the proceeding is a task of the Jud. Insp. As a resulfbf these requests eight (8) judges are proceeded, five of who are dismissed and 3 are given a warning for dismissal (two appeal court judges in Gjirokaster and one in Korea).

An issue to be discussed. Debatable are the instances when the HCJ can review the last instance court (final) decisions. Because of the need for control over the judiciary, the Constitutional Court has decided in a decision of 30.04.01 that: when such decisions are accompanied by the violations that gravely discredit the position of the judge and the reputation of the courts, the judge should be submitted to disciplinary process. Than a number of cases, where the judge has acted in full will in violating the law, are quoted. Examples involve giving a fine when several years of imprisonment is provided, reduction of sentence from 2 (ace. to law) to 4 times for minors, appropriation of the land of the state through court decision, change of the security measures when none of the conditions is changed, release in advance upon condition, application of short process.


VI. Problems related to the approved Law on the HCJ (no. 8811 dated 17.05.01)

According to the new law: a. The HCJ inspectorate will not perform anymore general or partial inspections in the courts, only if charged with verification task (by the HCJ) b. the role of the inspectorate in the disciplinary proceeding changes from that of the prosecutor to that of the opponent of the Minister of Justice (investigative-defense role). Questions: 1. Can the Inspectorate represent the HCJ in the Joint Colleges of the High Court or at the Constitutional Court? It is difficult since he will have to defend the position of the HCJ, which might be different from his standing. 2. In cases of complaint from the citizens, for judges violations against legal discipline, that cannot be solved by the court, the Judicial Inspectorate brings the complaints to the Minister of Justice. Afterwards, he makes the verification of the process that the Minister presents to the HCJ, without being able to act as an advocate of the case as provided by the law (Art. 16). 3. The Inspectors of the HCJ control the work of the first instance and appeal level, they are experienced and high reputation judges, therefore have a higher status than their subjects of control, equal to the High Court Judges. The law does not provide this, but just contemplates that their salary has the same level as the appeal court judges. Thus, the status is deteriorated, since the previous law (law in force) gives them equal status to the appeal court judges, while this one only equal salary.

Prospective. 1. The new law gives an important tool to the Inspectorate in the fight against corruption, as the verification of declared properties and of the behavior in accordance with the legal requirements. A regulation issued by the HCJ on this purpose is necessary. 2. A second legal obligation is the evaluation of the professional capacities of the judges. A new corresponding structure should be set up, as an integrated part of the Judicial Inspectorate. 3. The Inspectorate has proposed to publish periodically the decisions of the HCJ. The approval of the HCJ is needed for things to get started.

The Inspectorate needs to be supported with training in forms of study visits in the Western and Eastern countries, allocation of means of transportation to fulfill the legal obligation.

The Judicial Inspectorate of the HCJ has played an important role for the control and well-functioning of the courts. The new Law on the MoJ takes the power of control of the courts from the Inspectorate of the HCJ and gives it to the Inspectorate of the executive, by making a step backward in respect to the autonomy of the judiciary and the efficiency of control. If this is certified in the future it might lead to legal changes. Nevertheless, the Inspectorate remains an important tool of control for the work of the judiciary and for the increase of responsibility of its components down to the single judge.





Annex 8



The Danish Legal Sector Adviser

22 October 2001


Summary from the Technical Committee's retreat on 12-13 October 2001


1. The following persons - i.e. the entire Committee - participated in the retreat on 12-13 October 2001 held in Dardhe, Korce:
• Chairman, Mr. Artan Hoxha (AH), Judge of the Supreme Court
• Ms. Arjana Fullani (AF), Director of The Magistrates' School
• Ms. Luljeta Laze (LL), Director of Judiciary Budget Administration
• Mr. Dhimiter Prifti (DhP), Chairman of the Judicial Inspectorate of the High Council of Justice
• Mr. Izet Shameti (ISh), Head of Section, General Codification Directorate, Ministry of Justice
• Mr. Ardian Visha (AV), General Prosecutor's Office, Head of the Division for Foreign Relations
• Mr. Sψren Stig Andersen (SSA), Danish Legal Sector Adviser
• Ms. Iva Zajmi (IZ), Assistant to the Danish Legal Sector Adviser

2. The first point of the agenda, cf. the document of 9 October 2001, which was handed out to the members at the beginning of the retreat, was to evaluate the Committee's achievements so far. The members all expressed general satisfaction with the achievements and found that the Committee is an important and useful forum. The accomplishment of gathering representatives from the various key institutions is alone of big value.

Despite the fact that two of the main activities so far - the planning of a district prosecution project, and a project aiming at a baseline study and manual for the courts - have been initiated and developed within the committee, some members found that most of the activities have been continuations of already initiated projects. This was seen as the reason why the Committee has not been very active in developing new ideas.


3. The Committee then went on to discuss the future of the Committee. All members found that it is of great importance that the Committee continues to function. The big question is, however, what the level of ambition should be. SSA deliberated on the need for making a pronounced decision on the level of ambition of the Committee. Does the Committee see itself function as a think-tank, which can supply the Albanian institutions with valuable input extending beyond what can be implemented under the Danida programme? Or should the Committee limit itself to implement projects, which are already foreseen within the scope of the present budget of the Danida programme? The Committee members all expressed their commitment to function as a think-tank and to prepare a work plan in accordance with this objective.

The following decisions were taken concerning the practical approach:
• A comprehensive work plan should be prepared.
• The members, in particular AH, will participate more actively in the drafting of the documents, which constitute the basis of the discussions within the Committee.
• At every meeting there will be a very brief summary on the development of the various activities.
• At the end of the minutes from the meetings there will be a short recapitulation of the main points.
• At suitable intervals, a document summarizing the main achievements of the Committee will be forwarded to main stake holders, i.e. the Minister of Justice, the General Prosecutor's Office, the Chief Justice, the High Council of Justice, etc.
• The Committee should convene more frequently, e.g. twice a month.

4. The Committee discussed which topics should be covered by the future work plan. As a starting point, the Committee decided to use the idea paper of 11 October 2001, which had been handed out to the members.

The following conclusions were made:
• Assessment of problems facing institutions due to frequent legislative changes
Such an activity is much needed. It was proposed to hold a seminar with high-level participation. The precise objective/expected result would, however, have to be defined.
• Possible ways to support to the Inspectorate under the High Council of Justice in the present situation
This topic was discussed together with the next topic.
• How to use the judges' declarations of assets
This was found to be a topic of high priority. DhP especially stressed the need for assistance, as this is a task, which the Inspectorate does not have any experience with. The objective of an initiative in this field should be to support the Inspectorate in performing the task, the method should be to employ an international consultancy company, and the outcome should be a report, which will form the basis for deciding on the need for further steps, e.g. disciplinary measures.
• Introducing community service as alternative to imprisonment
All members agreed that there is an outspoken need for developing alternatives sanctions to that of imprisonment. The penal code provides for such alternatives but there is no institutional framework for execution of community service. It was agreed that using Dibra as testing ground for executing such sanctions would be an appropriate way of assisting the government in institutionalising community service on national level.
• Land property Commission
The Committee found that this is not an urgent issue.
• Strengthening of mediation in judicial contexts
The Committee found that this issue should be further elaborated after the Conference on mediation arranged by the Magistrates' School together with the Council of Europe.
• A commercial publication centre for legal publications
Asked to do so by the Committee members, SSA elaborated further on this topic. Today, very few Albanian legal books are published. In most, if not all, Western countries, certain publishers have specialized in legal publications. Normally, such publishers have close links to the legal community. This set-up has several obvious advantages. The publisher will, for instance, have the necessary insight for identifying areas of law in which there is a sufficient market for economically profitable, or at least sustainable publishing activities. Further, the publisher will be able to assess whether there are potential authors with the required capacities, and, if the answer is affirmative, who would be most suitable. The principles of market economy are thus the underlining principle of the publishing activities. This, however, does not constitute any unhealthy restriction on the amount and quality of publications. On the contrary, the experiences from Western countries indicate that publication of legal texts is very attractive and profitable, and gives rise to intense competition among various publishers.

AH was of the opinion that at the moment the Official Publication Centre is a suitable institution for ensuring proper access to publishing law commentaries, textbooks, etc.

It was decided that the issue will await a further initiative from the Secretariat.
• Reduction in number of judges (Meta wants 50% cut within state administration and double up on salary. How much could the number of judges be reduced?)


DhP informed the Committee about the number of judges in the three levels. The total number of judges foreseen by the presidential decree is 395; 295 at district level, 52 at appeal level, and 17 in the Supreme Court, whereas the present number of judges are respectively 283,43, and 17. The annual average workload is approximately the same at district and appeal level: 150 cases per judge. The workload is, however, not evenly distributed among the different courts. Presently, there are initiatives underway to geographically reorganize the District Courts.

The Committee noted that several of its activities are centred on improving the effectiveness of the courts, e.g. the project for making a baseline study and manual for the court administration. Presently, it was not found to be a priority to develop other projects focused on reduction of number of judges.
• The challenges facing the Bar Association and its future role
In the opinion of the Committee, this issue should not be given priority at the moment.


5. The retreat was carried out in good spirit and gave the Committee members an excellent opportunity to further develop their already good relations.

A special thanks goes to AV, who had proposed and arranged for the stay in Dardhe.





The Danish Legal Sector Adviser

9 October 2001

Retreat for the Technical Committee from 12-13 October 2001

On 12-13 October 2001, the Committee members will make a team-building and strategy-making retreat in Dardha.

The overall objective is to strengthen the work of the committee. In order to achieve this objective, the Committee will:
• Analyse and discuss the work so far:
1) Have we achieved what we expected?

2) Have we fulfilled the Terms of Reference?

3) Have we contributed Actively to the development of the Albanian legal sector?

4) What is the value of gathering representatives from different institutions?

• Discuss the future of the Committee:
5) What is the future of the Committee?

6) Is there a need for changes in the Terms of Reference and/or composition of the Committee?

7) Make a strategy for the future work

8) Consider the content of a detailed work plan
Based on the discussion of the meeting on 3 October 2001, some ideas to what a detailed work plan might contain is included in a separate, attached document.

Other issues with significant relevance for the work of the Committee will also be addressed, e.g. standards for awarding civil servants for their participation in project work, exchange of information, cooperation, etc. between different institutions with areas of joined responsibility.

Programme

Please note that this is just a rough idea to how we may spend the time. As we go along we will decide on which topics to give most priority and how we want to divide the time between actual roundtable discussions and more informal social activities.

Friday, 12 October 2001

8.00 Departure from Tirana

12.00 Arrival in Dardha

12.30 - 13.30 First session: The aim of the retreat. Start discussion on the work so far

13.30 - 15.30 Lunch + e.g. walk

15.30 - 17.30 Second session: Continuing discussion on the work so far + other issues

17.30 - 19.00 Free time

19.00 - Dinner + ?

Saturday, 13 October 2001

9.30 - 11.00 Third session: The future and needs for changes

11.00 - 11.30 Coffee

11.30 - 13.30 Fourth session: Strategy and work plan

13.30 - 15.30 Lunch + e.g. walk

15.30 Departure from Dardha

19.30 Arrival in Tirana





Annex 9

Danish Legal Sector Adviser

27 November 2001


Summary from the Workshop on the Judiciary on 23 November 2001


1. On 23 November 2001 at 14.00 a workshop was conducted in the premises of the Danish Embassy in Tirana with the view to assess the present situation of the judiciary in Albania. The findings will inter alia be used as input for the Technical Committee in its development of a work plan. For this purpose important representatives of the judiciary and the Ministry of Justice were invited as well as other interested parties (see appendix 1). Senior Legal Sector Adviser Mr. Brydensholt was the facilitator.


2. Mr. Brydensholt made a presentation of the common vision of democracy, which Albania is aiming at. It includes open market economy, law and order, and human rights. These facets can only be attained with a well-functioning judiciary.

The preconditions for the judiciary to achieve this are:
1. Independence

2. Incorrupt judiciary

3. Professionalism: recognized legal standards, effective transparent administration, human resources, working conditions
It is necessary to agree on/formulate a strategy in order to ensure the fulfillment of the conditions. But it is also necessary to have "creative planning", i.e. input from creative persons/individuals. Lastly, political planning is indispensable in order to ensure that the political forces will not obstruct initiatives. These three facets are uniquely united in the Technical Committee.


3. The workshop proceeded with a formulation of strength and weaknesses of the judiciary. They were formulated as follows:

Strengths Weaknessess
• Constitution
• New legislation
• Set-up of institutions within the legal sector in accordance with recognized principles
• International Conventions including ECHR
• Need for the courts
• No competitors
• Independence
• Political will for development
• National Conference of the Judiciary as organ of self-reliance within the judiciary
• Functioning structure for the budget of the judiciary
• Not trusted
• Poor judicial standard
• Unclear structure
• Poor administrative staff
• Management information system
• Ethical standard/corruption
• Dependence of other agents
• Working conditions
• Low pay
• Sub-standard judges
• Too few judges in some districts
• Training (professors)
• Resisting pressure (media, politicians)
• General weaknesses in the sector are inherited from other parts of the public sector
• Career ladder unclear
• Too many judges
• Procedures relating to prosecution
• Land registration
• Distribution of judges
• Uncertainty relating to relationship between budget for judiciary and state budget
• Unclear structure concerning the relationship between court president and chancellor



Similarly the group formulated opportunities and threats for the courts:

Opportunities Threats
• Alternative conflict resolution:
- arbitration
- mediation in court
- mediation outside court
• Membership in EU
• National Judicial Conference
• Technical Committee
• Alternative conflict resolution
• Donor support disappearing
• Organized crime
• Legal changes in structures
• External influence
• Informal and undemocratic rules
• The system is not better than its weakest link: important that no institutions lack behind
• Citizen participation


4. Sψren Stig Andersen introduced a first sketch of 22 November 2001 of how a future work plan for the Technical Committee might be built up. The sketch included three different topics:
• Verification and investigation procedures relating to the judges' declarations of assets
• Community service as alternative to imprisonment
• Problems facing institutions due to frequent legislative changes
The participants raised different questions relating to the verification and investigation procedures relating to the judges' declarations of assets.

As an additional example of a relevant topic for the work plan, Mr. Brydensholt mentioned the functioning of the Bailiff's office. It is a well-known fact that the bailiff in many cases fails to execute the judicial decisions. The Technical Committee will try to formulate a strategy to enable this institution to work properly. The Council of Europe is dealing with this question. Experts are visiting in the end of February or beginning of March 2002 for this purpose.


5. At 18.00 the meeting was concluded and the participants were thanked for their participation and useful contributions.


List of Participants in the Workshop on the Judiciary on 23 November 2001
• Mr. Thimio Kondi, President of the Supreme Court
• Mr. Artan Hoxha, Judge in the Supreme Court, Chairman of the Technical Committee
• Mr. Sokol Como, President of Tirana District Court
• Mr. Bujar Musta, President of Elbasan District Court
• Mr. Ardian Dvorani, Director of the Codification Department in the Ministry of Justice
• Mr. Sokol Pasho, Director of the Judicial Organization Department in the Ministry of Justice
• Mr. Izet Shameti, Specialist in the Codification Department, Ministry of Justice, member of the Technical Committee
• Ms. Arjana Fullani, Director of The Magistrates' School, member of the Technical Committee
• Ms. Luljeta Laze, Director of Judiciary Budget Administration Office, member of the Technical Committee
• Mr. Ardian Visha, General Prosecutor's Office, Head of the Division for Foreign Relations, member of Technical Committee
• Mr. Gilles Lacan, Legal Counsellor in the Council of Europe, Tirana
• Ms. Alba Ibrahimi, Attorney in the Council of Europe, Tirana
• Mr. Ylli Manjani, Legal Counsellor in the OSCE Presence in Albania
• Ms. Gina Schaar, Liason Officer of ABA-CEELI, Tirana
• Mr. Hans Henrik Brydensholt, Judge in the Eastern Division of the Danish High Court, Senior Legal Adviser of Danida Programme in Albania, moderator of the workshop
• Mr. Sψren Stig Andersen, Danish Legal Sector Adviser
• Ms. Iva Zajmi, Assistant to the Danish Legal Sector Adviser




Annex 13


PROGRESSIVE REPORT OF AFCR JANUARY- AUGUST 2001


Introduction

Through the implementation of the strategy during January - August 2001, AFCR has made progressive steps in strengthening the mediation process, increase of the number of conflicts solved through mediation, development of management and mediation capacities of the Mediation Centres and the promotional educational activity in the community and school age groups.

Referring to the plan of activities of the year 2001 the AFCR Board and staff has been mainly focused on:
• In strengthening the mediation process and increase the number of conflicts solved through the mediation alternative.

Training activities organized during the year 2001 in Tirana, Shkoder, Vlora, Berat, Mirdita and Mati served to the strengthening of organizational and mediation capacities of the Mediation Centres.

Court staff, prosecutors and local authorities attended these activities, where the trainers were experts in legal, psychology and sociology from AFCR and other organizations.


• An important step in this process was the three days qualification seminar organized in April in Dhλrmi (Vlora district). The focus of this qualification activity was "Promotion of management skills and capacities of the Mediation Centres".

The AFCR staff, members of AFCR Board, coordinators of Mediation centres and some of the mediators attended this activity. The activity was financially, supported and in expertise on organizational/leadership/project drafting and presentation, etc., provided by the project of the Foundation "Open Society for Albania" (Soros).


• Joint program between AFCR and the Mediation Service in Norway in the fields of training and exchange of experiences in mediation and conflict resolution.

A four days seminar with Albanian and Norwegian experts and mediators; Tirana, March 2001.

Financial support and technical assistance to the Mediation Centre in Rreshen, Mirdita.


• The joint program of AFCR and the Danish Centre for Conflict Resolution organized in training the mediators was accomplished during the first half of the year 2001.

Thus two workshops were organized in this respect; the first was a three days seminar in Tirana through which the Danish experts Vibeke Vindelψv and Steen Clausen provided their experience in the field of training the mediation alternative in conflict resolution. The second workshop was for one week in Danemark, where Danish experts presented to the 19 Albanian coordinators and mediators from AFCR.

The training modules presented in this week long workshop covered a wide scope of treatment of conflicts and conflict situations, mediation alternative and the fields where it can be implemented, as well as the links between peace education and human rights. The presentation and demonstration of concrete cases, the analyses of conflict situations before and after the mediation process, the Danish experience in crime prevention was taken into consideration and highly valued by the Albanian (AFCR) participants in this workshop. (Ref. 1)


• The promotional and qualification activity was present to the community level through the activities organized by the Mediation Centres. Thus, local workshops were organized with the participation of judges, prosecutors, "and local authority staff. These workshops were focused on concrete conflict cases, on making the Law "On Mediation" as operational as possible and in particular in shifting the conflict cases from the court system and prosecutor's office to the Mediation Centres to be solved through the mediation alternative.

It is worth mentioning that during January - August 2001 AFCR has accomplished its objective of setting up three new mediation centres, thus increasing the number of operational mediation centres to 9 throughout the country. After the AFCR Board decision, new Mediation Centres were set up in Kor9a, Gjirokaster and Peshkopi. The process of opening such mediation centres was done through respecting all the regulations previously decided by the AFCR Board, like announcing the coordinator vacancy, selection of the coordinator by a special group set up at AFCR, presentation of terms of reference, finding the respective premises for the offices and furnishing them.

Speaking on the functioning of each of these new Mediation Centres, it is to be noted that the Mediation Centres in Kor9a operates under the financial support of AFCR ("DANIDA" project), the Mediation Centre in Gjirokaster is financed through a joint project of AFCR and the Foundation "Open Society for Albania" (Soros) and the Mediation Centre in Peshkopi, after an application presented by AFCR is financed by the project of the Danish Embassy on Dibra prefecture. The AFCR has already selected the full time coordinators, who have already started their mediation work.

The network of mediators, which is effective in the districts where there is no mediation centre, we have meanwhile opened new networks of mediators in Kurbini, Saranda and Puka and throughout October 2001 we shall select the mediators who will start their mediation activity in Kukes, Elbasan, Durres, Fier and Bulqiza.


• The process of strengthening the public awareness on mediation alternative has been accompanied by an ever enriching activity of coordinators and mediators thus reflected in the increase of the number of conflict cases solved through the mediation/reconciliation alternative to 1121 cases during January - August 2001. Further information on this issue is found at the respective tables.(Ref.2)


• A survey on conflict situation and on the most typical conflicts/disputes to be solved through the mediation alternative was accomplished through February - June period. The data received through this survey composed the subject matter of discussion, comments and reflections presented to the meeting of AFCR Board.

The data and conclusions of this survey served as the basic material for the preparation of the National Conference "Reconciliation & Mediation in the Albanian Society", and the Conference organized with the School of Magistrates and the Council of Europe on "ADR and Mediation in the Albanian judiciary".( Ref.3)


• The monitoring scheme of the cases mediated by the Mediation Centres is another important part in strengthening the mediation process. This activity initiated by a working group composed of members of the AFCR Board was implemented in Shkoder, Mirdita and Tirana. The working group prepared a Resolute and a brief Questionnaire, which are approved by the AFCR Board and will thus help in the monitoring process. (Ref.4, ). The monitoring of the mediation process will cover the other Mediation Centres, respectively in Vlora, Berati and Mati, as well.


• Regarding the decentralization process and giving more autonomy to the coordinators of the Mediation Centres, the AFCR has taken concrete steps, like the decision of the AFCR Board to implement it in the form of a pilot project to two of the Mediation Centres, that in Berat and Shkoder.

The respective documentation was accomplished and we managed to register these two Mediation Centres as separate branches at the respective district court. But, this was only in paper as the new law "On the Activity of non-governmental organization" was enforced in June 2001.

This new law did change the operational and registration procedures of non-governmental organizations; the registration of such organizations should, after this law be done only at the district court of Tirana. So, from the institutional point of view the decentralization process we started is for the moment suspended. From a practical point of view of management, after broad debates, the AFCR Board reached the consensus to leave open initiative to the Mediation Centres in respect to planning of activities and administration. We are working in compiling the respective institutional regulation in accordance with the present legislation.


• The experience of the Mediation Centre in Burrel in respect to the Advisory Board (with the participation of the Mayer, Chief Judge of the district court, district prosecutor, chief of the police station and leader of another local NGO) has been found as an effective model, which we are taking into consideration the possibility of spreading it to the other Mediation Centres. Based on this positive model we are experiencing that the local authorities are with each passing day understanding better and better and valuing even more the role of Mediation Centres and mediation alternative in crime prevention and conflict resolution in the community, thus preventing the aggravation of the conflicts.(Ref.5)

Activities under implementation through the program of ADR mediation September - December 2001
• National Conference on "Reconciliation and Mediation in the Albanian society", September 2001.

• Training seminar with mediators, coordinators and the working group of the program "Peace education and conflict resolution among the school age groups", September 2001.

• Contribution in and participation at the conference organized by the Council of Europe on "ADR and mediation at the Albanian court system", October 2001.

• Round table to present the results and conclusions of the monitoring of the written media on conflicts and conflict situations, October 2001.

• Three days training program on ADR and mediation with the new mediators and coordinators of AFCR, November 2001.

• Three local workshops, at the new Mediation Centres (Peshkopi, Gjirokastλr and Korηa) with the participation of judges, prosecutors and defence lawyers of each respective district, November 2001.

• Two days qualification seminar with the specialists and the network of voluntary mediators of three districts, respectively Peshkopi, Gjirokastλr and Korηa, December 2001.

• Continuous monitoring of the activities organized by the Mediation Centres on community level.

• Showing a series of TV programmes on the public TV channel and the local TV channels on the mediation process, the law on mediation and the activity of AFCR, October - December 2001.



The program "Peace Education & Conflict Resolution among the School age Groups"

Spread of this program (Peace Education & Conflict Resolution among the School age Groups) at the 8-years school system (elementary schooling) was not implemented because the program of the European Commission, which would financially support this program, is postponed to a later time.
• The new group of student mediators of the Law School (University of Tirana) have been selected and trained through a two days training seminar. This training seminar stressed the introduction of the modern concept of mediation, to the Law "On Mediation" and other communication elements, psychology of the people in conflict, etc. the students were as well introduced with the experience of AFCR in peaceful resolution of different conflicts.

• Trainers and experts from Denmark, Norway and USA further trained the working group of the program "Peace Education & Conflict Resolution among the School age Groups" during the first quarter of 2001.

• Organization of the summer school in peer mediation in Kristiansand (Norway) for Albanian and Norwegian teachers and students (August 2001).

• We are under the process of equipping the Mediation Centres at "Arben Broci" secondary school (Tirana), which will serve as a model centre in training, publications and promotion of mediation experience among the students of secondary schools.

• The monitoring of 8 main daily newspapers started in July and will be under way for 6 months, to close in December 2001. The results of the first half of this monitoring process will be presented at a round table and TV program.




Annex 14

The Chain Linked

- a model for inter-agency co-operation



What is Meant by Inter-Agency Co-operation?

By inter-agency co-operation we mean the various ways in which the agencies involved in the criminal justice process can work together to maintain and improve the effectiveness and efficiency of both the separate agencies as well as the administration of criminal justice as a whole.

Of course, all criminal justice agencies have their own specific objectives and mandates. Sometimes and for various reasons these objectives can be conflicting, but in the end all agencies can be expected to work towards the same overall goal: the fair administration of justice for all.

Most agencies are inter-dependent. Often, they cannot achieve their specific objectives without the others and sometimes they cannot even exist without the others. This mutual dependency makes inter-agency co-operation essential. Of course, this is not to say that criminal justice agencies should surrender their independence. Yet it is very well possible to identify certain objectives that agencies share with some or all other agencies!

Lastly, inter-agency co-operation should not be viewed merely as a 'project': by their nature projects are limited in time, purpose and scope. Inter-agency co-operation is an infinite affair, necessary to maintain the Chain. As a matter of fact it should be part of the ordinary day-to-day operations of all criminal justice agencies.


What are the objectives?

The overall objective of inter-agency co-operation is to maintain the criminal justice chain, whilst the more specific objectives of inter-agency co-operation can be manifold.

Co-operation can be used for example to achieve one or more of the following:
• reduce delays in the administration of justice;
• prevent problems for agencies caused by policy decisions of another agency;
• improve case management;
• improve the transfers and retrieval of information;
• improve adherence to constitutional standards;
• decrease overcrowding in prisons;
• generate common statistics;
• develop measures for crime prevention and community participation;
• identify topics for joint training programmes;
• iron out misunderstandings between stakeholders;
• create an open and safe environment in which it is possible to discuss each others performances, strengths and weaknesses.
Agencies should agree explicitly amongst themselves, which objectives are to be set for which specific level and type of co-operation.


Which agencies need to be involved?

In the criminal justice process a large number of more or less autonomous stakeholders have a role to play. One may find:
• an offender or suspect
• a victim or complainant
• the police forces
• the local authorities
• the traditional leaders
• the directorate of public prosecutions
• a defence counsel
• the Bar or Law Society
• the legal aid organisations
• the judiciary
• the probation and welfare service
• the prison service
• organisations for non-custodial sentences
There are a number of differences between these various stakeholders. 'Some are institutional stakeholders, others are individuals who have their own personal interests. Some of the institutional stakeholders are formally established governmental organisations, others are traditional leaders or informal community groups. Some find their reason for existence, solely in the criminal justice process, others perform a much broader spectrum of duties and roles.

The participation of institutional stakeholders in organised inter-agency participation may vary, depending on the issues to be dealt with. One could either think of large groups involving every possible agency, but also of bilateral co-ordination.

For the large groups it is generally advisable always to include the 'core agencies': the police, the prosecution, the judiciary and the prison service.

In some instances the local authorities (the mayor, the council, the traditional leaders) could be added to the core group.


At what level do agencies need to be represented in order to ensure appropriate ownership?

In principle, when developing or improving inter-agency co-operation, it is important to include both the executive staff on the local level and the top management on the central level.

The local representatives are the ones who are most acutely aware of the particular problems in the field. They will also be the ones actually developing and implementing custom-made solutions for those problems.

On the other hand, the policy makers at the top are indispensable as well. Most agencies are to a larger (e.g. the police) or a lesser (e.g. the judiciary) extent hierarchically organised. Therefore, many decisions taken on the lower local level may need the formal approval and endorsement from the top.

Moreover, the top management has its own distinct role to play with regard to inter-agency co-operation. After all, many issues require centralised co-ordination. And naturally, the top management should monitor the performance and achievements of the local representatives.

In other words, inter-agency co-operation should be established at all existing levels to address issues relevant to the specific level.

Sometimes the approach will be horizontal. Sometimes bottom-up - and sometimes top-down.





Occasionally it will be necessary to have representation from different levels, at most times only one level needs to be involved.


What communication mechanisms need to be put in place to ensure proper sharing of information?

In order to co-ordinate on all levels, information should be accessible to all participants. Some information should be actively communicated to all agencies, for other data it may be sufficient to(communicate the very existence of these data.

Mechanisms to communicate include:
• Meetings
• Minutes
• Visits
• Reports
• Statistics
• Workshops
The most obvious and simple way of inter-agency co-operation is the regular meeting of all involved parties. Regular meetings can be planned in advance. An agenda should be prepared and the minutes of the meeting should be distributed to all participants as well as to the top management on the central level.

One potentially problematic issue could be which of the agencies should take lead in convening and chairing these meetings. Since all agencies are more or less autonomous, who should be in control of the inter-agency co-operation and be more equal than the others?

There are various ways to solve this problem: one possibility is a rotating chairmanship. Even the location for the meetings could rotate together with the chairmanship.

Another solution could be to acknowledge the authority of the Judiciary. Usually the constitutional role of the Judiciary is very well defined, and its position is one of the spider in its web.

A last solution for this problem would be to select a lead agency or representative on the basis of seniority or merit.

Whatever the choice will be, it is very important that the decision about the chairmanship is taken in the most transparent manner and is supported by the majority of stakeholders.

Similarly, the agencies need to agree in advance who is responsible for convening meetings and for preparing the agenda en the minutes.

Apart from large general meetings, the establishment of smaller subcommittees could be considered to deal with specific issues. For example, there is no reason to involve other agencies if the topic is the movement of files between the police and the prosecution, unless the concerned parties would seriously disagree about a certain approach. In such cases, the presence of other stakeholders might be useful.

Another simple way of communication is the joint visit or inspection tour. These visits to the working environment of the other involved criminal justice agencies, - particularly to the police stations or the prisons - can be very useful. The visits can improve the knowledge of all agencies about each others working conditions and problems but could also help to maintain or improve the adherence to constitutional standards. Lastly, by sharing some active experiences, these visits may create a team spirit amongst the representatives of the agencies.

One problem that might arise when organising joint visits is the means and costs of transportation and accommodation. In some instances it could be difficult to pool resources either because of the rank or status of the participants or because of the perceived impropriety of joining certain parties. Can a judge travel in a police vehicle? How about the representative of the Law Society? Which seat should the Registrar occupy if the Commissioner of Police is traveling in the same vehicle? These kinds of questions may appear far-fetched, but do need to be addressed in an open manner.

Similarly, the ways in which the restricted resources could be put to use might create problems.

In order to promote attendance, both meetings and visits should be systematically planned and be communicated to all participants well in advance. Fixed schedules (first Wednesday afternoon of each month) could be helpful.

And just like the minutes that should be prepared of all formal meetings, it is equally important that concise reports of the visits are prepared and distributed to all participants as well as to the top management on the central level.

Finally, it is essential that all participants address certain flaws of their brother or sister agencies in a very balanced and reasonable way. Do not remain silent about the mistakes or inadequacies of the peer agencies but do not criticize them too vehemently either.

Apart from meetings and visits, the participants involved in inter-agency co-operation could consider the production and distribution of specific joint reports and statistics. The advantages of joint statistics will be obvious. Discrepancies between the influx and outflow of both individuals and cases throughout the Chain could become more transparent, and the average life span of cases could be clarified when the bottlenecks in the Chain can be identified.

Lastly, if the budget allows, it is advisable to organise regular inter-agency workshops in order to identify the specific objectives for co-operation or to evaluate the activities so far.


Is any legislation needed in order to pilot such initiatives?

In principle no legislation is needed to pilot these kinds of initiatives. The endorsement and approval of the top management level will usually be more important than legislation.

Sometimes certain types of information could be classified or restricted, this however is often not applicable to brother or sister agencies.

On the other hand, whereas most laws do not prohibit the majority of activities regarding inter-agency co-operation, these activities are not compulsory either and they can often only be carried out on a voluntary basis.

Of course it is possible that pilots eventually lead to legislation.

A clear example of this is the Tripartite Consultative Meeting ('the Triangle') at the local level in the Netherlands between the Public Prosecutor, the Police and the Mayor.

While this started as an informal activity in the seventies, it was highly successful and it has therefore now been codified in the Dutch Police Statute as an official compulsory inter- agency activity. The objectives of the Triangle are to co-ordinate the deployment of the police forces for either public order or criminal justice purposes, to inform each other of policy decisions that may also affect the operations of the other agencies and to cooperate with regard to the prevention of crime and disturbances of the peace.


What are the relationships between such projects and the formal, informal and non-formal justice processes?

Inter-agency co-operation is basically an activity of institutional stakeholders in the criminal justice process. Nevertheless, there may be some scope for the involvement of the informal stakeholders. Of course, this will greatly depend on the actual situation in a specific country on the national, regional or local level. For example, in Uganda there is a clear though unofficial understanding that offences are first reported to the local authorities. Cases are thus filtered before they can reach the formal criminal justice agencies. However, this may cause considerable delays and loss of valuable evidence. It might therefore be useful if the police and the local authorities could agree on some guidelines to prevent such problems, while still retaining the appropriate and low cost dispute-settlement activities of these local authorities.


What role do donors play initiating such projects?

As stated before, inter-agency co-operation is not a project. On the contrary, it should be an intrinsic part of all day-to-day operations of the criminal justice agencies.

Of course one could view the development and careful establishment of inter-agency co- operation as a project. However, this is risky: projects tend to attract attention and commitment as long as there are resources available or accessible. Once the project stops, all other things might stop as well. Ways of avoiding such risks should be found before contemplating a project of this nature.

Another issue is whether donors should take the lead in initiating these kinds of activities. Inter-agency co-operation in the administration of criminal justice is essentially based on the voluntary input of institutional stakeholders and individual representatives alike. Therefore, the initiative for these activities should come from these stakeholders and representatives. It is only when well conceived development plans have been prepared that donors could consider ways to support such plans. Even then, support should remain modest and should immediately include counterpart funding in order to guarantee sustainability in the longer run.


What administrative structures have to be put in place to ensure successful implementation of inter-agency co-operation?

Perhaps depending on the type and level of inter-agency co-operation, only few (if any at all) new formal administrative structures have to be put in place.

It is however advisable to establish some relatively informal bodies on each level, each with its own distinct name and role. It should be stressed however, that the decisions taken by these informal bodies could only be enforced through the ordinary decision making structures of each agency.

Thus, it is usually necessary to have an inter-agency structure at the top management level, to deal with general nation-wide issues but also to monitor the performance of lower level structures and to endorse decisions of these lower structures. In principle, once an agreement has been reached at this higher level, most decisions can be enforced by using the ordinary hierarchical lines within each independent agency.

Naturally, good communication is crucial: the top-level should see to it that minutes and reports are produced and that they are systematically distributed to all stakeholders. Equally important is the systematic feedback from the top-level to the local agencies.

Finally, if financial resources are necessary, agencies need to agree about the input per agency but also about methods how to budget, account for and monitor certain expenditures. This might indeed imply some new administrative structures.


Is the entire process personality dependent; is it possible to put in place institutional mechanisms to minimise the role of individual personalities?

It should be acknowledged that the entire process is to some extent personality dependent. As stressed before, inter-agency co-operation can only be developed on a voluntary basis. This is applicable both to the institutional stakeholders and the individual representatives. For the commitment of the institutional stakeholders, some political endorsement may therefore be useful.

For the individual representative, his or her formal participation could be imposed through the internal hierarchy of an agency. However, genuine enthusiasm and an open, innovative mind cannot be forced, yet may be essential in the first stages of developing better inter- agency co-operation.

Some extra commitment may be realised through sensible 'human resource management'. It should be possible to identify some fringe benefits for the individual representatives within the normal personnel policies of each agency.

Another possibility could be to discuss at the top management level the timing of certain local postings and replacements. This is helpful both to prevent premature loss of expertise as well as to tackle possible interpersonal problems at the local level.


How is the success of inter-agency co-operation to be measured? What evaluation points need to be factored into the initial planning phase?

When considering the development of inter-agency co-operation it is important to plan for some scheduled evaluations.

Of course inter-agency co-operation is not a goal in itself. Neither can success be measured by only counting the number of meetings or joint inspection tours.

Another difficulty might be how to attribute results to certain activities.

For example, to reduce delays in the administration of criminal justice is an objective that could be addressed by inter-agency co-operation. Even then, it may not be easy to assess what difference the joint effort has made as compared to the efforts of one single agency.

Something that should in any case be done, is to establish some baseline figures as a tool to specify objectives; only when the average duration of a court case is known, a well defined decrease in time can be agreed upon.

Secondly, an evaluation should not be restricted to quantity alone. An assessment of the quality of the process is important as well.





Uganda: the Masaka Experience


The problems:

In common with many other countries around the world, Uganda is experiencing quite a few problems in the administration of criminal justice.

On the one hand, these problems have to do with the under-resourced position of most criminal justice agencies. Budgets are too small, prosecutors, judges, magistrates and prison officers are too few, staff is often under-paid and not very well qualified, and logistic support is scarce.

On the other hand laws, procedures and organisational structures have often not kept the same pace as socio-economic and technical developments, thus causing or adding to various problems as well.

In Uganda the criminal justice agencies thus have to cope with the following problems:
• Insufficient compliance with constitutional standards;
• Non-adherence to established investigation procedures
• Slow investigation
• Cumbersome file handling and transfer procedures
• Frequent case adjournments
• Cumbersome procedures for case withdrawals
• Overcrowding in prisons
• Disproportionate ratio for remand/convict prisoners.
These problems were described in a number of reports and various recommendations how to deal with them were made. However, nothing really seemed to happen and the separate agencies were inclined to point to their peers when confronted with the lack of improvements within the criminal justice system.


Possible solutions

In August 1998 the top-management of the Judiciary, the Directorate of Public Prosecutions and the Prison Service decided to convene a series of meetings to discuss news ways to tackle these problems. The Police (Criminal Investigation Department), the Law Society and the Probation Service also attended these meetings.

Participants agreed that it was not very likely that the financial position of all agencies would be adequate on the short term.

Moreover, it was acknowledged that by just increasing the amount of money to be spent, problems would not get solved automatically. This was particularly obvious within some agencies that were receiving donor funding: notwithstanding the extra financial input, it turned out to be difficult to achieve certain objectives without involving the other agencies.

The representatives then agreed that improving the co-operation and co-ordination between the criminal justice agencies might offer a relatively fast and cheap solution to some of the problems identified. Of course, no one expected all problems to be solved in this manner. Improvements regarding manpower, accommodation, information technology and transport would still require other approaches. But in many other areas enhanced co-operation and co-ordination could prove very valuable.

It was therefore decided by consensus to develop a pilot initiative geared towards improving inter-agency co-operation.

Participants decided to select one Magisterial District where various techniques could be tested in order to replicate them elsewhere.

The criteria for selecting a Magisterial District included:
• The presence of a Resident Judge, a Chief Magistrates' Court, a Resident State Attorney, a Regional CID officer and a central Prison;
• Proximity to the capital (Kampala) for purpose of monitoring and supervising activities.
After some deliberations, Masaka was selected (120 km distance from Kampala, good tarmac road, all agencies represented on the medium management level)

The next step was to assess the willingness and understanding on the local level: how would the representatives of the agencies feel about the selection of Masaka? Did they recognise the same problems as the top management and were they willing to test new techniques to address these problems? In other words, a purely top-down approach was not considered sufficient when starting such an experiment.

To obtain an answer to these questions, it was decided to organise a three-day workshop in Masaka to which all local stakeholders were invited. Funding for the workshop was provided through the budgets of the donor-funded criminal justice agencies.

The response of the local stakeholders was quite promising. Approximately forty workshop participants representing all local stakeholders carefully analysed the problems in Masaka and selected 'serious delays in the administration of criminal justice' as the central problem in their area. After identifying the underlying problems causing the delays, objectives were formulated for an inter-agency co-operation initiative. Based on the results of the workshop, a small group consisting of all core agencies prepared a proposal for a Plan of Operations.

By then participants had also agreed on a basic organisational set-up:
• An Advisory Board with all top management representatives in Kampala
• A Case Management Committee on the local level in Masaka
After some discussions it was agreed that it was necessary to appoint a paid co-ordinator - a lawyer - on the local level, in particular to prepare the possible replication of measures on the nation-wide scale. In order to make such replication achievable, it was necessary to assess, select and document all feasible and successful measures. This activity would be too time-consuming to be carried out by the representatives of the local stakeholders.

Once appointed, such a co-ordinator could also act as the secretary to the Case Management Committee, could prepare base line surveys and assist in all matters arising out of this new approach. Of course, the decision to appoint a paid co-ordinator implied that more resources beyond the ordinary budgets of all criminal justice agencies had to be found.

It was therefore decided to submit a proposal to the donor community. In the proposal the joint agencies stressed that the funds were required for a short specified period only, in order to guarantee sustainability.

A number of donors responded favourably and decided to follow the good example of the Ugandan criminal justice agencies by establishing their own inter-donor cooperation.

As a result, a co-ordinator was appointed in September 1999.

After this short period of only 6 months, it is difficult to assess the results or to distil the 'do's and don'ts'.
• Is the approach really useful at all?
• Is a paid co-ordinator with his own small budget really necessary?
• Which results can be quantified?
Such questions have to be answered later.

However, it is possible to share some preliminary results:
• Barriers between the criminal justice agencies in the capital have been leveled to some extent. The Advisory Board appears to be turning into a forum in which general policy matters concerning the administration of criminal justice are being discussed in the presence of all agencies.
• Equally, the monthly meetings of the Case Management Committee in Masaka are well attended. They are held according to a fixed schedule, minutes are prepared and distributed to the all participants including the Advisory Board. Local problems are being discussed in detail.
• 600 'deadwood' cases clogging the administrative system of the judiciary and the prosecution were weeded out in a joint simplified procedure, ('prosecution discontinued pending re-arrest')
• Some creative solutions have been developed in respect of the problems in the juvenile justice system by co-operating with the local council authorities.
• Work is in progress regarding the development of certain performance standards for each agency, for instance setting targets file retrieval, for committal, for hearing a case, for judgement etc.
• Preparing a baseline survey has turned out to be more cumbersome and complicated than anticipated. For future initiatives it may be advisable to use specialised external assistance for a rapid assessment survey.
• All input of the representatives has been voluntarily. No allowances have been paid, other then a small remuneration for transportation of participants coming from far (>50km)
• Although inter-agency co-operation initiatives may be personality dependent to a certain extent, the experience in Masaka shows that there are always new enthusiastic participants available.




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