The Concept of Effective Remedies in the Albanian Legal System, Particularly as Regards Meeting its Obligations under the European Convention on Human Rights, (art. 13)

Alimehmeti, Evis (2002). The Concept of Effective Remedies in the Albanian Legal System, Particularly as Regards Meeting its Obligations under the European Convention on Human Rights, (art. 13). MPhil thesis The Open University.

DOI: https://doi.org/10.21954/ou.ro.0000fbde

Abstract

This thesis analyses the application of article 13 of the European Convention on Human Rights in the legal system of Albania. It compares the standards of the requirements of article 13, as interpreted by the European Court of Human Rights and different legal scholars, with the laws and procedures in use in the Albanian legal system. The goal of the thesis is to assess the quality and scope of the legal protection of the right to effective remedy in Albania as provided by article 13.

Although the case law practice of the European Court of Human Rights is not very decisive with regard to the requirements of article 13, the main principles of its application are now identifiable. The analysis of the concept of effective remedies under article 13 as elaborated by Harris, O’Boyle, and Warbrick, provides a very concise scheme of the key elements that this article entails. They identify four elements of the concept of effective remedies. Firstly, institutional effectiveness, according to which, the national authority that will deal with the claim of violation of any of the rights under the European Convention on Human Rights must be independent from the authority allegedly responsible for the violation committed. Secondly, substantial effectiveness that presupposes the possibility of the individuals to canvass the substance of the Convention from the domestic laws, although the Convention may not be part of them. Thirdly, remedial effectiveness, which requires that if the applicants’ substantive arguments are accepted by the national authority that is responsible to deal with their claims, the latter must be in the position to grant them a remedy. Finally, material effectiveness, which requires not only the availability of effective remedies in the national legal system, but also the possibility of taking advantage of it.

Following 45 years of a closed and centralized political regime, where the notion of human rights was a very restricted and almost a nonexistent one, Albania adopted a democratic system of government in 1991. A special constitutional regime was adopted, consisting of a package of constitutional laws, one of which provided a substantial set of guarantees for the protection of human rights and freedoms of the individuals. A proper Constitution was adopted 7 years later, containing provisions considered advanced for the protection of human rights and the status of international law in the domestic legal system. The provisions of this Constitution established for the first time in Albania the institution of the Ombudsman. According to the provisions of the Constitution, the Constitution is the highest legal norm in the country, followed by the international ratified treaties.

The judicial system was also reformed upon the establishment of the democratic regime. It started functioning as an independent branch of the power, where the individuals could address their complaints against wrongful actions of state authorities. The Constitutional Amendment No. 7561, dated 29 April 1992, established a three-tier judicial system composed of District Courts, Courts of Appeals and the High Court. It also established a Constitutional Court, as the exclusive authority to interpret the Constitution.
According to the current legal regulation in Albania, the judicial and administrative bodies are the only state authorities that have binding powers to decide on cases of violations of individuals’ rights. Theoretically, the Albanian judicial system complies adequately with the requirements of institutional effectiveness while the practical aspect is equivocal and does not match completely with the theoretical panorama. Administrative bodies also comply at a considerable degree with institutional effectiveness, as demonstrated in the thesis, although certain procedures of complaints do not fit with the standards of the interpretations of the European Court of Human Rights concerning the notion of independence.

The substance of the European Convention on Human Rights is incorporated in the constitutional provisions and is directly enforceable before the Albanian courts. Moreover, the Convention has a constitutional status, and thus, is the highest norm of the country. Consequently, the principal criteria of substantive effectiveness are fully supported by the Albanian legal system.

Criminal and civil courts have sufficient powers to deal with individuals’ complaints regarding violations of their rights. They can resolve the respective conflicts and also repair the harm occurred, except for the cases where the illegal decision was partially affected by the actions of the individuals. The powers of the Constitutional Court are also remedially effective for the claims of violation of the rights to due process, at the extent that its decisions oblige the ordinary courts to repair the violation committed. The same remedial effectiveness characterizes the powers of the Albanian administrative bodies, while the powers of the Ombudsman are not sufficient to respond effectively to the individuals’ claims of violations of their rights, as intended by article 13.
All individuals may take advantage of the guarantees provided in the legal system. Even those with limited legal capacities may access the legal recourses available in the local and international level, through their legal representatives. However, in practice individuals do not fully benefit from the theoretical guarantees, due to deficiencies in the enforcement of courts’ rulings that impose an obligation on the state authorities to remedy the violations of individuals’ rights. This is a consequence of the gaps in the procedural laws with regard to this matter, and the improper application of the sanctions provided for non-compliance with the courts’ rulings. It constitutes as well a ground for claiming a lack of material effectiveness.

As a conclusion, the requirements of the institutional and substantial effectiveness are implemented to a considerable extent in the Albanian legal system, while the requirements of the other two components, namely the remedial and material effectiveness are not fully guaranteed. The scarce practical enjoyment of the theoretical guarantees is a serious weakness of the Albanian legal system. Especially, the inefficiency of the legal system to secure the implementation of the rulings of judicial bodies could be considered as a denial of effective remedies to the harmed individuals. Consequently, my conclusion is that the features of the legal system of Albania address to a considerable extent the requirements of the right to effective remedy. However, there exist ample grounds on which a violation of article 13 maybe alleged.