1.3 – Social-political “Immunization” of the judiciary

1.3.1 Performance standards

“Social-political” immunity is related to independence as well as the impartiality of the judiciary as a power, but also of a judge as a public official. Structural immunity of the judiciary is an important but not sufficient condition, as the judge’s immunity should be considered a sine qua non condition for the independence of the judiciary. A judge can be influenced during his work, from external influences such as organizations and various interest groups, but also from inside the system, by colleagues or by more successful career judges of higher courts. A judge should not create inappropriate contacts and should not be influenced by the executive power or the legislative. A judge must take every measure to be and to be seen as being free from any such influence. The Judge shall immediately notify the Council and the President, in the event of identifying any interference or any improper influence on him[1].

In the case of Filippini v. San Marino, the ECtHR noted that although political sympathies play a role in the appointment process, this is insufficient to raise doubts regarding the independence and impartiality of judges. What matters to the ECtHR is the fact that there should be no attempt to influence judges after their appointment. In the Sacilor-Lormines case, the ECtHR found that: “the appointment of judges by a member of the executive or by the Parliament does not in itself create a dependence relation, provided that after their appointment no pressure is exercised over them in the exercise of their judicial functions ”

Immunization is related to the formal and substantive, institutional and personal prerequisites of a legal, economic, social and family nature, which enable the judge to exercise his duty, to provide uninfluenced, independent and free-of-conflict-of-interest justice in compliance with the standards of the European Charter on the Statute for Judges, Council of Europe, 1998, as well as the Explanatory Memorandum of the Charter[2].

Being a judge excludes any other political or state activity, as well as professional activity that is carried out in exchange of payment, with the exception of teaching, academic and scientific activities, and secondment to justice system institutions, according to the law[3].

The judge shall enjoy immunity in connection with the opinions expressed and the decisions made in the course of assuming the functions, except where the judge acts based upon personal interests or malice. The salary and other benefits of a judge shall not be reduced, unless:

  1. a) it is necessary to take overall economic and financial measures to avoid a difficult financial situation of the country or other national emergencies; b) the judge returns to the position he held prior to his appointment; c) a judge is disciplined or is considered professionally inadequate, in accordance with the law[4].

Law No. 96/2016 has provided for a number of rights related to the salary of a judge, financial benefits, house loans, the inviolability of salary and other benefits, annual leave, working conditions, etc.[5]

 

 1.3.2 Indicators of achievement  

The formal guaranteeing of judge’s immunity through legal parameters for the organizational infrastructure of exercising the position, transfer and career of the judge. This indicator is related to the independence and accountability. Guaranteeing the economic and social conditions of the judge according to the Law on the Statute of Magistrates. Ensuring appropriate working conditions, which create comfort in exercising the function. Providing the legal terms and criteria to efficiently examine court cases.

Indicators of achievement of the socio-political immunity of the judge should be identified by providing answers to questions such as:

  • To what extent do the Constitution and the Law guarantee the status of judges? What about the other procedural and material laws, how much do they provide for the independence and integrity of the judge?
  • To what extent does the status of a judge act as a guarantee for the profession, the job stability and the continuity of a judge’s career?
  • To what extent does the social-economic remuneration of judges guarantee against any interference?
  • How proper and adequate are judges’ working conditions?
  • How friendly / hostile is the political environment to the judiciary/judge?
  • How vulnerable is the judiciary / judge to political pressure?
  • How vulnerable is the judge to the publication on the media of his/her work and his/her role in a specific case?

 

1.3.3 Measurement method

Analysis of the Albanian judge’s status vis a vis the required international standards[6]. Research regarding the factual situation and level of enforcement of the Law on the Status of Judges in relation to the legal, economic and social parameters guaranteeing this immunity. Evaluation of judge’s vulnerability to interference and corruption, according to GRECO Indexes[7].

 

 

 

 

[1] Article 3/3 of Law no. 96/2016

[2] Website: https://rm.coe.int/16807473ef

[3] Article 143 of the Constitution

[4] ibid, Article 137-138

[5] Articles 11-27 of the Law

[6] Law no. 96/2016 “On the status of judges and prosecutors” is deemed as meeting these standards de jure. However,  CC Decision no. 41, of 16.05.2017 has abrogated several articles; 5, 61, 103, 159 and 169, item 5 of Law no.115/2016 “On Justice System Governance Bodies”, in light of international standards related to guarantees for magistrates in terms of reasons for and appeals  of disciplinary measures.

[7] http://www.coe.int/t/dghl/monitoring/greco/evaluations/index_en.asp.; https://rm.coe.int/greco-rc4-2018-4-raundi-i-katert-i-vleresimit-parandalimi-i-krimit-ne-/16808c439b