The worsening of the situation of the Albanian judiciary is generally paralleled to the tightening of the political and economic civic freedoms in the country. By this perspective the principal objective of the justice reform is to strengthen the citizens’ guarantees, by building-up an independent justice system. This means detaching the new judiciary from the authoritarian historical legacy of being in considerable segments of an appendix of state, economic or political power, and unleash the positive and constructive energies of the free citizens in a democratic system.
The current debate on the independence of the judiciary often seems to be based on the wrong assumption of a dichotomy between “dependence” and “independence”. Yet, it has to be admitted that there will rarely be found in any country in the world, a fully independent or a fully dependent judiciary.
“Independence” comprises many subjective and objective factors, and it is an ongoing continuous concern even in the countries with a stable record of consolidation of democratic institutions. Hence the independence of the judiciary has to be assessed by acknowledging the importance of “regime relativity”, as Christopher Larkins has put it. Thus the difficult ground-breaking task of the justice reform will be to demarcate the boundaries of judiciary and prosecutorial service in relations to politics, that they are intended in part to monitor, in their role as the site of accountability for executive power.
The new institutional governance framework in the administration of justice corresponds to the European trends, but far from being praised for strengthening the institutional independence of the judiciary and prosecutorial service, the rapid introduction of the new governing structures of the justice system, and the recent election in the parliament of the pending vacancies in the composition of the High Judicial Council and High Prosecutorial Council, received criticism of being subordinated to the government, thus the political opposition painted a picture of a justice system that is already politically biased. It seems that the course of the reforms is unsupported by a constructive political environment, being characterized by a lack of consensus between the governing and the opposition parties, which has prompted many observers to complain about the dangers of the political influence in the judiciary. Many of the leading figures of the opposition have declared dead the spirit of the reforms, and as a consequence the restoration of the status quo ante, has become an item of their political agenda.
As the vetting process of the magistrates is ongoing and embarked upon a sweeping purge of the magistrates who lack professional competence, or that will be found in possession of illicit and inexplicable wealth, or having improper connections to the world of crime, it is very important to bear in mind that the most important and difficult task of the justice reform is to restore the trustworthiness of the Albanian public in the judiciary, the central hallmark of the national democratic system.
This process is seemingly more prolonged than the deployment of the new governing institutions of the judiciary and public prosecution, or than just the legislative enactment of formal standards of independence and integrity .This wave of accountability hitting the current judiciary, must be followed by a constructive process of internalization of the sound values of independence and integrity within the justice system. This latter challenge is the real test of the reforms, as it will face the power mechanisms having developed under the communist dictatorship and in the post-communist society, fraught with distortions of rule of law, economic crime and systemic state corruption.
This power mechanisms threaten to bring considerable deviations in the uniform application of the guiding principles of the justice reform. As positive signs of real change are going to be observed, the contradictions and the short fallings will determine the dynamics of the reforms.