Rule of Law and Judicial Independence in Albania

• Autore: Brunilda Bara - Jonad Bara
• Carica: Head of the Judicial and Documentation Department at the Constitutional Court of Albania - Works as a judicial police officer for the Foreign Jurisdictional Affairs Department at The General Prosecution's Office
• Pagine: 23-48

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/6960

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.2:1 2017]

This article is released under the terms of Creative Commons Attribution 4.0 International License

23

Rule of Law and Judicial Independence in Albania

BRUNILDA BARA & JONAD BARA†

TABLE OF CONTENTS: 1. What Is the Rule of Law?; 2. Judicial Independence and the Rule of

Law; 3. Judicial Independence in Albania; 4. Conclusion.

ABSTRACT: We know the importance that the rule of law has for our society, our

democracy, and the kind of civilization we want, but we rarely take the time to think

about what the components of the rule of law are and how we ensure that the rule of

law is maintained. In its most basic form, the rule of law is the principle that no one is

above the law. Legal documents, such as constitutions, national legislation, a court

system, and international agreements, govern a state’s actions towards its citizens.

Governmental authority is legitimately exercised only in accordance with written,

publicly disclosed laws adopted and enforced in accordance with established procedural

steps that are referred to as due process. The rule of law is a very broad concept. It

involves several aspects rooted in democracy. This paper will focus on the

independence of the judiciary as part of the rule of law. Judicial independence means

that judges are independent from political pressures and influences when they make

their decisions, that they should not be pressured by a political party, a private interest,

or popular opinion when they are called upon to determine what the law requires.

Keeping the judiciary independent of these influences ensures that everyone has a fair

chance to make their case in court and that judges will be impartial in making their

decisions. Presidents, ministers, and legislators, at times, rush to find convenient

solutions to the exigencies of the day. An independent judiciary is uniquely positioned

to reflect on the impact of such acts on rights and liberty, and must ensure that those

values are not subverted. The need for an independent judiciary in Albania is of

paramount importance for Albania’s integration in the European Union.

KEYWORDS: Albania; Judicial; Independence; Law; Rule

University of Bologna Law Review

[Vol.2:1 2017]

https://doi.org/10.6092/issn.2531-6133/6960

24

1. WHAT IS THE RULE OF LAW?

The rule of law is a term that is often used but difficult to define. A frequently

heard saying is that the rule of law means the government of law, not men. But

what does this imply? Aren’t laws made by men and women in their roles as

legislators? Don’t men and women enforce the law as police officers or

interpret the law as judges? And don’t all of us choose to follow, or not to

follow, the law through our everyday acts or ommissions? How does the rule of

law exist independently from the people who make it, interpret it, and live it?

1

The easiest answer to these questions is that the rule of law can never

be entirely separate from the people who make up our government and our

society. The rule of law is more of an ideal that we strive to achieve, but

sometimes fail to live up to. The idea has been around for a long time. Many

societies, including our own, have developed institutions and procedures to try

to make the rule of law a reality. These institutions and procedures have

contributed to the definition of what constitutes the rule of law and what is

necessary to achieve it.

2

The rule of law, in its most basic form, is the principle that no one is

above the law. The rule follows logically from the idea that truth, and therefore

law, is based upon fundamental principles which can be discovered, but which

cannot be created through an act of will. The most important application of the

rule of law is the principle that governmental authority is legitimately

exercised only in accordance with written, publicly disclosed laws adopted and

enforced in accordance with established procedural steps. The principle is

intended to be a safeguard against arbitrary governance, whether by a

totalitarian leader or by mob rule. Thus, the rule of law is hostile both to

dictatorship and to anarchy.

3

†

Brunilda Bara is Head of the Judicial and Documentation Department at the

Constitutional Court of Albania, Jonad Bara works as a judicial police officer for the

Foreign Jurisdictional Affairs Department at The General Prosecution’s Office.

1

See Aba Division for Public Education, What is the Rule of Law, Americanbar.Org,

http://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.auth

checkdam.pdf.

2

Ibid.

3

See Christian Fleck, The Rule of Law, LexisNexis.Co.Uk, http://www.lexisnexis.co.uk/en-

uk/lexisnexis-for-barristers/rule-of-law.page (last visited Jun. 17, 2016).