The digital access of the courts in the Republic of Albania.

29/07/2022

They have the same shapes and colors, but also a common shortcoming: as an ordinary citizen, you cannot be informed about judicial processes and judicial decisions on matters of public interest, such as corruption cases. These are the official websites of the district courts. From an observation regarding their content, it is found that they have a superficial information about the trials, statistics or forms of contact, but they do not have information about the court hearings on matters of public interest, nor are the decisions made in these hearings clarified. . This is due to the legal framework that is in force for the protection of personal data, which provides for the anonymity of judicial processes.

Referring to the European Court of Human Rights, all decisions and issues of a public nature, such as, for example, issues related to public corruption, must be open to the general public, to experts and to all interested parties to participate in these sessions.

Consequently, even the decisions can then be published online or can be disclosed as decisions for each court session held. In our case, in the conditions where our legislation does not provide for such a thing, the courts say that they are not obliged to do this and normally they are not based at all on the European and international standards to do such a thing, as long as they do not the legislation requires them.

"The obligations that Albania has taken regarding the protection of personal data, force the courts to anonymize judicial processes and in most cases, because this process requires dedicated resources, which are not available, these decisions no longer appear on the page, causing a minus or a transparency deficit regarding the work of the courts. The courts take decisions of the Republic and as long as these are things that belong to the public, it is senseless that they are missing from the public domain, even if this is the virtual domain on the Internet", says Gert Shella, head of Infocip, who follows closely the work of the Courts.

But for the lawyer Dorian Matlija, Albania has sanctioned in the Constitution, which is also the fundamental law, the right that the decisions of the courts should be public. This is because of the system that our country has chosen.

"In principle, the fact that it limits some data from judicial processes is not considered a violation of the transparency of the courts. But it depends on the system a country chooses. There are countries in the European Union that have chosen the option of courts with limited information. There are other states that have chosen the option of open courts. Albania belongs to the second category. The European Court of Human Rights has taken a different position in different cases. Those states that have kept it as a principle not to have public court decisions, for those cases the Strasbourg Court has been tolerant to the partial lack of transparency. While for countries like Albania, which absolutely have it sanctioned in the Constitution even, that court decisions must be public, for these cases the European Court has taken the position that these decisions must be published, since after all this is also the purpose of constitutional-makers of the respective country", explains Matlija.

 

He goes further as he shows the scheme how it works today with the restriction of data from the courts.

"The idea of transparency of judicial decisions is an earlier idea than the right to information itself, in its modern sense. Courts are therefore called court or courte in different languages, because they were held in open places, they were held in yards, with the idea that they were public trials and everything was done in the open eyes of the public. The same kind of philosophical root is what we have inherited from the European system. In Albania, we have established in the Constitution the making public of court decisions and there is not even a single element that this right is limited by any other institution, except the court itself. This means that, if there will be certain cases where the court will see that it is necessary to preserve the anonymity of certain individuals, it is the court itself that must decide to preserve this. An administrative body, even the Commissioner for the Right to Information and Protection of Personal Data, cannot be empowered to issue instructions for the limitation of this data. The non-publication of court decisions and their anonymization will be based on the instructions of the commissioner and the Ministry of Justice and are in complete contradiction to our constitutional principles. The principle is: everything is transparent, except for special cases that are not transparent. What these bodies have decided is that everything is anonymized, except in special cases of public interest. This is to reverse the whole principle on which the state in Albania and most of the European Union countries was built", Matlija declares.

Undoubtedly, such a situation is harmful to the citizens and ultimately to the judicial system itself. This is because transparency is affected and the credibility of the judiciary is reduced.

"The damage that can come in this particular case is not only in principle, but also has effects in practice. Since the public does not know what is done with the court's decision, there is no possibility to control the court's activity first. Second, the parties interested in a trial would like to know that a trial took place where they could participate as third parties and many other implications that could make it very difficult to realize many other rights, related to the transparency of judicial decisions", argues the lawyer.

Expert Gerti Shella is of the same opinion. In a general assessment, he judges that the official websites of the district courts on the Internet have some basic information, but the lack of publication of data on court proceedings remains a significant shortcoming, as it damages transparency and the public's right to information.

"The websites of the Courts of Appeal and the websites of the Courts of First Instance are of a uniform standard, which were built through direct assistance given by the Ministry of Justice 4 or 5 years ago. They contain sufficient information, in the sense that it is a list of trials, lots, a part of decisions. But the deficiency related to the anonymity of court proceedings remains", adds Shella.

Failure to provide information on judicial decisions adds "grey shadows" to this power, massively accused of corruption and lack of justice.

 

This article was produced under ICEDA project, co-financed by the European Union and implemented by Metamorphosis Foundation (North Macedonia), e-Governance Academy (Estonia), Partners Serbia (Serbia), NGO 35mm (Montenegro), Open Data Kosovo (Kosovo) and MJAFT! Movement (Albania).

This article was produced with the fin­ancial support of the European Union. Its contents are the sole responsibility of MJAFT! Movement and do not necessarily reflect the views of the European Union.