Dear Mr. Jaeger,

I would like first to thank you for the assistance  and support you have provided to our institution so far and with pleasure I am   answering your questions based on the Albanian legislation as well as on our work practice.

1. According to the Law no. 8454, dated 04.02.1999 “ On the People`s Advocate”, the Ombudsman  is not banned   to take up a  case (complaint) which has been brought to a court or referred to the prosecution office. But this is at the discretion of  the People`s Advocate. It is provided in the article 14 of Law no. 8454 dated 04.02.1999, letter “b” of article 18, letter “c” of article 25 and letter “b” of article 31 which  we are sending you attached.

In the letter “ b” of article 31 you can also see that the second section   deals with the complaints against the judiciary. In addition, the Ombudsman can stop or suspend  all proceedings of a case  at  the same time that the case is brought  to a court or before a judge. We just push the court to speed up  the  proceedings if there are delays or to redress the human rights violations. E.g. if the court  is dealing with a case  and there is no defend- lawyer  taking care of the defendant, then the People`s Advocate intervene for the defend - lawyer to be provided. After the decision taken by the court, the Ombudsman`s role goes only for the court decision to be executed but can not challenge its foundation.

2. As regards our work practice, we generally do not start with a case or we simply interrupt our activity when we get knowledge that the case  (complaint) has been at the same time brought to a court or to the prosecution office. There are very few cases that we continue dealing with the case in parallel with the prosecution office or the court. A similar, successful case was the one in January 2003 when the police  and the prosecution office of  Korca town declared that a person  (named Gazmend Tahirllari)  died due to the alcoholic amount  in his body and not because of the violence exercised over him by the police.  Then, we intervened and made possible that the corpse be exhumed and have a new expertise.  The second medical forensic commission  set up under our request, concluded that  the late had died  because of  the police violence. Consequently, 5 police officers got prosecuted and punished for this crime.  The percentage of such cases is very small compared to the 2000-2500 admissible complaints we have per year. If the case (complaint) has been referred for examination to a higher administrative body, we still continue  with the  procedure of investigation. The law permits us to intervene at any level of Albanian public administration.

3. According to our law there is no time limit to lodge a complaint to the Ombudsman against any administrative decision. But when a claim is filed to the court or to any other higher administrative body, then for particular cases there are specific time limits, from 5 to 30 days.

4. There is no any special administrative court in Albania, therefore, in the Albanian courts there are special sections to lodge a suit against any administrative decision or act.  The Civil Procedures Code says that the deadline for a case in the first instance to be dealt with is 30 days but in very few cases it goes like this. If no claim is filed in the Court of Appeal against the decision, then the case is finalized within 2-4 months. If the claim is filed in the Court of Appeal or in the Supreme Court, the case proceedings continue for 2 years or more. 

5.  It usually takes us almost 2 months to make a recommendation after  having received and investigated a complaint. Sometimes it takes us less or more time than that.

6.  As regards my opinion about the articles XX and XXX of the draft provision , I think they are not right. If the Ombudsman of that country makes use of these articles then he will have little chances to be successful while intervening in cases of human rights violation complaints. That Ombudsman will not be successful. I think that our law relevant legal provisions are enough flexible for the Ombudsman to be active in favour of the complainant. Albanian law is good enough giving advantages as such to the institution of the Ombudsman in Albania to be successful. I am sending you attached our law in full. As far as I know regarding the legislation of several countries, the Polish Ombudsman has got a law even better especially when he gets knowledge of wrong court decisions. Macedonia, in its new law of September 2003 entitles the Ombudsman to suspend any administrative act which violates human rights. So, Macedonia also has got a very good law.

Please find below the article 14, 18, 25 and 31 of the Law “On the People`s  Advocate” and attached  the Law in full.

You can also refer to our website  www.avokatipopullit.gov.al

Thanking you for the cooperation,

                                                                                          Sincerely,

                                                                 Ermir DOBJANI

                                                         Albania People`s Advocate

Article 14

Conditions of Admissibility of Complaints, Requests and Notifications

The People’s Advocate may refuse to initiate or may terminate the investigation of a case if the same case has been decided or is being scrutinized by public prosecutor or a court. In such a case, he shall be entitled to request information by those authorities.

 Article 18

Procedure after Admission of Complaints for Review

Following admission of a complaint, request or notification, the People’s Advocate shall proceed in one of the following ways:

a)      shall conduct himself an investigation;

b)      shall request explanations from the organs of public administration, as well as the public prosecutor in cases of pre-trial detention and arrest;

c)      Shall make a recommendation to the High State Control to exercise its powers.

Article 25

Persons and Acts outside the Jurisdiction of the People’s Advocate

The following shall be outside the jurisdiction of the People’s Advocate:

a)      the President of the Republic;

b)      the Prime Minister;

The following shall also be outside the jurisdiction of the People’s Advocate:

a)      statutes and other legal acts;

b)      military orders to the Armed Forces;

c)      court decisions.

Without prejudice to item “c” of this Article, the People’s Advocate shall accept complaints, requests or notifications of human right violations arising from the administration of the judiciary and judicial procedures. The investigations of the People’s Advocate shall not infringe the independence of the judiciary in ruling.

Article 31

Structure

The Office of the People’s Advocate shall have three specialized sections; each headed by a Commissioner.

The sections shall be:

a)      a section for the organs of central administration, local government and third parties acting on their behalf;

b)      a section for the police, secret service, prisons, armed forces and the judiciary;

c)      a general section in charge of all the issues falling outside the scope of the two other sections, co-operation with non-governmental organizations as well as studies and activities in the area of human rights and freedoms.