05-09-2014

Civil Courts And Procedures

Authors

  • Oljon Kaso, Manager
    IKRP Rokas & Partners Albania sh.p.k.

What are the peculiarities of the reform in the area of administrative disputes?

Law 49/2012 of 3 May 2012 “On the Organization and Functioning of Administrative Courts and the Judicial Review of Administrative Disputes,” which entered into force several months ago (but has not been implemented, yet), is an organic (basic) law. It lays down the principles of administrative dispute review, the rules on the organization and operation of administrative courts of all instances, the judge appointment criteria and method, court jurisdiction and competences, and the rules on how the court proceedings, including judgment enforcement, are to be conducted. With regard to its substantial provisions, I would like to underline several aspects that have caused some controversy in legal circles on grounds of not being in line with the Civil Procedure Code or even with the Civil Code. I support the argument that, while this is an organic law, there should be no incompatibilities with other laws, especially with the Civil Procedure Code.

Can you identify some such incompatibilities?

• The issue of time-barred action Article 18 (7) of the Law, which refers to the prescribed period for the right of action, stipulates that:

The time-limits referred to above shall be final, and any violation thereof shall cause loss of right of action. The time-limits may also be assessed by courts proprio motu.”

Based on the provision above, if a party has initiated a suit before a court, after the statute of limitation applying to that suit has expired, the court may deliberate on the issue and determine whether the lawsuit can go ahead or whether the lawsuit should be rejected as time-barred. Article 125 of the Civil Code stipulates that:

Expired period of limitation may not be taken into consideration by a court or any other competent body proprio motu, but only upon an application by an interested party.”

The provision laid down in Article 125 of the Civil Code is also related to Article 6 of the Civil Procedure Code, under which a court adjudicating a dispute is to decide on everything that is part of the lawsuit application and nothing but that. In this case there is an obvious conflict between the provisions cited above, because the legal institution of statutes of limitation is governed by the Civil Code provisions, which, in the hierarchy of the sources of law, stands higher than the provisions of the abovementioned Law.

• Parties’ attendance to court, and consequences of failing to attend court. This element is referred to in quite a few articles in Law 49/2012. Article 3 (4) of the Law specifies that:

Subject to the nature of a case, the administrative court shall review the case orally in court session or in the form of deliberations on written documents. Parties’ failure to attend court shall not be a ground for dismissing a case.”

Article 25 (3) “Preparatory actions” specifies that:

Parties’ failure to attend any preparatory actions, even when the parties have been duly summoned and notified, shall not be a ground for dismissing a case.”

Article 34 (2) “Court session” specifies that:

Parties’ failure to attend a session shall not be a ground for adjourning or dismissing a case.”

All the provisions above and, also, the spirit of the Law itself, are in conflict with Article 179 of the Civil Procedure Code: “If the plaintiff or both the parties fail to attend the preparatory actions and the court sessions without any justifiable reasons, and are found to have been duly aware, the court or the sole judge shall decide to dismiss the case.” In addition, Paragraph 2 of Article 24 is in conflict with Paragraph 1 in that same Article. Paragraph 1 provides that:

Court sessions shall be conducted in compliance with the Articles of the Civil Procedure Code to the extent they are compatible with this Law.”

Do the above mentioned provisions cause any obstacles to the conduct of normal judicial proceedings of an administrative nature?

Yes, they do, because the problem in this case is both procedural and practical. The reason for this is that Article 25 of the Law lays down the actions to be taken by a judge while requiring compliance with a series of actions of plaintiffs and defendants. For instance, point (a) provides that a judge is to require of a plaintiff to address any shortcomings in the lawsuit application within a time-limit of 10 days. Where the plaintiff does not attend session, who will take such actions, and, in case those actions are not taken, what should a judge or a court do? The reason for introducing this restriction on courts, which would normally have to dismiss the case, is not clear. Under Article 2 of the Civil Procedure Code only the parties to a case may initiate a court case, unless the Law provides otherwise. This is the principle of having a lawsuit application, which is filed by a plaintiff. As it can be seen, the substance of the Law is contradictory. Article 39 (3) of the Law specifies that:

The court shall decide to dismiss a case if its plaintiff withdraws from that case.”

The provisions does not specify the forms of withdrawing from a case; however, is it not a form of withdrawal if the plaintiff fails to attend court without any reasons, even though he was duly aware of the date and time of the court session?

Can you provide any other examples?

Visible discordances can also be noted in relation to the conditions, revocation or modification of injunction measures or in relation to complaints against those measures. Unlike Article 207 of the Civil Procedure Code, which provides that:

Upon application by either party the court may replace an injunction measure with another one after having also heard the other party.”

Article 31 (1) of the Law provides that: “When circumstances change, the court may, proprio motu or with an application by a party, revoke or change an injunction order.”, Allowing the court to revoke or replace an injunction order proprio motu seems to be an excessive power and not in the interest of the case. Under this provision, a court has to act as an investigative body in order to look into or verify the circumstances of the case(s) under its judicial review, and assess on the basis of the collected information whether the injunction order is to be revoked or changed. Not only does this lie outside the scope of functions of a court, but it is also practically infeasible, since it gives parties grounds for reasonable doubt that the court has acted incorrectly or impartially. With regard to the right of appeal against an injunction order, the specific Law includes provisions that are in excess of Article 209 of the Civil Procedure Code, which states that:

A separate appeal may be filed against the court order approving the injunction application or amending or revoking an injunction.”

According to this provision, which has often been subject of debate, where an injunction application has not been approved, the applicant does not have a right of appeal, because the Code specifically provides that an appeal is allowed only when the application has been approved and not when it has been rejected. Article 32 (1) of the Law specifies that: “A separate appeal may be filed with a higher instance court against the court order approving or rejecting the injunction application or amending or revoking an injunction order.”

On a more realistic note, this provision looks more complete; however, why was the provision of Article 209 of the Civil Procedure Code not changed, too? Think of a litigation the subject-matter of which is a claim of a considerable amount from the defendant, where all the evidence is available, where the court fee of 3% of the subject-matter amount has been paid, and where, in case of a refusal by the court to issue an injunction order, no right of appeal to a higher-instance court is granted; on the other hand, here we have the case of an ordinary administrative dispute, the proceedings of which give the right of appeal against a decision not to issue an injunction order.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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