AMENDMENTS TO THE CODE OF CIVIL PROCEDURES ENTER INTO FORCE

On 23 March 2021, the Albanian Parliament approved the law No. 44/2021 “For some additions and amendments to the Law No. 8116, dated 29.3.1996, "The Civil Procedure Code of the Republic of Albania " (the “Law”) which entered into force on 29 May 2021.

The changes introduced by the Law aim to increase the effectiveness of the justice system and to respond better to the judicial process needs. The role of Supreme Court judgments in the consolidation or alteration of the established court cases and practice is one of the fundamental novelties brought by the Law, which aims not only to increase the effectiveness of the justice system but will also help in the reduction of the backlog files gathered over the years due to the fact of the Supreme Court not being operational for a long period of time.

We have summarized below the key amendments of the Civil Procedures Code brought by the Law.

• Number of judges in cases tried by the Appeal Court

The number of the sitting judges of the Appeals Court is changed from three to one judge, when trying cases for:

• Contractual claims where the the claimed amount is not more than 20 times of the national minimum wage arising from a contractual relationship.
• special appeal against decisions of the district court rejecting an application for issuance of the writ of execution, and
• special appeals against a decision of the district court adjudicating objections against the bailiff proceedings.

These amendments will speed up the adjudication of cases before the Appeals Court as hearings are often adjourned due to the failure of judges panel to be duly constituted.

• Direct appeal before the Supreme Court

The right of the parties to file a direct appeal to the Supreme Court based on Article 59 of the Civil Procedures Code is now allowed only in case a lower court (i.e., district or appeal court) has ruled that it has no jurisdiction to try a dispute. Whilst appeals against judgments of lower courts which rule that a dispute is part of their jurisdiction, or against the decisions of the courts on their competence to try a dispute, an appeal is granted leave only together with the final or non-conclusive judgments of the court. Any disputes on court jurisdiction brought by lower courts before the Supreme Court shall be tried by a sole judge within a 30-days period and the Supreme Court in its ruling shall give the relevant instructions for the continuance of the process by the court that will be declared as competent to adjudicate the case.

• Requests for exclusion of judge

Any parties’ motion to remove or disqualify a judge from trying cases before the Appeal Courts or the Supreme Court shall now be adjudicated by a sole judge of the same court. The decision in final and binding.

• Value of lawsuits to be tried in short proceedings

The value of disputes that will be tried in summary proceedings i.e., where a ruling is made in camera without the presence of the parties has been increased to 600,000 ALL (approx. EUR 4,900).

By expanding the category of disputes that will be adjudicated in summary proceedings, the legislator intends to increase the effectiveness, expeditiousness, and smooth operation of the current legal system.

• Special recourse before the Supreme Court

The parties to a dispute, based on the amendments introduced in the Law, are entitled to challenge the decision of the Appeals Court for the dismissal of the case or, for revisiting the same by the first instance court, by means of a special procedure before the Supreme Court. This special recourse should be tried by the Supreme Court within 30 days.

• Suspensions of execution of court decisions only by the Supreme Court

The Law has repealed Article 469 of the Code which empowered the Appeals Court to suspend the execution of a final and binding judgment of the Appeals Court even when such judgment confirmed the ruling of the first instance court, allocating such competence now to the Supreme Court, only. This amendment finally settled the overlap of competences that existed between the Appeals Court and Supreme Court.

• Clarification of procedures for filing a recourse before the Supreme Court

The latest amendments introduced in the Law reiterates the obligation that a recourse or appeal before the Supreme Court can be signed only by a licensed attorney and should be filed directly with the court which made the judgment in the first place (i.e., First Instance or District Court) and not with the Supreme Court. The legislation has determined that a first assessment of whether the recourse meets the conditions for review by the Supreme Court should be made by the court which made the judgment. If the recourse pre-conditions are met, then the whole court file and the recourse will be transferred to the Supreme Court which makes its own assessment through a Sole Judge on whether the recourse meets the legal pre-conditions for a Supreme Court review of the recourse merits. If the recourse is found to be flawed, the Supreme Court Judge in charge of the case notifies the concerned party to remedy the flaws within 5 days. When the flaws of the recourse are not remedied within the deadline, the judge is entitled to return the recourse without any further action and in this case the recourse shall be deemed as if it was never filed.

• Judgement procedures in the Supreme Court

Significant amendments are made to Article 482 of the Code which sets out the trial procedures in the Supreme Court. Generally, the recourses in the Supreme Court will be tried in camera without the parties’ presence, based on the documents submitted by the parties. The Supreme Court shall adjudicate the dispute in the presence of the parties in a court hearing only if:

• the case is important from the legal point of view for the solidification or alteration of the established court cases; or.
• the Civil Panel of the Supreme Court deems it necessary to summon and hear the parties due to the complexity of the case.

• Pre-Judgment Proceedings

The Law has introduced a new institute of the civil procedures that is the Pre-Judgment Proceedings. The Civil Panel or the Joint Panels of the Supreme Court, during the adjudication of the case, may address the European Court of Human Rights or, other international courts under the obligations deriving from international agreements ratified by the Republic of Albania. In this case, the court should stay the proceedings until a decision is taken by the relevant international court.

• Clarification of procedures for the unification or change of case law

The Law has clarified the authorities within the Supreme Court that can initiate the procedure regarding unification or alteration of the established court cases, namely the Civil Panel and the Chairman of the Supreme Court. Regarding the proceedings for the unification or change of the established court cases or practice, the Law has clarified which authorities may initiate such procedure, which are the Civil Panel of the Supreme Court and the Chairman of the Supreme Court. Hence, the judicial body that will review the unification of the practice shall consist of the Civil Panel of the Supreme Court i.e., a panel of 5 judges which includes the panel that is trying the recourse and two other judges appointed by lot. The process for the alteration of the established court cases or practice on the other hand can be made by the Joint Panels of the Supreme Court, with a quorum of not less than 2/3 of all members of the Supreme Court (i.e., not less than 12 judges). Another related novelty is the right of the Supreme Court to summon the State Advocacy and/or public legal entities or private individuals with necessary expertise regarding the legal issues raised for unification or change of the established court cases and practice, by asking them to provide for a written legal opinion on the matter.

• Additional competencies of the Supreme Court

The amendments made to Article 485 of the Code give to the Supreme Court some additional competencies regarding its right to refuse the recourse when raised for reasons other than those stipulated in Article 472 of the Code and, the right to review ex officio the merits of the case without the need to revert it for retrial in the appeal or district courts.

• Shorter timeframe for notification of the final decision of the Supreme Court

The Law sets out the obligation of the Supreme Court to notify its final decision within 3 days. The notification of the final decision is crucial not only for the parties to become familiar with the court's judgment but also determines the trigger date for filing an appeal with the Constitutional Court.

• Streamlining of procedures for the retrial of disputes

The Supreme Court when it finds that a dispute should be retried by the district or appeals court, must specify in its decision the parts of the judgment that are reversed and those for which a lower court should render a decision upon retrial of the case. The retrial of the case by the lower courts will be limited only to the reasons which made Supreme Court to reverse the decision. Consequently, other parts of the judgment should not be reviewed by the lower courts. These amendments specifically aim to limit the right of the parties to motion the lower court to conduct a de nuovo review of the case.

Contact:

Oltion Myftari

Senior Associate

[email protected]

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