MAIN FINDINGS AND CONCLUSIONS

On the monitoring of the judicial administrative process on

Security the lawsuit “On closing the activity of the Private Pre-university Education Institution, Kindergarten “Zubeyde Hanim” (Tirana)

Pursuant to its mission, the Albanian Helsinki Committee (AHC) monitored the judicial administrative process at the Administrative Court of First Instance, to secure the lawsuit regarding the closing down of the activity of the Private Pre-university Education Institution, Kindergarten “Zubeyde Hanim”, Tirana”. The judicial process extended over three hearing sessions, held on November 9, 2022 and November 14, 2022.

Earlier, AHC monitored also the judicial administrative process on “securing the lawsuit requested by the Gulistan Foundation, regarding the closing down of the Mehmet Akif Ersoy College (private pre-university education institution).” The conclusions of this monitoring process were made known to the public.[1]

With a focus on observing respect for fundamental rights and freedoms in the country, namely the right to guaranteeing free and inclusive education and the right to due process, as well as in respect of article 145, paragraph 3 of the Constitution, AHC does not seek to influence the activity of the judicial power. In this sense, it is worth clarifying that the case in question may also be the subject of further appeal in the Administrative Court of Appeals. Nevertheless, for the sake of transparency and the right of the broader public to become familiar with this sensitive issue, AHC wishes to share with the public some of the preliminary findings of the observers who monitored the hearing sessions of this case.

• With regard to the issue of assigning the judge for this case, AHC, based also on the practice of the Constitutional Court, notes that “the phrase ‘court…assigned by law” according to article 42/2 of the Constitution also incorporates the elements regarding the formation of the panel of judges assigned to review every concrete case.”[2] Regarding the composition of the panel of judges of this case, AHC observers report that the lack of clear and transparent evidences of the regulatory act of the Court Chairperson (order or instruction) through which it was decided to avoid the lottery procedure (selection by lottery) and assigning the rapporteur judge responsible for the review of the request to secure the lawsuit, and the substance of the case, raises suspicions about guaranteeing respect for due legal process, in the sense of the standard required for the “court assigned by law.” This standard is envisaged also in article 6/1 of the European Convention of Human Rights (ECHR). Furthermore, the lack of the announcement of this act on the official website of the Court does not make possible transparency of the Court in general and at the same time making the public familiar with the internal acts issued by it.

AHC observers noticed that the position of the court toward the litigating parties, in some important elements of the normal conduct of the process, gave rise to questions about the principle of impartiality and contradictoriness. More concretely:

• During the session of 14.11.2022, which focused on the review of the request to secure the lawsuit, and therefore the suspension of Order No. 540 dated 15.09.2022 of the Ministry of Education and Sports, it was noticed that the way in which questions were formulated and the position (conduct) of the panel of judges (the judge) toward each party in the process raised question marks about an infringement of the principle of equality of the parties in the process, and premises for differentiated treatment of the parties, a violation of the right to contradictoriness, and reflection of bias or onesidedness. According to information conveyed by the observers, the judge panel did not interrupt the representatives of the Ministry of Education during rebuttals although in their presentations, there were positions that had to do with the essence of the case. Contrary to the approach toward the sued party, the judge panel behaved differently toward the children’s parents, whereby, at the end of the session, one of the parents was not allowed to speak with the argument that his statements did not pertain to the current procedural phase, but to the essence of the case. Failure to pursue the same procedural standard toward the parties conveyed to the observers reasonable doubts regarding prejudice of the decision-making. It is worth emphasizing that this conduct of the court toward the sued party runs counter to the unifying case law of the High Court, which by decision no. 10, dated 24.03.2004 argued that
  “The Courts should not rely the decision on taking the temporary measure of securing the lawsuit based on facts or actions, and in their juridical qualification, that have to do with the resolution of the essence of the case. Furthermore, the review of the request to undertake the measure to secure the lawsuit should be handled in such a way as to avoid any perception, according to which, the court prejudiced the resolution of the essence of the case or that it is not impartial in its adjudication.”
• With regard to the date when the decision was made on the meaure of securing the lawsuit, from a procedural standpoint, legal deadlines envisaged in article 28 of law no. 49/2012 on administrative courts and the adjudication of administrative disputes, amended, which envisages that the request for securing the lawsuit should be reviewed within five days from its submission in court, were not respected. In the case in question, it resulted that the intermediate decision on the request to undertake the measure to secure the lawsuit was issued about 1 (one) month later than the day it was submitted in court, a moment that is logged as registered on 17.10.2022. AHC notes that this case is part of the category of cases that represent an urgent case for the imposition of transitory measures until a final decision has been made on the resolution of the case. The 5-day deadline imposes the need to defend in essence this right, so that in case the lawsuit is admitted, the decision is executable. As a result, in order to concretize it in this concrete case, it means that the children are not denied the right to education irreversibly. Failure to respect the deadline also created among the children and parents the feeling of insecurity, a worsened emotional and psychological condition, considering that by now children have lost about 2 months of education. Taking the decision on the security measure within a shorter window of time would, among others, help the children make a faster decision about the continuation of education of their children at other institutions that provide pre-school education.

Per the above, AHC observers consider that proper management of the deadlines and realization of the judicial process by issuing a decision within a reasonable time is a direct competence of the Court and not of the litigating parties. Based on the highest interest of the child, which should guide any action undertaken by public authorities, including judicial instances, AHC deems that the Court should have taken into consideration the right to education and the freedom to choose an educational institution, guaranteed and legally protected by a series of international acts.^[3]

• In the evidence presented by the sued party,[4] it was noticed that the Court did not undertake a real and complete investigation, which would help verify fairly the fact whether the children identified as petitioners in this judicial process were part of the list of children registered at public pre-school education institutions. Regarding this key moment of the hearing that would have a direct impact on making a decision in the end, there was no reaction, question, or intervention by the judge panel, although evidence was administered.

At the end of the hearing, the court decided that the conditions of article 29 of law 49/2012 are not met and, as a result, the request of the petitioning party to secure the lawsuit should be rejected as unfounded on evidence and on the law.

[1] https://ahc.org.al/konkluzione-per-monitorimin-e-procesit-gjyqesor-administrativ-per-sigurimin-e-padise-per-mbylljen-e-kolegjit-mehmet-akif-ersoy/

[2] Decision no. 15, dated 17.04.2007 of the Constitutional Court

^[3] Neni 3, paragrafi 1, i Konventës së Kombeve të Bashkuara për të Drejtat e Fëmijëve “Në të gjitha vendimet që kanë të bëjnë me fëmijën, të marra qoftë nga institucione publike ose private të përkrahjes shoqërore, nga gjykatat, autoritetet administrative apo organet legjislative, interesi më i lartë i fëmijës duhet të jetë konsiderata mbizotëruese”.

[4]Shkresa me nr 5673/1 07.11.2022 e Drejtorisë së Përgjithshme Arsimore dhe shkresa e datës 02.11.2022, dërguar nga Drejtoria e Çerdheve dhe Kopshteve