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Section 11. Science of law
Levanaku Andj, PhD Candidate in Law, Assistant Professor, European University of Tirana E-mail: andja.1989@yahoo.com
Albanian jurisdiction in relation to european jurisdiction protecting human rights in Albania
Abstract: The Constitution of the Republic of Albania is the fundamental law that guarantees the human rights in Albania. Human rights in their universal, abstract sense in relation to the positive right are superior rights and define the availability and the borders of positive rights in a country. Also, they define the legitimacy of the state's power. Human rights in Albania are guaranteed not only by the Constitution, but also by the European Convention of Human Rights.
Keywords: human rights, Convention, Constiution, fundamental freedoms.
Human rights and fundamental freedoms contain the content of this article is clear that the judge of everything
essential criteria for the position and the role of the man on one side and on the other side they represend the state of democracy of the system. These are the instruments for the restriction of the state's power and banning of arbitrary. The scale of their defense and guarantee show the development and civilisation of a society. These fundamental freedoms are the freedom of expression, freedom of thought, conscience and religion, freedom of association and peaceful assembly etc. These freedoms turn into fundamental freedoms when they are sanctioned in the Constitution or in Declaration and Charts of rights of constitutional importance [1, 57]. The Constitution of the Republic of Albania sanctiones the real guarantees through which the fundamental rights will be guaranteed. Some articles containes rules that create various juridicial institutions, in order to guaratee in practise the implementation of human rights. The Constitution forsees four jurisdictional mechanisem of guarantees. Besides the three scales system of the common courts it forsees the constitutional jurisdiction of the Constitutional Court of the Republic of Albania. The Constitution forsees that it will be the last court that will judge the demands of individs protecting their right to a fair trial [4, 42]. Thus the decisiones of the Constitutional Court which are erga omnes, turn into a real guaratee for defending the individe's legal interests. So the constitutional jurisdiction is sanctioned from the Consitu-tion of the Republic of Albania as one of jurisdictional guarantees for the protection of human rights and fundamental freedoms. Jurisdiction is "the concretizations of laws", stressing the moment in which the law from static and passive, become concrete and efficient [2, 10]. Judicial jurisdiction serve to protect the constitutional human rights, freedoms and legal interests. This is clearly sanctioned in the article 42 point 2 of the Constitution of the Republic of Albania, where is forseen: In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This article is similar to the article 6 point 1 of the European Convention of Human Rights. Having into consideration the
concerning the protection of rights, of the constitutional and legal interests or the judge of every criminal offence in the Republic of Albania undergo a judicial control done by the court. This is a real guarantee protecting human righs and fundamental freedoms in Albania. Foreigners are subject of the fundamental freedoms and right in Albania like Albanians. This is sanctioned in the Constitution of the Republic ofAlbania in the article 16. While in the article 18 is foorseen: All the people are equal before the law. Also it states: Human rights and obligations foreseen by the Constitution are the same for the albanians citizens and as well as for the foreigners, that live in the territory of the Republic of Albania, with the exception of the cases which the Constitution links in a special way the exercises of certain rights with the Albanian citizenship. The global function of jurisdiction that is displayed in the reason of law is the defense of rights. With the defense of right we understand the reaction towards their violence, or a reaction to ban or eleminate negative effects as much as possible. An essential characteristic of jurisdiction is the instrumentalization, because jurisdiction serves as an instrument, as e means for defending the human rights. Thus it is an instrument used to make effective the person's rights [2, 15]. The defense of rights contains the substance of jurisdicional activity and is the global function of jurisdiction. This is sanctioned in the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nation on 10th December 1948, as well as from the European Convention for the protection of Human Rights and fundamental freedoms ratified from the Council of Europe in Rome, 4th November 1950 and entered into force on 3rd September 1953. The Universal Declaration of Human Rights is the first instrument of human rights that is put out by an international universal organization as United Nations are. The Universal Declaration declare that: All the human beings are born free and equal in dignity and rights. These are known as natural rights. The Declaration proclaimes two wide categories of rights, on one side the political and civil rights and on the other side as a necessary accomplishment, the economical and social — cultural rights. Both categories
Albanian jurisdiction in relation to european jurisdiction protecting human rights in Albania
contain a unity that is a base for realizing the rights and freedoms in practice. In the content of the European Convention for the protection of Human Rights and Fundamental Freedoms comparing with the Universal Declaration, a great importance is given to the defence of fundamental freedoms and rights of man than their affirm in the Convention, which is an effective instrument because of obligatory character of its regulations from the international right point of view, but mainly through its complex mechanisem of its control of implementation in the internal level and especially international one. It puts guarantees for freedoms that were affirmed together from all states, members of Council of Europe. As well as for the social rights the Convention not only proclaims the rights and freedoms, but cares as well for the security and respect of given obligatory form states that sign. The European system for defending and promoting the human rights is the most effective system. It offers high standats for the rights and their implementation. The claimants, either the states or individes should address directly to the European Court of Human Rights. In this way the procedure is simplified enough [3, 224]. The Committee of Ministers will play the role of observing of implementation of Court decisions. The fact that will be stressed is the protocol no. 11 that exclude the possibility of doing amendaments that will restrict the implementation of protocol [3, 225]. The special importance of this is as accepting the protocol states will affirme without condition the obligatory jurisdiction of European Court of Human Rights. So the other states that will ratify the Convention in the future will accept the new version with changes that protocol 11 has brought. 6 For an individ to bring the sue to the European Court of Human Rights complaining for the Albanian state must fulfil the forseen criterias in the article 34, 35 of the Convention. The Court may receive application from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the contracting parties. The Court may only deal with the matter after all domestic remedies have been exhausted. For example, in Albania it is the Supreme Court that gives its decision then the case may be judged from European Court of Human Rights. While for the right to a fair trial the matter must be judged by
the Constitutional Court of the Republic of Albania. Another condition is to sue the matter to the European Court within a period of six months from the date on which the final decision was taken [5, 35]. The European Court gives the final decision on the contractual pairs which are obliged to implement it. So through the obligatory jurisdiction of Europen Court of Human Rights is possible that affirmed in the European Convention of Human Rights gain an effective international protection. Albania has ratified the international acts for protecting the human rights and above all the Constitution of the year 1998 calls directly in the Constitution, the Convention making it its part. This is forseen in the article 17 that mentions that legal restrictions of the human rights must not overpass in no case the legal restrictions forseen in the Convention. The decisions of European Court of Human Rights are obligatory for Albania. It may happen that Albania not only can interpret the laws for human rights but also can change the native laws aiming the harmony towards international obligations for human rights.
In conlusion the effective and concrete protection of human rights, fundamental freedoms and legal, constitutional interests of people is the global function of jurisdiction sanctioned in the main legal documents in power. Form the other side the jurisdictional activity disciplined by legal norms contain a system that balances the material right with procedural right. These two system are well-coordinated. Substantial norms protect rights and interests, and sanction certain human manners that bring juridicial consequences. In this way this norms have configurated the subjective rights which include a protection of certain interests that is juridicial protection. If material norms are broken the procedurial norm is activised. The procedural norm disciplines the subjects activity. Thus they discipline the jurisdictional activity having into disposal the instruments, the effective doing of the protection of rights. The European system of protecting the human rights is the most advanced regional system. The essence of European order is made by human rights, rule of law and democracy. The Albanian judicial Court together with European jurisdiction that is exercised from the European Court of Human Rights are a functional and real guarantee for protecting the human rights in Albania.
References:
1. Aurela Anastasi. E drejta Kushtetuese. - Tiranë, 2004.
2. Salvatore Satta. Diritto processuale civile. - Padova, 1992.
3. Arben Puto. E drejta nderkombetare publike. - Tiranë, 2010.
4. Constitution of the Republic of Albania, approved by law no. 8417, dated 21.10.1998 and changed by law no. 9675, dated 13.01.2007; no. 9904, dated 21.04.2008; no. 88, dated 18.09.2012.
5. European Convetion of Human Rights.
