Does The Commission Of Appeal on Medical Examinations regarding the Capacity to Work Constitute a quasi-judicial body?
(Assessment of The Administrative College of The Supreme Court and ECHR case-law)
The notion of Social Contract by Jean-Jacques Rousseau is defined as a renunciation of the individual rights and freedom that one has in the State of Nature, and the transfer of these rights to the collective body, a new ‘person’, as it were, is formed. The sovereign is thus formed when free and equal persons come together and agree to create themselves anew as a single body, directed to the good of all considered together.
Part of the manifestation of sovereignty is also the administration of justice, which, inter alia, must meet all national and international standards, to produce fair, transparent, impartial, and independent decisions free from any irrelevant influence.
According to the Constitution of the Republic of Albania, based on the separation and balance of powers, justice is administered by the judiciary, which is three-tier and is exercised by the Supreme Court, courts of appeal, and courts of the first instance, which are established by law. Here, the case arises, questioning the rigidity of the abovementioned statement, always in the sense that; What about a body that is not traditionally included in the judiciary, can it deliver justice as such, according to constitutional and conventory standards?
The Administrative College of the Supreme Court, through the decision of 22 July 2021 (no. 00-2021-1317 of decision 113) recalls that the Constitutional Court has accepted the constitutionality and legitimacy of the creation by law of quasi-judicial bodies, which are presented with the inherent characteristics, sometimes of administrative bodies and sometimes of judicial bodies. (§ 49)
In the European Court of Human Rights it is settled case-law that if an administrative body charged with reviewing disputes over “civil rights and obligations” does not meet all the requirements of Article 6 § 1, there is no violation of the Convention (ECHR) if the decisions of this body are to be brought before a “tribunal” in the meaning of Article 6 § 1. For any administrative or non-judicial body to qualify as a “tribunal” within the meaning of the Convention and eventually have the full capacity to review disputes over “civil rights and obligations”, it must have some key features, such as: being established by law; regulation by law of their organization and functioning; the law provides material and procedural guarantees for the independence and impartiality of the bench, either by the executive tier or by the parties themselves.
In the case of Dauti v. Albania, the ECHR held that The Commission of Appeal on Medical Examinations Regarding the Capacity to Work (the Commission) did not constitute a court within the meaning of Article 6 of the Convention. Taking this into account, as well as the general and individual measures established by the ECHR in this case, the legislator reviewed the legal provisions for the Commission by law no. 10447, 14.07.2011 “On some additions and amendments to law no.7703, 11.5.1993 On social insurance in the Republic of Albania, as amended. ”. Also, the activity of the Commission is regulated by DCM no. 505, 10.06.2015 “On the organization, functioning, and remuneration of superior commissions for determining the ability to work.” (VKM 505/2015)
According to the first unifying sentence, the Administrative College held that despite the legal amendments and the Decision of the Council of Ministers (VKM 505/2015), the Commission does not meet all the standards set by the ECHR in the case “Dauti v. Albania” and the constitutional standards of the court established by law on principles of the independence and irremovability of judges. Eventually, the requirements of Article 6 of the ECHR and those of Article 42 of the Constitution of the Republic of Albania regarding the right to a fair trial are not met. Thereby, the Commission does not yet constitute a quasi-judicial body and it is impossible for its decisions not to be subject to further judicial review. (§121)
In the case of Guðmundur Andri Ástráðsson v. Iceland (application no. 26374/18), in assessment to the right to a “tribunal established by law”, the Court reiterated that a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence based on legal rules and after proceedings conducted in a prescribed manner. (§219). The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by the court or tribunal with the particular rules that govern it and the composition of the bench in each case (§223). In full convergence with these interpretations, the ECHR states that if a judicial (or quasi-judicial) body does not meet the requirements of independence (especially from the executive) and impartiality, it may not constitute a “court” within the meaning of Article 6 § 1 of the Convention (ECHR) (§232).
In the second unifying sentence, the Administrative College held that the third paragrapgh of Article 39/1, in law no.7703/1993, is contrary to the decision of the ECHR “Dauti against Albania” in the part where it provides that “The decision of the Superior Commission is final”. Thereby, the above provision will remain unenforceable as long as the Commission does not meet the conventory and constitutional criteria as a quasi-judicial body. Instead, the decision referred to above in this paragraph of the European Court of Human Rights and the constitutional and legal provisions guaranteeing the general right of appeal and judicial review of the administrative act shall apply directly (§159).
https://iep.utm.edu/soc-cont/#SH2c
http://www.gjykataelarte.gov.al/web/3553_merushe_shpata_vendim_njehsues_6252.doc
http://hudoc.echr.coe.int/eng?i=001-206582