By Vincent W.J. van Gerven Oei
Recent ECtHR Ruling Puts Vetting on Edge

Now that the vetting institutions have been installed, the actual reassessment process can start. But for anyone – be they Prime Minister, foreign ambassador, or ordinary citizens – who thinks that from here on it will be smooth ride might be terribly mistaken.

Because the major question hovering over the entire reassessment procedure is the following. Will the judges, prosecutors, and legal aids assessed – and possibly sanctioned or even fired – by the vetting institutions, have access to a fair trial? Article 6(1) of the European Convention on Human Rights defines this as follows:

In the determination of his civil 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.

The interpretation of a fair trial hinges on whether the Independent Qualification Commission (KPK) and Appeals College (KA) are, in fact, courts that are part of the regular Albanian court system.

According to Constitutional Annex art. C(3), members of the KPK are considered to be judges of the High Court, whereas members of the KA are considered to be judges of the Constitutional Court. The selection criteria for members of both the KPK and KA were similar to those of judges for the Appeals College and the Constitutional Court, respectively.

However, the Appeals College, the highest of the vetting institutions, is not the same as the Constitutional Court, the highest court in Albania. Constitution art. 179/b(4) defines the Appeals College as being “at” or “near” (pranë) the Constitutional Court. They are therefore not the same. This is a crucial distinction: the KPK and KA are not courts, even though its members are like judges. Judges, however, that have been appointed by Parliament, not by the judiciary.

According to Constitution art. 131(f) the Constitutional Court decides on

the final judgment of complaints of individuals against any act of public government or judicial decision that threatens the fundamental rights and freedoms guaranteed in the Constitution, after all effective judicial methods for the protection of those rights have been exhausted.

This means that, in principle, anyone judged by the KPK and KA could file an appeal at the Constitutional Court.

In the initial draft of the Constitutional amendments for the judicial reform reviewed by the Venice Commission, art. Ç(2) of the Constitutional Annex explicitly excluded the possibility to file a complaint at the Constitutional Court after a judgment of the KA. But according to the evaluation of the Venice Commission in 2016,

this is a serious limitation which prevents judges and prosecutors from lodging constitutional complaints against a decision which may terminate their employment; they are thus deprived of a remedy which would otherwise be accessible to them as to anyone else.

In the final, adopted version of the Constitutional amendments this sentence was scrapped by the Albanian lawmaker. This seems to suggest that it is indeed possible for an assessee to file a complaint at the Constitutional Court.

However, Constitutional Annex art. F(8) states:

Subjects who are reassessed can file a complaint at the European Court of Human Rights.

Apart from the fact that it is a given that any European citizen may file a complaint at the ECtHR should they wish to do so, the placement of this paragraph at the end of art. F, which deals with the Appeals College, at least appears to  imply that after the KA there is only the ECtHR, and not the Constitutional Court.

We are thus faced with two possible scenarios when an assessee wants to file a complaint against the vetting institutions:

  1. The assessee’s complaint at the Constitutional Court (or any other Albanian court) is rejected.
  2. The assessee’s complaint at the Constitutional Court (or any other Albanian court) is accepted.

First scenario

In case the assessee is not allowed to have recourse to the regular Albanian court system, including the Constitutional Court, to address any grievance they may have with the reassessment procedure, they will most probably turn to the ECtHR.

In that case, the ECtHR will most probably refer to a very recent decision in Paluda v. Slovakia from May 23, 2017, in which a judge was suspended by the Judicial Council but not allowed to appeal to its decision. An opinion piece in Times of Malta, dealing with a similar judicial reform in Malta, provides a nice summary of the case:

In the case of Paluda v Slovakia decided by the European Court of Human Rights on May 23, the Strasbourg Court held that by denying Slovak judge Paluda the possibility to challenge his suspension from judicial office, he was denied the right of access to a court and that Slovakia was therefore in breach of fundamental human rights.

The amendments to the Constitution agreed to by the government and Opposition last year have introduced for the very first time the possibility of suspending a judge or magistrate from office, that very same procedure which the Strasbourg Court has found in Paluda to violate human rights.

In §54 of its judgment, the ECtHR states:

In this regard, the Court considers it important to draw a clear distinction between the arguably compelling reasons for suspending a judge facing a certain type of disciplinary charge and the reasons for not allowing him or her access to a tribunal in respect of that suspension. In the Court’s view, the importance of this distinction is amplified by the fact that the body taking that measure and the procedure in the course of which it was taken fell short of the requirements of Article 6 § 1 of the Convention and the fact that the measure was taken within as particular a context as that pertaining to the present case.

As both the KPK and KA are not called courts and are not part of the regular Albanian judicial system, in spite of the qualifications of its members and their title of “judges,” a similar violation of ECHR art. 6(1) may be found in the Albanian situation. Such a judgment would subsequently undermine any further vetting efforts.

Second scenario

If the Constitutional Court, or any other Albanian court, accepts the complaint of the assessee against the vetting institutions, this means that both the KPK and KA will fall under the jurisdiction of the judicial institutions that they are supposed to reassess.

This will immediately lead to multiple conflicts of interests. Imagine for example a constitutional judge appealing a decision of the KA to the Constitutional Court. In that case all judges of the Constitutional Court judging this case would have a conflict of interest, because they are all going to be vetted according to the same procedure they are supposed to judge.

Moreover, making all judgments of the KPK and KA fall under the jurisdiction of the Albanian courts means basically to destroy the entire concept of vetting. The entire infrastructure, the constitutional amendments, the International Monitoring Operation, and all the public fights between politicians, will have been completely useless. Once the KPK and KA are not truly independent, the entire value of the vetting is zero.

It should be emphasized that these two scenarios are by no means hypothetical. They can be set off by any of the hundreds of people that will be assessed by the vetting institutions. And either way, it’s bad news.

The author would like to thank legal center Res Publica for its research assistance with this article.