From: Vincent W.J. van Gerven Oei
After All, Temporary Prosecutor General May Not Be What Lu and Vlahutin Assured She Would Be

Several media have reported that Temporary Prosecutor General Arta Marku has started a thorough reorganization of the prosecution system, planning to change department directors, including the head of the of Serious Crimes Prosecution Office, which is currently investigating former Minister of Interior Saimir Tahiri on drug trafficking charges, and several other high-ranking collaborators of Prime Minister Edi Rama.

Arta Marku was elected Temporary Prosecutor General last week, after a legal opinion produced by OPDAT and EURALIUS missions and officially embraced by ambassadors Donald Lu and Romana Vlahutin, supported an unconstitutional election procedure with a simple parliamentary majority and no vetting. She ended up being elected by less than half of the total number of members of parliament.

Marku is not a politically neutral figure, but a protégé of the socialist chairman of the parliamentary Legal Affairs Commission Ulsi Manja.

OPDAT and EURALIUS core argument in support of government’s choice was that the Temporary Prosecutor General was “like” a deputy Prosecutor General, and as such not subject to the constitutional requirements of vetting and a 3/5 majority vote.

In this, they referred to Law 97/2016 On the organization and functioning of the prosecution in the Republic of Albania:

The fact that the PO [prosecutor office] Law foresees specific rules for the temporary acting Prosecutor General, who has a limited period of mandate and is not to be considered the Prosecutor General, but just a senior prosecutor who in the transitory period is assigned the functions of a Prosecutor General, suggest that this figure is rather comparable with the figure of a deputy Prosecutor General, which is not regulated in the Constitution.

The government waved this argument insistently in the face of the opposition, which vehemently condemned the entire procedure.

Now appears that the EU and US representatives have been miserably duped by the Rama government.

If Marku is like a Prosecutor General…

According to Law 97/2016 On the Organization and Functioning of the Prosecution Office in the Republic of Albania, art. 38(2)(e) it is the competence of the Prosecutor General to

[define] the general structure, and standard rules of the organization and functioning of the prosecution offices of general jurisdiction and approves the organogram and the internal rules of procedure on the functioning of the General Prosecution Office

In other words, the Prosecutor General is allowed to determine the structure of the prosecution office.

However, Constitution, art. 149/a(1)(a), clearly states that “appointment” and “transfer” of prosecutors is the task of the High Prosecutorial Council (KLP) and not the Prosecutor General. However, as the KLP has not yet been formed, we follow Law 97/2016, art. 109(3) which states that until the KLP is installed the competences of the Prosecutor General are determined by Law no. 96/2016 On the Status of Judges and Prosecutors in the Republic of Albania, art. 160(2) .

According to this law, until the installation of the KLP, the Prosecutor General can only suspend prosecutors, appoint newly graduated prosecutors, and certify the end of the appointment of prosecutors that have reached the retirement age. Although, Marku will not be able to “appoint” or “transfer” them, this may give her enough wiggling space to get rid of certain “opposition” prosecutors should she really want to.

But of course, she can only do so if she is indeed like a Prosecutor General.

If Marku is like a Deputy Prosecutor General…

Article 39(2)(a) of Law 97/2016 states that the Deputy Prosecutor General is allowed only to

perform only those duties that are necessary for the functioning of the General Prosecution Office, prosecution offices attached to courts of general jurisdiction and the Judicial Police.

In other words, the Deputy Prosecutor General is not allowed to deal with either the “structure” or the “organization” of the prosecution office, such as the nomination of the new directors and reshuffling of the ersonnel.

The Deputy Prosecutor General is not mentioned in the Constitution or Law no. 96/2016, so this means that Marku definitely could not “nominate” or “transfer” anyone in the prosecution, but merely administrate it until the new Prosecutor General is elected from the candidates proposed by the KLP.

Which one will it be?

If, in the coming days, Marku will indeed decide to change the head of the Serious Crimes Prosecution Office, the department investigating several socialist politicians, or shuffle around other personnel, this will show  she is not like a Deputy Prosecutor General, but exerts the full functions of the Prosecutor General, stretching the edges of the “transitory” legal framework.

This, in turn, implies that the main argument provided by OPDAT and EURALIUS – that the Temporary Prosecutor General is like a Deputy Prosecutor General and for this reason her election can bypass the Constitution – will turn out to be false.

Unfortunately, this would be the expected, and appropriate, correction of these international legal “experts” who have once again failed to grasp the “winner-takes-all” reality of Albanian politics.