By Vincent W.J. van Gerven Oei
A Whitewashed, Cherry-Picked Progress Report

Yesterday, the European Commission (EC) published its annual Progress Reports on the Western Balkan countries, including Albania. It also decided to recommend the opening of accession negotiations with Albania and Macedonia “in light of progress achieved, maintaining and deepening the current reform momentum.”

This is second time that the EC advises the European Parliament (EP) and European Council that negotiations with Albania be opened. The first time was in the Progress Report of November 2016. That particular Progress Report was later heavily amended in the EP, only to be later vetoed by Austria. The principles of that Progress Report, however, have been guiding the integration process for the last two years.

When the Committee on Foreign Affairs (AFET) of the EP adopted the amended Report on February 3, 2017, the now infamous “five key priorities” were explicitly included:

[The EP] [w]elcomes Albania’s continuous progress on EU-related reforms, in particular the consensual adoption in July 2016 of constitutional amendments paving the way for a deep and comprehensive judicial reform; stresses that not only consistent adoption but also full and timely implementation of reforms on all five key priorities and sustained political commitment are essential in order to further advance the EU accession process; encourages Albania to establish a solid track record with regard to such reforms;

[The EP] [w]elcomes the Commission’s recommendation for opening accession negotiations with Albania; fully supports Albania’s accession to the EU, and calls for the accession negotiations to be opened as soon as there is credible and sustainable progress in the implementation of comprehensive judicial reform and the fight against organised crime and corruption, in order to keep the reform momentum;

The final formulation appeared to be a compromise between the German demand that all five key priorities were hard conditions, and the position of the EC, which only emphasized the judicial reform.

So let us have a look at the 2018 Progress Report drafted by the EC. Already the introduction to the Report makes clear that the EC has basically ignored the conditions set by the EP in the final adopted version of the 2016 Progress Report, and has continued to evaluate Albanian progress based on its own criteria:

In November 2016 the Commission recommended the opening of accession negotiations subject to credible and tangible progress in the implementation of the justice reform, in particular the re-evaluation of judges and prosecutors (vetting). The Commission has continued to monitor thoroughly the developments in the context of the Five Key Priorities.

Not a single word about “full and timely implementation.” Not a single mention of “credible and sustainable progress.” Instead, the EC has “monitored thoroughly.” And this monitoring, we may conclude from what follows, was actually superficial, to say the least.

Reading through the Progress Report I was struck by the shocking way in which the European Commission has white-washed the many violations of the rule of law by Albanian government and cherry picked changes on paper over their actual implementation. The adherence to the rule of law, the central tenet of the European Union, is a practice, not a text. It is based on actions, not words. Yet the entire Progress Report seems to be enthralled with only that: words.

Moreover, the Introduction to the Progress Report, which will probably be the only thing most people will read, if it all, is clearly a sanitized and politically desirable version of the remaining 100+ pages. It exaggerates all that was good, and ignores all that was bad. It paints a picture of success, while in fact it should be the representation of the utter failure of the European Commission and it representation in Tirana to steer Albania into the direction of democracy and rule of law. On the contrary, it has expedited its ramshackle ride into state capture by organized crime and authoritarianism.

Key Priority 1: Public Administration Reform

The EC concludes:

The relevant legal and strategic frameworks are now in place. Implementation of public administration reform has continued consistently, following the adoption of the civil service legislation, advancing further towards a professional and merit-based civil service.

The EC conveniently forgets to mention that a December 2017 report by the Supreme State Audit Institution (KLSh) concluded that the implementation of the EU-funded Human Resource Management Information System (HRMIS) of the public administration has thoroughly failed: “The effectivity and efficiency of this system has not been accomplished and it is still not known when it can be accomplished.”

Moreover, a recent report funded by the EU and OECD clearly concludes that public administration is not merit-based:

the lack of specific regulations to ensure merit-based recruitment, integrity rules and disciplinary procedures for some groups of public employees exercising public authority and excluded from the scope of the civil service through the amendments to the CSL [Civil Service Law] passed in 2014, remains a matter of concern. […]

There is not a uniform, comprehensive legal framework to ensure merit-based recruitment and dismissal of those public employees not covered under the CSL.

This is also later affirmed by the Progress Report itself: “Appointments in breach of the civil service law continue to be a common practice hindering merit based civil service.” In other words, neither the “legal” nor the “strategic frameworks” are in place. The state doesn’t even know who works for them, while Prime Minister Edi Rama and his government continue to violate the Public Administration Law by firing civil servants at will. A recent Freedom House report explicitly cites the danger of Albania sliding into an autocracy.

Nevertheless, the Progress Report adopts an at times propagandistic tone to defend the Albanian government. Speaking about the administrative chaos after the elections, the Report states:

The restructuring process created a temporary vacuum in some areas of governance, which shall be swiftly overcome, in order to prevent losses of efficiency in the continuation of reform implementation.

The usage of the subjective qualification “swiftly overcome,” is remarkable here, especially because the above reports and facts have shown that public administration will not overcome anything anytime soon. “Swiftly overcome,” seems rather a copy-paste from a hopeful government memo sent to EU Ambassador Vlahutin.

Key Priority 2: Justice Reform

The EC concludes:

Implementation of the various components of the reform is progressing well, in line with the legal provisions, in terms of steps and calendar.

The level of willful blindness and ignorance in this statement is simply infuriating. There is hardly a single component of the judicial reform that is “in line with legal provisions.”

As mentioned in the Progress Report, the judicial reform includes the installation of High Judicial Council (KLGj), High Prosecutorial Council (KLP), a Special Prosecutor (SPAK), and several other institutions.

The Constitutional amendments adopted in 2016 stipulate clearly that the KLP and KLGj should be established within 8 eight months from the entry into force of the amended Constitution. As the amendments were adopted in July 2016, the KLP and KLGj should have been installed in March 2017. It seems however very unlikely they will be established before the end of 2018.

These delays have led to a Constitutional crisis concerning the election of a Temporary General Prosecutor, further delays in the establishment of SPAK and the National Bureau of Investigation, complete paralysis at the Constitutional Court and High Court, and an effective legal vacuum in which the executive has all but taken over the judiciary.

Temporary General Prosecutor Arta Marku has in the meantime made several unconstitutional changes to the structure of the Prosecution Office, which remain unmentioned in the Progress Report. Instead, the European Commission claims: “Judges and prosecutors cannot be transferred without their consent.” This is exactly what has happened at a large scale since December 2017!

Furthermore, the Progress Report claims that as regards the vetting, “800 professionals are currently undergoing scrutiny.” This is again factually incorrect. According to the announcements of the Independent Qualification Commission (KPK), only 138 cases have been opened or processed.

The Progress Report also claims that the assessment of “all judges at the Constitutional Court, the President of the High Court and the Chief Prosecutor” has been “completed.” This is again false. So far only three judges of the Constitutional Court have been vetted (leading to one resignation, one dismissal, and one confirmation), while High Court President Xhezair Zaganjori and General Prosecutor Arta Marku have not yet been scheduled for a hearing. And that is only the first step in the vetting, to which appeal at the Appeal Chamber, and eventually European Court of Human Rights is possible. Later in the Report the EC is more careful: “Following the establishment of the vetting institutions, the first set of priority cases is being reviewed.” But who reads that far?

Finally, the Progress Report misrepresents the role of the Constitutional Court in the evaluation of the legality of the vetting legislation. It states: “The constitutionality of the vetting process was contested twice before the Constitutional Court but the latter rejected these appeals.” Although the vetting law as a whole was not rejected, the Constitutional Court did rescind several articles of the vetting law which were unconstitutional. Again, a form of cherry picking from the side of the EC.

Key Priority 3: Fight against corruption

What is remarkable is the EC appears to suggest that the “progress” in the judicial reform, namely several magistrates who resigned or were dismissed during the vetting process, should be also counted as victims in the fight against corruption:

Regarding convictions of high-level state officials, important results have been achieved in the judiciary. Convictions have been rendered against prosecutors and judges. As regards the opening of new cases against high-state officials, these also increased. However, the number of final convictions of high-state officials remains very low.

The whole point of the fight against corruption was precisely to put politicians in jail, none of which has actually happened. The SPAK, again mentioned by the EC, remains a complete fiction, not to be realized until at least 2019. So apart from double-counting the victims of the judicial reform and the non-existent SPAK, what has the EC to show for? A “very low […] number of final convictions of high-state officials.” Yes, exactly zero.

Instead of pointing out the unconstitutionality of the entire situation, the Progress Report approvingly mentions Minister of Interior Fatmir Xhafaj’s task force “The Power of the Law”:

In November 2017 the Ministry of Interior adopted the action plan on the fight against organised crime (operation ‘Power of law’), which provides for setting up multi- disciplinary task forces to monitor and implement it, with a special focus on recovery of proceeds of crime. In this framework, the Ministry of Interior and the General Prosecutor Office signed in February 2018 a cooperation agreement on jointly tackling serious crimes and corruption. The agreement will be in force and applicable until the establishment of the special prosecutor’s office (SPAK).

But as I have explained before, this “action plan” has a very dubious history rooted in the first Rama government, and places prosecutorial tasks squarely under the control of the Ministry of Interior Affairs, effectively blurring the boundaries between judiciary and executive. The excuse is of course the fact that the SPAK has not yet been established. That is very convenient, but the reality is a weakening of the judiciary, not a strengthening.

The Report here again follows a pattern that I have noted elsewhere. In the Introduction, everything is happiness and sunshine, but the actual facts a buried in the nitty-gritty text of the Report: “However, corruption is widespread and remains an issue of concern. The impact of various measures has yet to be seen.” Yes – so no progress whatsoever.

Key Priority 4: Fight against organized crime

Instead of announcing that organized crime has basically captured the Albanian state, while reaching alarming levels of prominence in several EU countries, including the UKFrance, and the Netherlands, leading to alarm with EU ministers.

The Progress Report remarks “large scale law enforcement operations [which] led to successful confiscation of large quantities of cannabis stockpiled from previous crops and, recently, also cocaine from Latin America.” No mention of the fact that not a singular high-level criminal has been arrested, or where this cocaine suddenly came from. Hint: years of cannabis profits under Rama have consolidated trade routes and Albanian drug cartels now have the cash to move into the more lucrative cocaine business. Again, the actual facts are buried in the middle of the report: “Nevertheless, Albania remains the main source of cannabis herb trafficked to the European Union.”

The EC even approvingly mentions legislation on “police vetting,” unilaterally pushed through Parliament by the Socialist Party (the Report speaks erroneously about “wide cross-party consensus”), which, as I explained before, will reshape the State Police hierarchy directly under the control of Minister of Interior Affairs Fatmir Xhafaj. Rather than an independent law enforcement agency, the State Police will become completely politicized. This is not progress, unless progress toward a police state.

Key Priority 5: Reinforce protection of human rights

In this section, the European Commission basically wallows in platitudes, unable to point at a single concrete point of improvement, while omitting the numerous backslides that happened under the Rama government, including arbitrary demolition of private property and expropriation under the guise of “seaside property vetting.”

Not to forget the deafening silence of the government in the face of rampant hatespeech against the LGBT community from public figures and government officials and the constant intimidation and defamation of the press by Prime Minister Rama. But no surprise that the EC sees no harm here, as Commissioner Hahn stated: Rama has “the right to express [his] opinions.” Again, buried deep in the report we find a different type of claim: “The authorities are expected to pursue zero tolerance of threats or attacks against media, and refrain from making statements that may create an environment not conducive to freedom of expression.” But no mention is made of who those “authorities” actually are. Not a shred of criticism.

The Progress Report also simply misrepresents basic issues surrounding press freedom. For example, the Report states:

A TV programme was closed down and two journalists were dismissed following an investigative story involving a local official in October 2016, no official complaints were submitted.

This was the case involving the death of underage worker Ardit Gjoklaj on the municipal landfill of Sharra, which involved Tirana Mayor Erion Veliaj in an extensive coverup operation that got two journalists. Alida Tota and Artan Rama, fired. Artan Rama’s previous employer then filed a lawsuit against him over his reporting regarding its links with the government. Rama won the lawsuit in December 2017. So even though “no official complaints were submitted” concerning the Gjoklaj case, this is again only half of the story.

Electoral Reform

The rest of the report is truly a magisterial exercise in white-washing, cherry-picking, and understatement. As regards electoral reform, the EC declares that “a number of OSCE/ODIHR recommendations still remained outstanding.” In fact, 75 recommendations from the OSCE/ODIHR reports of 2013, 2015, and 2017 remain unimplemented, while the bipartisan Electoral Reform Commission of Parliament was recently dissolved without any progress whatsoever on any of the recommendations.

Remarkably, the Progress Report states:

The newly established ad hoc parliamentary committee on electoral reform should address outstanding OSCE/ODIHR recommendations in an inclusive manner, well ahead of the 2019 local elections.

As of April 13, this is factually untrue. To quote a recent statement of the Albanian Helsinki Committee: “We are late and this delay is unjustified if we look also at the history of electoral reform in recent years.”

Saimir Tahiri

Exactly one line was devoted in the Progress Report to the failure of the Parliament to completely lift the parliamentary immunity of former Minister of Interior Affairs and right hand of Prime Minister Edi Rama, in a shameless spectacle in which the legislative branch basically abrogated the rights of the judiciary by staging a mock trial in Parliament.

About the government-sanctioned protection of the former Minister, the European Commission writes the following: “At the request of the prosecution, in October 2017 Parliament partially lifted the immunity of MP Tahiri, former Minister of Interior.”

This pathetic excuse of a sentence reflects the fact that not a single EU representative has openly condemned former Minister Tahiri or openly supported the work of the Prosecution. After years of clamoring and complaining about high-level corruption (including in the current Progress Report), in the one case in which two different countries, including an EU member state, have found evidence of corruption and membership of a criminal organization of a former minister, silence has descended on Mount Brussels.

Bonus: Operational radars

As a final illustration of the level of uninformedness of the EC, I give you the final statement: “The Integrated Sea Surveillance System of radars for the ‘blue’ (sea) border is operational.”

A report dated August 31, 2017 by General Police Director Haki Çako clearly states that the system was not fully operational, missing many drug transports from Albania to Italy. Later evidence from the Habilaj investigation by the Italian prosecution showed the cause: criminal organizations had infiltrated the radar control room, switching them off to let boats loaded with drugs pass unnoticed.

How can we take any of this seriously?