By Vincent W.J. van Gerven Oei
EURALIUS “Steered Away” from Public Procurement Support, Legal Aid, and Civil Code Reform

Last week, we reported on how the EU justice assistance mission EURALIUS IV fell under the direction of “Steering Committee,” which, besides EU and Albanian government officials, contained lawyer Maks Haxhia as representative of the National Chamber of Advocates (NCA), who recently represented both former Minister of Interior Saimir Tahiri at the Serious Crimes Court and Constitutional Judge Bashkim Dedja at the Independent Qualification Committee.

Control over the case of Saimir Tahiri was recently taken over by Donika Prela, after Temporary General Prosecutor Arta Marku dismissed prosecutor Besim Hajdarmataj as director of the Serious Crimes Prosecution. A few weeks later, the house arrest of Tahiri was withdrawn, who is now allowed to await his trial for corruption and membership of a criminal organization in freedom. As we have pointed out before, Marku was appointed after EURALIUS, directed by the Steering Committee of which Haxhia was a member, drafted a “legal opinion” that advised the Socialist Party to unilaterally and unconstitutionally appoint a “temporary” General Prosecutor. There is thus a clear chain of events that links the drafting of this “legal opinion” at the direction of the Steering Committee to the way in which the criminal investigation of Tahiri has been dragged down through political appointments.

To be sure, Haxhia is in a clear conflict of interest, as he is in part responsible for the legal opinion that allowed the politicization of the Prosecution Office, which in turn has benefited one of his clients. This becomes even more clear, when it seems that “professional” and “neutral” EURALIUS experts were even working at the offices of the NCA, led my Haxhia. On page 164 of the EURALIUS Final Report from 1 September 2014 to 31 May 2017 we read: “A EURALIUS expert immediately established a close connection with the National Chamber of Advocates, and he was co-located in the NCA offices.”

Reading through the EURALIUS Final Report gives us an idea of how the Steering Committee was able to transform the mission of EURALIUS from assistance mission funded by the European Commission to the executive branch of the Albanian government into a colonial institution that influenced all branches of government, disturbing the separation of powers, and – through the “revisions” of the Steering Committee – placed all of them under a certain level of executive control.

For example, the original EURALIUS Terms of Reference contained Activity 1.1.2 “Drafting or amending necessary laws and by-laws that are called for by the strategy,” defined as follows:

Support the implementation and monitoring of the new Cross-Cutting Justice Reform Strategy and its action plan, i.e. among other things by assisting the MoJ in drafting or amending necessary laws and by-laws that are called for by the strategy. Ensure that these measures take into consideration relevant measures of the anti- corruption strategy.

However, the Steering Committee revised the description so that it explicitly also includes Parliament, represented in the Steering Committee by then Chair of the Parliament Ad Hoc Committee and current Minister of Interior Fatmir Xhafaj:

Support the implementation and monitoring of the new Cross-Cutting Justice Reform Strategy and its action plan, i.e. by assisting the ongoing drafting and consulting process in Parliament and the MoJ in drafting or amending necessary laws and by-laws that are called for by the strategy. Ensure that these measures take into consideration relevant measures of the anti-corruption strategy.

Here, Parliament was added as a “target” of EURALIUS, even though it was not part of the Standard Operating Procedures defined in their contract, which explicitly only allowed contact with the executive branch, not the legislative branch. And for good reason: The European Commission is an executive body, offering assistance through EURALIUS to another executive body. It is the duty of Parliament and the Constitutional Court to check the legal proposals developed by the government with the aid of EURALIUS. By allowing EURALIUS to assist “the ongoing drafting and consulting process in Parliament” the Steering Committee basically subverts and undermines the legislative process.

Another example is Activity 2.5.1 “New disciplinary procedures for lawyers and the new requirements for professional liability insurance,” originally defined as follows:

Support the MoJ and the National Chamber of Advocacy (NCA) in the implementation of the Law on the profession of lawyers, the new disciplinary procedures for lawyers and the new requirements for professional liability insurance.

This makes sense, because the Ministry of Justice and the executive branch in general should be responsible for the implementation of laws. However, the Steering Committee revised this to:

Support the Parliament and the National Chamber of Advocacy (NCA) in the implementation of the Law on the profession of lawyers, the new disciplinary procedures for lawyers and the new requirements for professional liability insurance.

The Parliament has no role in implementation, but in drafting and debating laws. Again the Steering Committee muddied the distinction between executive and legislative branch, allowing one to take over roles of the other, thus further destabilizing the political system and eventually precipitating state capture of all branches.

Now let us also briefly review the EURALIUS activities that were cancelled by the Steering Committee:

  • Activity 1.2.6: Support the Budget and Finance Directorate of the MoJ in procurement proceedings and optimal allocation of resources.
  • Activity 1.3.2: Support Albanian civil society institutions in their efforts to provide legal aid, in coordination with the SCLA and NCA.
  • Activity 4.2.1: Provide assistance to the MoJ (Codification Directorate) in a review of issues under the Civil Code with a view to updating the Code especially in view of alignment with the EU acquis.

 

So besides muddying a proper legislative process, the Steering Committee, consisting of Albanian government officials, foreign ambassadors, and other representatives such as Maks Haxhia, further canceled support and oversight over public procurement, legal aid provided by civil society, and making the Civil Code conform to EU standards. Are these the priorities of the European Commission or of the Albanian government?