Afraid that the time the vetting is taking will critically impair any beneficial effects that may have been imagined of the justice reform, it appears that the EU Delegation in Albania may be willing to support a dubious interpretation of Albanian legislation and cut corners.
A March 29, 2018 internal document on the “Status Quo of Justice Reform Implementation,” drafted by EU justice assistance mission EURALIUS, and obtained by Exit.al, presents several measures “with a view of preventing risks or overcoming shortcoming due to the delays in the reform implementation.”
Under point 5, the EU Delegation document proposes to “invite the Justice Appointment Council [KED] to assess and rank the candidates for Constitutional Court judges expediently.” The reason, as we have pointed out many times before on these pages, is that the Constitutional Court no longer has a quorum and is down to (then five and by now) three judges: Bashkim Dedja and Vitore Tusha, who both passed the vetting, and Gani Dizdari. who is still to be vetted. As a result, the country is currently in a dangerous legal and constitutional vacuum.
The KED has the duty to assess new candidates of the Constitutional Court and rank them based on their merits. The EU Delegation document therefore proposes the following solution:
Invite the [KED] to expediently draft its internal rules and process the applications. The law does not require the [KED] members to be vetted; therefore, there is no impediment to proceed.
Let us us carefully analyze what is being proposed here by the legal specialists of EURALIUS:
1. “The law does not require the [KED] members to be vetted”: This is not true. Constitution art. 179(11) states the following:
The members of the Justice Appointments Council shall be as soon as possible subject to the transitional re-evaluation of the qualification of judges and prosecutors under Article 179/b of this law.
The Constitution states clearly that the members of the KED have to be vetted “as soon as possible.” Indeed, several of them have by now already passed the vetting procedure, as required by the Constitution. During its first meeting this year on March 19, the KED consisted of the following members:
Vitore Tusha (replacement)
Shkëlzen Selimi (replacement)
Sotiraq Lubonja (replacement)
According to the EU internal document, Gashi recused herself as she has applied for a position at the Constitutional Court. It is unclear, however, whether she actually recused herself and whether she is allowed to sit on the KED while formally being suspended by Temporary General Prosecutor Arta Marku. Xhoxhaj and Trenova failed to pass the vetting at the level of the Independent Qualification Comission (KPK), but both have appealed at the Appeals Chamber. Memçaj and Tusha passed the vetting.
Now, the EU Delegation appears to suggest that while this vetting is going on, the members of the KED, some vetted and others not vetted, should convene “to expediently draft its internal rules and process the applications” of the Constitutional Court judges. In fact, they state that:
the risk, that the functioning of the [KED] will be hampered due to further dismissals by the vetting bodies, is considered low as the vetting of assessees beyond the priority assessees seems to still take several weeks/months. Until then it is assumed that the [KED] has completed the assessment and ranking for the judges of the [Constitutional Court].
In other words, the EU Delegation proposed that a new institution that is the result of the Justice Reform would be allowed to rank Constitutional Court candidates while they would be undergoing vetting (7 are currently being vetted), even though its own members have not yet been vetted. This appears to be a lot like the strategy of the EURALIUS “legal opinion” of December 2017, which advocated the election of an unvetted “temporary” General Prosecutor, which subsequently usurped part of the powers of the KLP.
In both the cases of the legal opinion from December 2017 and the internal document from March 2018, the EU makes proposals that go directly against the logic of the Justice Reform. This logic dictates the vetting of the judicial institutions strictly from the top down, to assure that the KED is vetted and fully functional before the assessment of Constitutional Court candidates, that the KLP is vetted before the prosecutors, and the KLGj before High Court judges. That is the only order that may possibly guarantee that candidates of questionable quality don’t slip through during the vetting process. The EU Delegation and EURALIUS apparently are willing to risk this in order “speed up” the process.
Meanwhile they fail to point out in any of their documents that have been made public why the vetting is going much slower than expected: in September 2017, the Rama government slashed the budget and supporting personnel of the vetting institutions with 40%.
That the EU Delegation and EURALIUS are desperate to cut corners in the Justice Reform is also clear from their proposals regarding the School of Magistrates. As I pointed out before, the School of Magistrates cannot open the application process for new students before the KLP and KLGj are installed. This also means that no replacements for the dismissed prosecutors and judges will be ready once the vetting has finished, supposedly in time for the parliamentary elections of 2021.
EURALIUS seems to acknowledge this as a risk:
The recruitment of a sufficient number of magistrates per year is essential in order to ensure that the ranks of magistrates may be filled following the dismissals caused by the vetting. […]
As the recruitment of candidates for the initial training is a shared competence between the [KLGj/KLP] and the [School of Magistrates], due to the non-establishment of the [KLGj/KLP] the [School of Magistrates] is not entitled to start the recruitment process in 2018.
In order to solve this issue, the Law 96/2016 “on the status of judges and prosecutors” will need to be amended, which is what is proposed in the internal document. However, such a legal change requires a 3/5 majority, which now that the EU Delegation and EURALIUS have facilitated the unilateral approval of Temporary General Prosecutor Arta Marku, seems very unlikely. So once again the short-term vision of the EU Delegation on technocratic solutions has made a political compromise impossible. They also acknowledge this: “It is questionable whether a political consensus may be reached and which would be the ‘prize’ for it.”
Alternatively, they advise that once the KLGj and KLP are installed, they “could determine in the following years [a] significantly higher number of candidates judges/prosecutors to go through the initial training.” However, it is unclear where all these candidates are going to come from, as last year not even 25 could be recruited:
The Governance Law determined therefore a minimum number of trainees of 25 per year in the transitory period. In 2017 not sufficient candidates reached the minimum scores for being admitted to the exam, therefore only 15 candidates were admitted.
All in all, the internal document shows the incompetence, and perhaps also slight panic that has gripped the EU Delegation and EURALIUS. Unable to understand that the Justice Reform is a political process, they continue to propose technocratic and legal solutions to problems whose only solution can be found in Parliament. However, if anything speaks from their reasoning, it is this: they consider the Albanian Parliament dead.