During his visit yesterday to Tirana, EU Enlargement Commissioner Johannes Hahn has supported the government’s legal “fix” of the Status Law that would bring the School of Magistrates under the control of the Temporary General Prosecutor and High Council of Justice (KLD).
At a meeting with the Council of Ministers, Commissioner Hahn stated:
The Parliament needs to amend the law concerning the status of judges and prosecutors such that the School of Magistrates may increase the number of students recruited and trained starting this year.
It is the common responsibility of the government and the opposition to quickly implement the justice reform and in a way it would be strange, I would say, if as the result of a successful vetting process you would end up with a situation in which you do not have competent judges, it would be unfortunate as a result of this successful process.
The irony of this statement is difficult to overstate, because such an “unfortunate” outcome is more or less guaranteed by the manner in which the EU has wholeheartedly supported a series of unilateral decisions of the Rama government, which have not only thoroughly politicized the remaining functional judiciary institutions, but also have made any political solution unlikely.
The amendment Commissioner Hahn referred to has been tabled recently by the Rama government and includes provisions to make sure the School of Magistrates can recruit new students for the coming year.
Commissioner Hahn displayed how little EU functionaries actually know about the details of the justice reform legislation they supported, suggesting that the legal advice offered by the EU through EURALIUS has been of a questionable quality:
Personally I was surprised, but I also should have known that also for this you need a qualified majority to increase the number of students of an educational institution that should have been much more clear. Nevertheless we need to respect the legal definitions.
With this statement, the Commissioner clearly showed not to be informed about the actual legal situation. According to the Status Law, the High Judicial Council (KLGj) and High Prosecutorial Council (KLP) determine the number of recruited students for the School of Magistrates and nominate them to offices once they graduate.
They can change the number of recruits without the need for a qualified majority in Parliament. The qualified majority is actually needed to temporarily remove this competence from the KLP and KLGj, because, due to delays in the vetting caused in part by the government itself, the KLP and KLGj have not yet been installed. This is a crucial distinction.
The opposition has blocked the amendment proposed by the government not because it sets the number of students to be recruited, but because the amendment at the same time “temporarily” proposes to transfer the competence to nominate new judges and prosecutors graduating from the School of Magistrates from the KLGj and KLP to the KLD and Temporary General Prosecutor, respectively. According to the opposition, the Temporary General Prosecutor, which was unilaterally pushed through Parliament by the government, is unconstitutional, while the KLD has been politicized. Allowing either to nominate new magistrates would undermine the vetting.
The amendment of the Status Law, which requires a qualified majority of 3/5, was already proposed by the EU Delegation in an internal EURALIUS memo from March 2018:
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. […]
It is questionable whether a political consensus may be reached and which would be the ‘prize’ for it.
Commissioner Hahn, and the EU Delegation, seem to betting that there will no “prize” at all to be paid for the opposition’s votes. But as the memo indicates, this is “questionable.”