By Vincent W.J. van Gerven oei
KED Vetting and the Constitutional Court – Exit Explains

Recently, I explained the election process of the High Judicial Council (KLGj) and High Prosecutorial Council (KLP) and why it will be already impossible to form the KLGj with the pool of current candidates being vetted.

The Justice Nominations Council (KED) has now met a similar fate. This means that no Constitutional Court members can be elected until a new KED is installed, as the KED has the constitutional role of evaluating and ranking the new members of the Constitutional Court, which are elected by the President, Parliament, and the High Court.

Different from the KLP and KLGj, the KED already exists. But this is only the beginning of the confusion. The members of the KED that are currently being vetted are those that were elected in 2017. In a decision from December 1, 2017, the KPK opened the dossiers of KED candidates Brikena Ukperaj (Lubonja), Ervin Metalla, Gentjan Medja, Kastriot Selita, Altina Xhoxhaj, Besnik Imeraj, Fatjona Memçaj, Gentian Trenova, and Rovena Gashi, the then-members of the KED.

In January 2018, however, Speaker of Parliament Gramoz Ruçi decided to elect (against the will of the opposition) a new KED that partially overlapped with the 2017 KED, which led the KPK to open a new set of dossiers of Enton Dhimitri, Sotiraq Lubonja, Fatos Qato, and Ahmet Jangulli on January 16, 2018. The dossier of the new KED members Artan Broci and Shkëlzim Selimi had already been opened on December 1, 2017.

There are therefore a number of magistrates being vetting as “KED members” even though they have already been replaced. This a situation similar to the one we are facing with the High Prosecutorial Council (KLP), in which candidates have shifted position since their selection as candidates and it is no longer clear whether they are candidates under their former or current function (which holds relevance for the eligibility).

This confusing situation makes it even more shocking that in order to speed up the nomination of a new Constitutional Court, the EU proposed in an internal memo to skip the vetting of the current KED members altogether and allow them to rank candidates for the highest court even though their term had officially ended. Fortunately, the Rama government has not been so brazen (yet) as to take that advice.

Putting aside this legal conundrum, let us consider the current KED members and their vetting.

  1. Artan Broci (High Court)
  2. Altina Xhoxhaj (Constitutional Court)
  3. Rovena Gashi (General Prosecution)
  4. Gentian Trenova (Appeals Prosecution)
  5. Fajtona Memçaj (Appeals Prosecution)
  6. Enton Dhimitri (Appeals Court)
  7. Fatos Qato (Appeals Court)
  8. Ahmet Jangulli (Administrative Court)
  9. Vitore Tusha (Constitutional Court, replacement)
  10. Shkëlzen Selimi (High Court, replacement)
  11. Sotiraq Lubonja (Appeals Court, replacement)

 

Officially, the KED consists of 9 members and includes (cf. Constitution art. 149/d(3)):

  • Two judges of the Constitutional Court;
  • One judge from the High Court;
  • One prosecutor from the General Prosecution Office;
  • Two judges from an Appeals Court
  • Two prosecutors attached to an Appeals Court
  • One judge from an Administrative Court

 

So far, one KED member from the Constitutional Court, Altina Xhoxhaj, was dismissed by the KPK while the other, Vitore Tusha, was confirmed. On July 12, Xhoxhaj appealed her verdict at the Special Appeals Chamber (KPA).

Both members from the High Court, Artan Broci and Shkëlzim Selimi, will be vetted on July 27, while Prosecutor Rovena Gashi from the General Prosecution recently was dismissed.

Three Appeals Court judges, Enton Dhimitri, Sotiraq Lubonja, and Fatos Qato, currently wait to be vetted. From the Prosecution at an Appeals Court, Gentian Trenova was dismissed, while Fatjona Memçaj was confirmed.

From the Administrative Court, Ahmet Jangulli remains to be vetted.

This means that after this round of vetting has finished, a maximum of 6 out of 9 seats on the KED will be filled. This means at least a new application process, a partial re-election, and potentially more vetting.

There is even a slight risk that forming a new KED will become constitutionally impossible. The International Monitoring Operation (ONM) has requested the Public Commissioner (KP) to appeal against the confirmation of Bashkim Dedja at the KPA. If the KP indeed decides to appeal and the KPA decides to overturn the KPK decision and dismiss Dedja, the current Constitutional Court will be down to a single member, Vitore Tusha. As the KED needs two Constitutional Court judges to nominate the others, it literally becomes impossible to nominate a new Constitutional Court without rewriting the Constitution. Dedja must remain a Constitutional judge in order to be able to elect his future colleagues.

Different from the KLP and KLGj, there is an additional complication in case of the KED, because it already exists and has only a 1-year term. If the KED will not manage to be (re-)installed this year with 9 successfully vetted members and rank the candidates for the Constitutional Court, this task will befall on the KED that will be elected for 2019 – which then has to be vetted, and so on. This could in the worst-case scenario lead to a deferment of the installation of the new Constitutional Court until all eligible prosecutors and judges have been vetted.