Last week, Temporary General Prosecutor Arta Marka called Appeals Prosecutors to apply for a seat on the High Prosecutorial Council (KLP), seeing as there aren’t sufficient candidates who passed the vetting.
This move on the part of Marku contradicts the law and, like the call put out by the head of the High Court Zaganjori a few weeks ago, is a procedure without legal basis in an attempt to save a badly designed reform.
As Exit has already explained, according to the Constitution, the KLP will contain 11 members, 6 from the ranks of the prosecutors (which are currently being vetted), and 5 lawyers from the ranks of civil society, advocates, and pedagogues. These have been elected by Parliament earlier this year, after three rounds of voting. The 6 members from the ranks of the prosecutors will be elected by the prosecutors of all levels at the Prosecution Office. Two of these must be Appeals Courts prosecutors, and at least one of them must be from a court not in Tirana.
However, out of the first Appeals prosecutor candidate list, only one (Arben Dollapaj) successfully passed the vetting. Whereas the other three, Besa Nikëhasani (Shkodra), Luan Kaloçi (Tirana), and Bujar Hoti (Durrës), were dismissed for failing to justify their wealth.
Law 115/2016 on Governance Institutions of the Justice System provides different procedures for the election of the first KLP prosecutor members, and the election of future generations of prosecutors that will replace them.
According to article 279:
Not later than 1 month from the entry into force of this law, the prosecutors interested in the position of a member of the High Prosecutorial Council, shall submit to the Independent Qualification Committee a request expressing their interest to run as candidate and the documentation required for the re-evaluation according to the law “On transitional re-evaluation of judges and prosecutors in the Republic of Albania”. If the Independent Qualification Committee has not been established yet, the request shall be submitted to the Secretary General of the Assembly.
Candidates will also present all necessary documentation to the General Prosecutor, who will then assess whether or not they meet the legal criteria.
The six KLP members are elected out of those candidates that meet the criteria and pass the vetting. All the country’s prosecutors, of all levels, participate in this election.
However, Law 115/2015, drafted and approved by a simple Socialist majority, does not account for what must happen if none of the candidates passes the vetting or meets the criteria.
This legal impasse shows precisely that the Justice Reform was drafted in a flawed manner, which is now leading to a series of illegal actions on the part of institutions of justice.
In order to resolve this situation, the Socialist majority and the General Prosecutor they elected, Arta Marku, have chosen to pursue an extra-legal solution. That is, to ignore Law 115/2016’s transitional provisions, which determine the ways in which the first KLP will be created, and use instead the law’s provisions concerning the future generations of KLP prosecutors that will replace the first.
Regarding this procedure, article 107.1 of this law states:
The Prosecutor General shall, not later than 4 months before the date of expiry of the mandate of incumbent prosecutor members of the High Prosecutorial Council, launch the call for submission of expressions of interest by the prosecutors interested in the position of a High Prosecutorial Council member.
It is clear that the above provision is not valid for the initial constitution of KLP, but only for the replacement of prosecutors whose terms have ended.
This is not the first time Temporary General Prosecutor Arta Marku undertakes extra-legal shortcuts to resolve tricky situations. Since her appointment in December 2017, all the dismissals and transferals of prosecutors she has done are extra-legal. Additionally, the illegal decision to extradite Nezar Seiti and the dismissal of the Tahiri case prosecutors have put the investigation of this case on a blind path, and, lately, her and her friend’s, Donika Prela, decision to draw a new lot to appoint new prosecutors to the Shullazi case, led to a “storm” in the Serious Crimes Prosecution.