From: Vincent W.J. van Gerven Oei
The EU’s Own Experts Did Not Recommend Vetting

Over the last few months I have written extensively about how the justice reform in practice has become a massive problem for the Albanian constitutional order and rule of law.

Not only have the delays in the vetting – exacerbated by the initial budget cuts of the Socialist government – led to significant and unconstitutional delays in establishing the main governance institutions of the High Prosecutorial Council (KLP), High Judicial Council (KLGj), and Justice Nominations Council (KED), their absence, in turn, has snowballed into an unconstitutionally elected “Temporary” General Prosecutor, a Constitutional Court without quorum, a decapitated High Court, and a missing Special Prosecutor and National Investigation Bureau. A slaughter of “unqualified” candidates for the KLP, KLGj, and KED by the Independent Qualification (KPK) then led to another illegal move by the government, reopening the call for applications.

It seems more than likely that Albania will remain without Constitutional Court for another year, as a new KED – the body that ranks candidates for the Constitutional Court – will be elected for 2019, which will have to be vetted all over again. Furthermore, the current candidates for the Constitutional Court still await vetting themselves. Moreover, the High Court has been decimated by the vetting, working up a backlog of tens of thousands of cases, while the confirmation of its President by the KPK has exposed the double standards of the vetting. The appeal by the Public Commissioner is still pending. This means that by all means and purposes, Albania has become a lawless country – a country without functioning justice system.

In spite of this complete collapse of the Albanian justice system, former EU ambassador Romana Vlahutin claimed just before her recent departure that “within the year [2018], all new institutions can start operating.” That is the most miserable swan song ever heard, sung by a hopefully former diplomat we will never hear of again. Moral bankruptcy is perhaps the best qualifier with which to describe the EU Delegation in Tirana as she left it.

Under this barrage of bad news, it is perhaps difficult to understand the initial intentions behind the justice reform, which was celebrated as the most far-reaching and innovative rethinking of a justice system in the EU’s periphery. No matter the failures in Romania and Kosovo – this time, the EU would get it right.

In order to properly evaluate the current state of the justice reform, we should not only hold it against the propagandistic promises of foreign diplomats and Albanian politicians, but against the goals that the European Union actually set out to achieve with the justice reform.

Remarkably, getting the required reports from the European Commission proved more difficult than expected, perhaps because they didn’t want us to know. Our requests were refused until the EU Ombudsman finally mandated the release of four reports from 2013 and 2014, including the “2014 Report on Independence, Impartiality, Accountability, and Professionalism of the Albanian Judiciary,” and the “2014 Report on the Efficiency of the Albanian Judiciary,” prepared by external judicial experts.  I will focus on the former. Both reports were drafted in the context of the “Peer Assessment Mission on Judicial Reform in Albania” from 2014. The titles of these reports already indicate how the EU (used to) think about the justice reform: it was needed to safeguard the “independence” and “efficiency” of the judiciary. Both terms have subsequently been jettisoned from the public discourse around the justice reform, which has been spinned both by foreign diplomats and the government as an assault on “corruption.”

When we look at what the EU report actually says about corruption in the judiciary, we see that this is mainly phrased within the context of the politicization of the High Court of Justice (KLD) due to the presence of the Minister of Justice, and overlapping competences. The recommendation is to depoliticize the KLD, give it sole authority over disciplinary cases, and broaden the Inspectorate’s tools to tackle corruption. Other recommendations are the increase of the salary of the judges, and installing audio recording systems in all court rooms. At no point does the expert suggest wide-spread and endemic corruption as the reason to drastically reform the judiciary. Yet that has become its main, political motivation.

One can only wonder when and why the bureaucrats in Brussels thought up the full-scale re-evaluation of judges and prosecutors, because no such thing is recommended in any of the expert reports. Did they feel adventurous? Or did they fall for Prime Minister Rama’s own arguments, who saw in the justice reform an opportunity to capture the judiciary – as he has done now. The truth may not come out, but let me reiterate that the full reassessment of judges and prosecutors has no ground in any of the reports the European Commission provided us with.

The executive summary has the following to say about the state of Albania’s judiciary in 2014:

Nevertheless, serious work still needs to be done. Albania needs to update its judicial reform strategy and further strengthen the independence, efficiency, transparency and accountability of its judicial institutions, reinforcing the fight against corruption, money laundering, drug cultivation and human trafficking.

Backlogs and mistrust in the justice system still are key issues to overcome. Poor interinstitutional cooperation, lack of human resources and weak budget planning and allocation remain a concern.

Let us now look at where we actually are. Rather than strengthening the “independence, efficiency, transparency and accountability” of judiciary, the justice reform has weakened them. The General Prosecution Office has de facto been taken over by the government, after a controversial replacement of former General Prosecutor Adriatik Llalla was unconstitutionally pushed through Parliament by a simple majority. Its efficiency has dropped markedly as the result of a full-on extermination of the higher echelons of the Constitutional Court and High Court, a situation which will only worsen with the expected removal of about 50% of the remaining judges, prosecutors, and supporting staff in the coming years. Meanwhile, deadlock in Parliament has secured that no new judges and prosecutors will be leaving the School of Magistrates to fill in the gaps for the foreseeable future.

The EU expert, many of whose recommendations ended up in the large legislative reform packages shepherded through Parliament in 2016, is not unaware of the problems the judicial reform will encounter. Again, these are not issues of a technical, but rather of a political nature:

The engagement of the Parliament is mandatory. Some of these reforms demand a political consensus to find common solutions on such laws that need a qualified majority to be adopted, including the required constitutional amendments. The expert cannot say if the current degree of political maturity in Albania will allow reaching that kind of consensus in the short term, but it should be possible and probably will occur, considering the responsibilities and opportunities at stake.

Even though the initial constitutional package was passed – after enormous pressure by the EU and US – with a bipartisan vote, unity quickly evaporated over the organic laws needed to implement the constitutional changes, which were all pushed through Parliament by the socialist majority of SP and SMI, and now openly show their legislative weaknesses, and are a scandalous witness to the poor job done by the judiciary assistance mission EURALIUS. And now that one of these organic laws needs amending, the opposition understandably refuses to budge – thus exacerbating the entire situation.

The expert continues:

General comments and constructive rhetoric on the judiciary are a natural part of the wider democratic debate, but it should not breach the independence “golden rule” neither its public opinion perception, in such a way that could undermine the confidence in the regular functioning of the judiciary. In conclusion, the maturity of the democratic building process of the judiciary should prevail enshrined by the principles of mutual trust, separation and interdependence of powers, positive communication and constructive rhetoric.

Instead, every single aspect of “wider democratic debate” has undermined “the confidence in the regular functioning of the judiciary,” from the invectives of the Prime Minister to the general attitude toward the judiciary reflected in the media, which solely focuses on the spectacular vetting process as synonymous to the justice reform. The “principles of mutual trust, separation and interdependence of powers, positive communication and constructive rhetoric” were thrown out of the window from day one.

Even though many of the final recommendations of the EU expert report ended up being addressed in the justice reform legislation, both the European Commission and the Albanian government failed to grasp the spirit of the reform as it was conceptualized – to safeguard the “independence, efficiency, transparency and accountability.” These are targets that cannot be met with only legislation. They need the creation of a bipartisan climate of respect for the rule of law.

The current miserable state of the justice reform embedded within a destitute, bankrupt Albanian political system is the result of a wilful blindness on the part of the EU, a naive belief in the legal text, and strongman methods to push legislation through with executive force. It is also the result of the unadvised “add-on” of the vetting, which has completely tilted the reform from a restructuring of judiciary governance to a public reckoning with every single judge and prosecutor, thus further undermining any of its credibility.

And not a single warning of the EU’s own expert was ever heeded.