From: Vincent W.J. van Gerven Oei
How Late Is Too Late? – A Review of the Justice Reform

The bland comments of the foreign diplomats residing in Tirana are ever less able to cover up the bleak reality of the justice reform. Responding aimlessly to the exotic distractions offered by Albanian politics and the arcane details of the actual legal text of the reform package, which none of them actually seem to have properly read or understood, they outdo each other in postponing deadlines and articulating senseless aims and goals, while slowly but certainly sinking into the quicksand that they once imagined to be stable foundation for a “European” future.

Every well-meaning statement, every call for honest souls to step up and lend a hand for the good of the country, every appeal to bipartisanship, sucks them deeper into a deadly pit from which they can no longer extract themselves. And, as the liquid sand has nearly reached their lips, they proudly exclaim: “The justice reform is a great success! We did it!”

To gain some much-needed perspective on our current predicament, we would do well to start at the moment the actual clock of the justice reform started ticking, namely with the bipartisan approval of the Constitutional amendments in 2016.

On July 22, 2016, 139 of the 140 Albanian MPs voted in favor of Law 76/2016 “On several additions and changes in law 8417, October 21, 1998, ‘Constitution of the Republic of Albania,’ amended.” According to art. 47 of law 76/2016, the law would enter into force 15 days after its publication in the State Gazette. The law was published on July 27 in State Gazette 138, which means it entered into force on August 11.

The Constitution set a number of hard deadlines on the installation of the new governance institutions of judiciary: High Judicial Council (KLGj), High Prosecutorial Council (KLP), and High Justice Inspector (ILD). The KLGj is responsible, among others, for the nomination of new judges. The KLP is responsible, among others, for the nomination of the General Prosecutor and the establishment of the Special Prosecutor (SPAK) and the National Investigation Bureau (BKH). They are also responsible for setting the quorum for students at the School of Magistrates, and nominating graduates to their new offices in the judiciary. In other words, an early installation of the KLP and KLGj is essential for the proper unfolding of the justice reform. As parts of the judiciary and prosecution fail to pass the vetting, the KLP and KLGj can appoint their replacements. As a result, Constitution (art. 179) mandates that the KLP and KLGj should be formed within 8 months from its entry into force, thus, before April 11, 2017.

In order to start with the vetting, Parliament passed on August 30, 2016, with 88 votes in favor, Law 84/2016 “On the Transitional Re-evaluation of Judges and Prosecutors in the Republic of Albania,” a.k.a. the Vetting Law. The law did not prioritize the vetting of prospective KLP and KLGj members, even though they were essential to the judicial reform progress. The law was published in the State Gazette on September 23, and entered into force on October 8. The Democratic Party and the Union of Judges of Albania (UGjSh) appealed parts of the law at the Constitutional Court, which published its verdict on January 18, 2017, judging the Vetting Law to be constitutional.

Other justice reform laws were challenged as well. Law 96/2016 “The Status of Judges and Prosecutors in the Republic of Albania” (Status Law), adopted by Parliament on October 6, 2016 with 86 votes of the majority, was challenged at the Constitutional Court by the National Society of Judges of the Republic of Albania (ShKGjRSh) and the UGjSh. On April 16, 2017 the verdict was published. This time, the Constitutional Court partially agreed with them. Meanwhile, it became apparent that the application process for the KLP and KLGj didn’t yield enough qualifying candidates.

Both the fact that only the majority voted for the Status Law, and that it was successfully challenged in the Constitutional Court showed that the legislative process hadn’t been completely successful, and that the bipartisan spirit had broken down, in spite of enormous international pressure. Similarly, law 97/2016 “On the Organization and Functioning of the Prosecution Office in the Republic of Albania” (Prosecution Law) and law 98/2016 “On the Organization of the Judicial Power in the Republic of Albania” (Judicial Power Law), were only passed with the votes of the majority on October 6. This was to have immediate negative consequences.

On December 3, 2017, the 5-year mandate of General Prosecutor Adriatik Llalla ended, and a new General Prosecutor should have been nominated. However, the KLP still didn’t exist to do so, and the Prosecution Law was unclear on the transition period. An ad-hoc, and poorly argued “legal opinion” by the US OPDAT mission and EU mission EURALIUS was used by the government to unilaterally nominate Arta Marku as “Temporary” General Prosecutor, a function that legally does not exist, but has now found its way into the language used by the vetting institutions. Marku was sworn in on December 18 by a simple majority of 69 MPs of 76 present – less than 50% of the total number of MPs. Her appointment led to another cascade of unconstitutional actions and has created the image of completely partisan Prosecution Office.

Meanwhile, the government approved the personnel and budget of the vetting institutions, the Independent Qualification Commission (KPK), Special Appeals Chamber (KPA), and the Public Commissioner (KP), only in September 2017, slashing the budget with 40%. The first vetting dossiers, including those of prospective KLP and KLGj member were opened on December 1, 2017, 8 months after the Constitutional deadline for their installation. Currently, 3 KLP and 1 KLGj candidate still await vetting, while there have been numerous irregularities with the application process.

Since May 11, 2018, the Constitutional Court is without quorum. More than 50% of the KED, which ranks candidates for the Constitutional Court, has failed to pass the vetting. Meanwhile, no new students can be admitted at the School of Magistrates, as the unilaterally passed Status Law requires.

This avalanche of dates, laws, and procedures may be overwhelming, but a necessary antidote against the simplistic terms in which both the international community and the government has portrayed the justice reform and its progress. The interactions between Parliament, currently controlled by the Socialist majority, the vetting institutions, and what is left of the judiciary branch are complex and highly political in nature.

The following chart sketches out the main development of the justice reform since July 2016. This is still a simplified picture. Omitted are the election process of the non-magistrate members of the KLP and KLGj, the many confrontations in Parliament between opposition and majority, the role of the Venice Commission in the early drafting process, the statements of EU and US ambassadors on the “timeline,” and so on. I hope, nevertheless, that it gives some picture of the current state of the justice reform and how we got where we are today.