Following Law no.115/2016 “On the Governance Institutions of the Justice System,” approved solely by the Socialist majority in November 2016, the Constitutional Court, High Court, and General Prosecution have sent the Presidency a list of eligible candidates for the Justice Nominations Council (KED). The High Council of Justice (KLD) has not yet provided a list with candidates, thus violating the November 15 deadline.
Law no. 115/2016 art. 221(3) specifies that besides the Constitutional Court, only the High Judicial Council (KLGj) and High Prosecutorial Council (KLP) can send in candidates. The KLP and KLGj, however, have not yet been installed. As a result, the transitory procedures specified in art. 284 are followed, which calls upon the High Court, General Prosecution, and KLD.
KED members are vetted with priority. 7 members of the current KED failed to pass the vetting this year. Of the 2017 KED, Kastriot Selita remains to be vetted, while of the current KED, Enton Dhimitri and Fatos Qato still remain to be vetted.
The nine members of the KED comprise:
- Two judges of the Constitutional Court;
- One judge of the High Court;
- One prosecutor of the General Prosecution Office;
- Two judges of the courts of appeal;
- Two prosecutors of the prosecution offices attached to the courts of appeal;
- One judge of administrative courts.
The Constitutional Court has proposed the only two judges left, Bashkim Dedja and Vitore Tusha. Dedja is currently still in appeal at the Special Appeals Chamber (KPA), after the Public Commissioner appeals his confirmation by the Independent Qualification Commmision (KPK). Tusha is at the same time the government’s candidate for chairman of the State Supreme Audit Institution (KLSh). If either Dedja is dismissed by the KPA, or Tusha elected to the KLSh, the KED cannot be formed and no Constitutional Court will be able to be created under the current legal provisions.
As High Court candidate, the High court has proposed Edmond Islamaj, whose appeal is also still pending at the KPA;High Court judge Ardian Dvorani, who passed vetting in spite discrepancies in his asset declarations; and High Court judge Medi Bici. No appeals court judges or administrative court judges were proposed.
The General Prosecution Office provided a long list of candidates, with only a few of them having passed the vetting. This means that the chances will be considerable that the KED of 2019 will contain members who still will have to pass vetting, which will further delay the installment of a functional Constitutional Court.
However, following the announcement on the website of the General Prosecution Office, only Temporary General Prosecutor Marku and Appeals Prosecutor Fatjona Memçaj actually fulfill the full requirements set by the law. All other candidates listed by the General Prosecution do not fulfill the criteria of having completed the School of Magistrates (art. 221(1)(d)). This means there are not enough prosecutors available that are qualified to take up a position in the KED.
It is unclear if and when the KLD will provide a list with KED candidates for the members from the administrative and appeals courts.
There is therefore a serious risk that there will not be enough qualifying candidates to take place in the KED for 2019.