From: Alba Mborja
Possibly No KED in 2019

The Justice Nominations Council (KED) might not form even for the year 2019 due to the lack of enough prosecutors and judges eligible for KED membership. No other institution for the administration of the judicial system can form prior to it, as KED is the institution assessing and ranking member candidates for these institutions.

The KED members are selected by lot, which is open to all eligible prosecutors and judges, according to quotas for all levels of the prosecution and judicial systems.

On November 19, 2018, President Meta disclosed the list of prosecutors and judges eligible to participate in the lot for KED members. The list of candidates from the respective institutions was compiled and submitted by the Constitutional Court, the High Court and the General Prosecution. The High Council of Justice (KLD) should have compiled and submitted the list of eligible judges in the Appeals and Administrative Courts, but it has violated the November 15 deadline set by the Constitution.

The list of the Constitutional Court is comprised of the only two members confirmed in office after the vetting – Vitore Tusha and Bashkim Dedja. The latter is included in the list, despite the International Monitoring Operation (ONM) having demanded his dismissal and the case awaiting to be reviewed by the Special Appeals Chamber (KPA).

The High Court submitted three names: Edmond Islamaj, Ardian Dvorani, and Medi Bici. All three judges have passed the vetting process but the Public Commissioner has appealed the ruling on judge Edmond Islamaj. It’s not clear why the fourth remaining member of the High Court, judge Xhezair Zaganjori, was not included in the list, as he is eligible.

The General Prosecution submitted only two candidates from the prosecutorial system – Arta Marku, the interim General Prosecutor, and Fatjona Memçaj, Prosecutor at the Appeal Prosecution of Tirana. The General Prosecution clarified that 36 other prosecutors were not eligible as they didn’t graduate from the School of Magistrates. However, it did not clarify why hundreds of other persecutors were not considered to be included in the list, given that the prosecutorial system has 380 prosecutors on duty. It’s worth noting that Arta Marku has also applied to be a member of the High Prosecutorial Council (KLP), which might comprise a conflict of interest given that the KED assesses candidates to the KLP.

The submission of only two names from the prosecutorial system makes the forming of the KED impossible, as it requires two members from the Prosecution at Appeals Courts, while currently there is only one candidate, Fatjona Meçaj. Moreover, Arta Marku’s presence in the KED raises serious doubts on the compatibility of her current office with the duty at KED.

It appears that under these conditions the KED will not be able to form in 2019, following the previous such failures during 2017 and 2018.

Below offers a thorough explanation of the issues and the situation created.

What are the constitutional and legal provisions for the forming of the KED?

The Constitution stipulates the KED to comprise 9 members selected by lot from the ranks of eligible judges and prosecutors, who serve for one year and can’t be re-elected for a second consecutive term. The list of eligible candidates from all levels of the judicial system for the next year is submitted to the President within November 15 each year. The President holds the selection by lot between December 1–5 each year.

The nine members of the KED must 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.

Thus, the remaining two judges of the Constitutional Court, Vitora Tusha and Bashkim Dedja, are both needed for the KED. Meanwhile, Vitore Tusha’s term in the Constitutional Court has ended in April 2017 and her successor has not been elected yet. Moreover, the President has proposed Tusha as the Head of the State Supreme Audit Institution (KLSh).

On the other hand, Bashkim Dedja was confirmed on duty by the Vetting Commission but the ONM appealed his confirmation to the Special Appeals Chamber (KPA), which is expected to review the case in the following weeks.

If either Ms. Tusha is elected to the KLSh or Dedja is dismissed by the KPA, there will be practically no judges from the Constitutional Court who could be members of the KED for the year 2019.

One out of three candidates from the Higher Court will be selected as KED member: Ardian Dvorani, who passed vetting in spite discrepancies in his asset declarations (read more); Edmond Islamaj, whose appeal is still pending at the KPA; and Medi Bici, who was confirmed in duty through an irrevocable judgment. It’s worth noting that is also a member candidate to the High Judicial Council (KLGJ) which comprises a conflict of interest with the KED membership.

Out of one candidate from the General Prosecution one KED member will be elected: Arta Marku, the Temporary General Prosecutor and candidate to the KLP.

While two KED members coming from prosecution offices of the appeal courts are necessary, there is currently only one candidate: Fatjona Memçaj, Prosecutor at the Appeal Prosecution of Tirana, who has passed vetting and has been a KED member in 2017. The other seat assigned for appeal prosecutors will remain vacant, thus making the forming of the KED impossible.

While two judges from the appeal courts are necessary, there is no single candidate yet, despite the deadline set by the constitution having passed. It is unknown why the KLD – headed by President Meta – has not compiled and submitted the said list. However, under these conditions two seats in the KED risk to remain vacant.

One member from the administrative courts is necessary, but in violation of the constitutional deadline there is no candidate at all. Thus, this KED seat is also at risk of reaming vacant.

In conclusion, based on the lists of eligible candidates from the Prosecution, Constitutional and High Court, the KED cannot form because at least 4 of its seats cannot be filled.

It is worth noting that chances for the forming of the KED for 2019 might be hindered by the fact that several candidates for the other KED seats either risk being dismissed by the KPA, or they are also candidates to other positions in the new judicial institutions,