From: Vincent W.J. van Gerven Oei
ONM: KLP Members Can Still Be Dismissed ONM representative Theo Jacobs

After the recent election to the High Prosecutorial Council (KLP) of Gentian Osmani and Antoneta Sevdari, whose appeal is still pending at the Special Appeals Chamber (KPA), Exit inquired at the International Monitoring Operation whether they could still be dismissed from the KLP, should the KPA overturn their confirmation in office by the Independent Qualification Commission (KPK).

This issue has become particularly pressing with the recent decision of the KPA to dismiss President of the Constitutional Court Bashkim Dedja from office, which has resulted in a second vacancy at the Justice Appointments Council (KED).

According to the ONM:

Should the mandate of one of the members of the High Prosecutorial Council be terminated for any reason, ordinary rules would apply. […] Both [KLP and KPA] are acting within the framework of their respective legal mandate. The KPA is not bound by KLP decisions. In this regard, a KPA decision on a member of the KLP does not differ from a decision on any other assessee.

The “ordinary rules” the ONM refers to is Constitution art. 149/c(2)(a), which allows for the dismissal of a KLP members for “committing serious professional or ethical misconduct.” Supposedly a dismissal from office by the KPA would fall in this category. However, a KLP member can only be dismissed “upon decision of the Constitutional Court.”

As the KPA is according to the Constitution art. 179/b(5) “attached to the Constitutional Court” and considered a “chamber” of the Constitutional Court, it would make sense if a KPA decision would be treated as a “decision of the Constitutional Court,” as the actual Constitutional Court is currently down to a single judge.

However, between now and the final verdict of the KPA in the pending (and possibly future) cases against KLP members, the KLP will start to exercise its functions, including appointing a new General Prosecutor, installing the Special Prosecution Office (SPAK) and the National Investigation Bureau (BKH).

Nevertheless, the ONM stated that the dismissal of a KLP member does not retroactively invalidate the KLP’s decisions: “A dismissal decision has no retroactive effect with regard to previous decisions.”

In other words, the damage could have already been done.