By Vincent W.J. van Gerven Oei
With SPAK Looming, Parliament Embraces Immunity

Now that the application procedure for the Special Prosecution Office (SPAK) has been opened and the reality of an – at least nominally – independent prosecution office for corruption and organized crime seems to be dawning on the Albanian political class, Socialist Members of Parliament have started to protect themselves from “destabilizing” investigations.

Yesterday, the Legal Affairs Committee returned to a proposal first floated early last year after Parliament denied a direct request of the General Prosecution Office to arrest former Minister of Interior Saimir Tahiri. Parliament’s upholding of Tahiri’s parliamentary immunity followed a quasi-court hearing in which prosecutors were interrogated by MPs of the Council of Mandates about their evidence in the Tahiri case.

The problem was obviously that much of the evidence was protected by law, and could not simply be presented in front of MPs and a dozen of TV cameras. This basically put the Prosecution Office is in a disadvantageous – and Tahiri in a favorable – position.

The procedure followed with the Tahiri hearing in 2017, in which Parliament basically as a de-facto “court” before a case is actually brought to a real court of law, has now been approved as part of the Parliamentary Regulations by the Legal Affairs Commission.

If the amendment is also approved in the plenary session of Parliament, the Parliamentary Regulations will prohibit any arrest of a MP or minister, no matter how serious their crime.

In such cases, the SPAK will have to present their evidence in a quasi-court hearing at the Council of Mandates, which will interrogate the SPAK on their evidence. The Council of Mandates will then decide whether the evidence of SPAK is sufficient for the politician’s arrest.

This reenforced notion of “parliamentary privilege” does not only turn Parliament – at least for the ruling majority – into a safe house shielded from any type of arrest, increasing its attraction for criminals, which in the past have used Parliament as refuge against criminal proceedings. It also introduces a fundamental inequality before the law between MPs and ordinary citizens purely on the basis of a perceived threat of “destabilization.” Furthermore, it appropriates legal rights from the judiciary power, which is the only branch of government which is allowed to pass judgments.

Moreover, the prosecutors of SPAK, which are the only ones who are allowed to investigate MPs under the new judiciary framework, are under constant monitoring of their communication and bank accounts. Which means that they would be the least likely to “destabilize” Parliament, as such a plot would be immediately noticed. The request for reenforced immunity of MPs therefore responds to a threat that has already been mitigated by the justice reform package! Less not more “parliamentary privilege” should have been MPs’ appropriate response, if only to express its trust in the reform they themselves approved.

The proposed amendment to the Parliamentary Regulations will moreover severely limit the function of SPAK and the National Investigation Bureau (BKH), because it basically takes away the element of surprise. The lengthy procedures will allow suspected politicians ample time to get rid of evidence, intimidate witnesses, and cover their tracks.

For example, it is more than reasonable to think that Tahiri got rid of a lot evidence in the days between the General Prosecution’s request to arrest him and search his house, and the moment that Parliament actually agreed to the search (but not the arrest).

In other words, the actions of the Socialist majority go directly against the entire spirit of the justice reform, which is to clean the judiciary so that it then can clean the political system – an argument that is even used by the government itself against political vetting!

It is not clear yet when this amendment to the Parliamentary Regulations will be on the Parliament’s plenary agenda. But if the EU Delegation and US Embassy are serious about the effectivity of SPAK and BKH and really want to go “fishing,” they would do well to come out strongly against it.