From: Vincent W.J. van Gerven Oei
What Separation of Powers? Appeals Court judge Skënder Damini

What started as a coordinated propaganda effort of the government and EU bureaucrats to denounce a recent judgment of the Serious Crimes Appeals Court to reduce the sentence of Dritan Dajti from life to 25 years, is rapidly turning into the first disciplinary case in which we can see the new “independent” judiciary in action.

According to the Governance Institutions law, it is clear that only High Judicial Council (KLGj)  has the right to impose disciplinary measures. And indeed, in his fated tweet, EU Ambassador Soreca called upon the KLGj to start an investigation into the verdict and impose such disciplinary measures on the judges involved.

However, it now seems that the government intends to outdo the KLGj in its “zeal” for justice, and has sent in special police forces to search the houses of the judges under the banner of the “Force of the Law” operation, while it unsure still whether even an investigation had been opened.

We should bear in mind here that the “Force of the Law” operation has been “operating” since November 2017, as brain child of former Minister of Interior Fatmir Xhafaj. The “Force of the Law” was itself an attempt to bring a police force with powers and an organization akin to the National Bureau of Investigation (BKH), which is expected to be installed by the Special Anti-Corruption Prosecution Office, directly under the control of the Ministry of Interior, and thus the government.

Now, after a decision of the Serious Crimes Court of First Instance, this “Special Task Force” has searched the home of 3 judges without the KLGj even having started disciplinary procedures.

In fact, it is Minister of Justice Etilda Gjonaj herself who decided that disciplinary violations had taken place:

“After a preliminary verification of this issue, as Minister of Justice I have deemed that there is place to start a disciplinary investigation for serious professional violations that discredit the position and figure of the judge during the exercise of their office, by judges Skënder Damini and Petrit Aliu from the Appeals Court in Vlora and Aleks Nikolli of the Appeals Court in Shkodra.

For this reason, I have directed an official request to the High Judicial Council and the Inspectorate [which does not yet exist] to start the disciplinary investigation and take the decision to dismiss the abovementioned judges from office, as well as a thorough administrative investigation of this dossier.”

But the entire scene in which the government and not the judicial governance institutions instigate a search of private homes, simply because the Minister of Justice thought disciplinary violations had taken place, seems to send out completely the wrong signal.

This is, quite literally, the government taking justice into its own hands – independent of the fact that indeed weapons and amounts of cash appear to have been found.

Because where was Minister Gjonaj when the Court decided to drop Tahiri’s house arrest? Or when the Court decided to release Mark Frroku from jail? Or when Lulzim Berisha was set free.

In all these cases, it has been suspected that the judges were corrupted. And in all these cases she remained silent. But now, with the support from the EU, in this one particular case she decided to act, basically putting the KLGj in front of a fait accompli – because the KLGj can do nothing else but fire these judges. If they do, it will seem they followed the orders of the Minister. If they don’t, they may show their independence, but also the failure of the justice reform to deliver a “clean” system.

Whatever happens, it will show the failure of both the government and the EU to recognize that an independent judiciary does not only depends on laws, it also depends on actions.

And today’s actions have once again showed that an independent judiciary is as far away as ever.