Yesterday, the High Prosecutorial Council (KLP) announced that they will start the procedure to elect a new General Prosecutor. It is widely expected that Arta Marku, the current Temporary General Prosecutor, will be one of the applicants.
After the end of Adriatik Llalla’s term as General Prosecutor in December 2017, Arta Marku was appointed “Temporary” General Prosecutor by a simple majority in Parliament after international justice assistance missions EURALIUS and OPDAT released a unique “legal opinion,” arguing (in support of the government) that because Marku’s appointment was temporary, she should be considered similar to a Deputy General Prosecutor, and therefore didn’t require confirmation by a qualified majority of 3/5 of the deputies. Because of this questionable legal trick, which could not be tested by the Constitutional Court which back then had already lost its quorum, Marku also did not have to pass the vetting before being appointed.
As I have argued extensively before, Marku’s appointment as “Temporary” General Prosecutor, a function that does not exist in the Albanian legal code, allowed her, the government, and internationals to have their cake and eat it too: to have both someone acting as if they were General Prosecutor, while legally not being one.
This has led to numerous unconstitutional actions from Marku’s side. Under the new justice reform legislation which was already in force, the General Prosecutor can no longer transfer or dismiss other prosecutors, which is a right that belongs to the KLP. However, as the KLP did not exist, Marku abrogated those rights, even though we had been assured that as “Temporary” General Prosecutor she would only have the powers of a Deputy General Prosecutor, and therefore not be able to affect the organizational structure of the Prosecution Office.
No matter how you looked at the situation, it was illegal in one way or the other. Either Marku was “like” a regular General Prosecutor, in which case her election was unconstitutional. Or she was “like” a Deputy General Prosecutor, in which case her action were illegal. These questions also came up during her vetting, when ONM representative Theo Jacobs inquired about personnel decisions she had made. However, Marku refused to answer his questions.
The Constitution is very clear that a General Prosecutor can only be appointed for a single mandate. This leaves the KLP, if present with a candidacy of Arta Marku with two options: either allowing her to enter as a candidate or not. If the KLP allows Marku’s candidacy, this means it does not consider her currently to be a General Prosecutor, which implies that many of her actions since December 2017 have been illegal. If the KLP does not allow Marku’s candidacy, this means she was in fact a General Prosecutor, which means her election was unconstitutional.
Even though the Constitutional Court was never able to express itself about this legal conundrum, the decision of the KLP, should Marku choose to apply for the post, may provide the same clarity. We will know whether she was nominated in violation of the Constitution, or violated the law while in office. In either case, she ought not to be admitted as candidate to become the next, “real” General Prosecutor.
– Vincent W.J. van Gerven Oei