From: Vincent W.J. van Gerven Oei
Prosecutor Prela’s Confirmation Appealed by Public Commissioner

Today the Public Commissioner, one of the three vetting institutions, announced that he would appeal the confirmation of Serious Crimes Prosecution Office Director Donika Prela. Several media outlets, including Exit, had published strong criticisms of her confirmation and called upon the Public Commissioner to file an appeal.

On March 27, the Independent Qualification Commission (KPK) published its verdict in the vetting of Prela from February 5. This was in violation of the Vetting Law, which demands publication of the KPK’s verdict within 30 days. This was not the only delay. Exceptionally, the KPK had also delayed its verdict after several public denunciations had come in against Prela.

In its final verdict, the KPK accepted all of Prela’s justifications for the discrepancies in her and her husband’s asset declarations. The International Monitoring Mission (ONM) raised several issues with Prela’s asset declarations, asking “Please make me understand whether your husband was a victim or part of a tax evasion scheme.” Prela retorted: “I and my husband have been living in Albania and not in any of the EU countries,” implying that tax evasion was something to be thought of lightly. Yet the Constitution is very clear on this point. Constitutional Annex art. D(3) states “Income shall only be considered legitimate if it has been declared and taxes have been paid.” Prela seems to think the Constitution does not apply to her.

The KPK also dismissed all public complaints filed against her for corruption. It should be pointed out, that the KPK does not have the power of the prosecution. It cannot conduct a proper criminal investigation, cannot command the court police, cannot collect evidence. The fact that the KPK didn’t follow up on any of the public denunciations, therefore, does not in any way exculpate Prela.

The verdict was published on March 27. Art. 63(1) of the Vetting Law gave the Public Commissioner 15 days to appeal the decision, so the appeal filed today falls within the deadline. It is as yet unclear whether the appeal of the Public Commissioner is based on a recommendation of the ONM, as no such recommendation has been posted on the Public Commissioner’s website. There would have been every reason for the ONM to issue such a document.

In its recommendation of February 1, 2019 against the confirmation of Adnan Kosova, the ONM recommended appeal in part based on a contractual scheme that allowed Kosova to avoid paying taxes. The ONM stated: “This behavior seriously affects the public trust and confidence in the justice institutions that the re-evaluation process aims at re-establishing.” Indeed, the confirmation of Prela by the KPK seriously affects that trust and confidence. Considering the criticism of the ONM during the hearing of Prela, her unsatisfactory answers, as well as the ONM’s track record of not shying away from recommending appeals against “big fish” such as former Chairman of the Constitutional Court Bashkim Dedja and High Court President Xhezair Zaganjori, a recommendation of the ONM to the Public Commissioner is to be expected.

But even if, for reasons that would be difficult to surmise, the ONM did not give a recommendation, the Public Commissioner’s appeal stands strong. There is a precedent for this, for example in the case of the appeal against the confirmation of prosecutor Arben Dollapaj.

By issuing the appeal against Prela’s confirmation, the Public Commissioner has fulfilled its Constitutional duty. According to Constitutional Annex C(2), the Public Commissioner “shall represent the public interest.” Also the Regulations of the Public Commissioner, art. 3(1) state: “The Institution of the Public Commissioners represents and protects the public interest during the vetting process and is led by the principle of neutrality and independence.”

The uproar in the national media generated against Prela’s confirmation suggested clearly that it was in the public interest that the KPK’s verdict was reviewed by the Special Appeals Chamber. Even if Prela will in the end be confirmed by the KPA, an appeal is in this case of the utmost importance precisely to foster trust in the vetting institutions, which, as a recent study has shown, is low. We should all appeal to the Public Commissioner to ensure this indeed happens.

– Vincent W.J. van Gerven Oei