The High Prosecutorial Council (KLP) is currently weighing its options for the next General Prosecutor, reviewing the candidacies of four prosecutors, including current “Temporary” General Prosecutor Arta Marku. If Marku makes it to the final list of four recommended candidates that the KLP will send to Parliament, there is a considerable chance that the Rama government, which had pushed through Marku’s nomination with the flimsiest of justifications, will be able to gather the necessary votes to form a qualified majority to vote her in.
In the past, I already provided an argument why Marku cannot possibly qualify for the position of General Prosecutor: if she indeed currently holds the position of General Prosecutor, she cannot be elected to a second term; if her current post as Temporary General Prosecutor is comparable to that of a Deputy General Prosecutor, she violated the law by intervening in the structure of the Prosecution Office, and should therefore be disqualified.
Nevertheless, it appears that the government and Marku have now embarked on a propaganda offensive for her candidacy, which of course included TV interview appearances. This week Marku appeared on Top Channel’s show Open, with Eni Vasili.
In this interview Arta Marku publicly acknowledged – to my knowledge for the first time – that the law allowed her to move prosecutors around:
I think that I have put qualified, honorable people at the head of the prosecutors. It is a very important quality to be honorable. Ms Prela is not the only prosecutor I have appointed. I have to clarify that the competences to move prosecutors has been a transitory provision until the creation of the KLP.
That is incorrect. Constitution, art. 149/a(1)(a), clearly states that “appointment” and “transfer” of prosecutors is the task of the High Prosecutorial Council (KLP) and not the General Prosecutor. Law 97/2016 On the organization and functioning of the prosecution in the Republic of Albania, art. 109(3) states that until the KLP is installed the competences of the General Prosecutor are determined by Law no. 96/2016 On the Status of Judges and Prosecutors in the Republic of Albania, art. 160(2):
2. Until the establishment of the High Prosecutorial Council, the General Prosecutor shall continue exercising the following competences according to the rules foreseen in this Law:
a) Appoint the candidate magistrates graduated in 2016 in accordance with Part III Chapter II of this law at least two months after the entry into force of this law;
b) Take decisions to assign to positions the candidate magistrates graduated in 2016 in accordance with Part III, Chapter III of this law within three months from the entry into force of this law;
c) Suspend prosecutors according to the procedure and criteria foreseen in the law;
ç) Supervise the training of prosecutors according to this law and the law “On governance institutions of the justice system”;
d) Conduct the performance evaluation as foreseen in the transitory provisions of this law, including the assistance to the transitional re-evaluation of prosecutors based on the law “On transitional re-evaluation of judges and prosecutors in the Republic of Albania”;
dh) Certify the end of appointment in case of resignation and reaching the retirement age.
“Appointing” or “transferring” prosecutors, as Marku claims she has done, is not one of the competences assigned to the General Prosecutor while the KLP is being formed. She thus violated the law and ought to be prosecuted for abuse of office.
However, what is more important, is that Marku has now recognized publicly that she in fact has been a General Prosecutor from the moment she was elected as “Temporary” General Prosecutor.
According to Constitution art. 148/a, “The Prosecutor General is appointed by three-fifths of the members of Assembly among three candidates proposed by the High Prosecutorial Council, for a seven- year mandate, without the right to re-appointment.”
Even though Marku was never appointed with the necessary qualified majority (at the advice of EURALIUS and OPDAT), and even though her mandate will probably be cut short, Marku exerted all the functions – and even more – of a General Prosecutor. This means, quite simply, that her candidacy for the position of General Prosecutor is illegitimate and should be rejected by the KLP. Any decision otherwise will show the justice reform has accomplished precisely nothing.