Last month, the Justice Appointments Council (KED) started evaluating and ranking the candidates for the Constitutional Court elected by Parliament and the President.
Apart from the fact that the election of only 6 of the 9 Constitutional judges – with no judges representing the judiciary branch – will de facto politicize the Constitutional Court and undermine its legitimacy in the current polarized political climate, a further threat is posed by the way in which the KED is currently constituted.
According to Constitution, art. 149/d, the KED consists of 9 members. Yet currently the KED only comprises 7 members. One seat never got filled due to a lack of qualifying candidates, while Constitutional Court judge Bashkim Dedja was dismissed from office by the Special Appeals Chamber. This in itself has created an unbalance in the KED and a suboptimal functioning: more power will end up in the hands of less people – a small group of people which will evaluate candidates for 6 out of 9 seats in the Constitutional Court.
In any other country, those in charge of such an important decision should be of the highest caliber and professionalism, yet the Albanian legal framework of the justice reform, drafted in part by EU justice assistance mission EURALIUS – which continues to operate in complete intransparancy and without any accountability – does little to assure that.
Law 115/2016 “On the Governance Institutions of the Justice System” was passed with votes of only the Socialist majority, and was subsequently partially rejected by the Constitutional Court. As far as I could find, no amendments has been passed to fix the parts rejected by the Constitutional Court, thus leaving severe deficiencies in the legislation.
According to art. 229(3) of this law, the KED has a quorum of 5 and decides by a majority vote. This means that in the current KED 4 members out of the supposed 9 members have the power to evaluate and rank the candidates for the Constitutional Court. Thus, an actual minority of KED members will be able to decide on the most important positions in the judiciary system.
On top of this questionable situation, the current KED has styled itself as “provisional,” because it was – even though the third KED elected since the implementation of the justice reform – still elected under the transitory provisions of Law 115/2016. As a result, General Prosecutor Arta Marku was able to make herself a candidate for the KED, making sure she was elected. This open conflict of interest appears to have bothered no one.
According to art. 284(9), Provisional KED members are vetted with priority. However, so far the Independent Qualification Commission (KPK) has failed to give any priority to the vetting of KED whose dossiers it didn’t already open a year ago, in spite of the timely and repeated warnings of the Albanian Helsinki Committee.
Of the current KED, only Ardian Dvorani, Vitore Tusha, Arta Marku, Fatjona Memçaj, and Eriol Roshi have been confirmed by the vetting bodies with a final verdict. Fatri Islamaj and Margarita Buhali have not been vetted by the KPK and no session has been scheduled in either case.
Not only is this a violation of Law 115/2016 that appears to have passed without any consequence, this also means that in an already diminished “provisional” KED, 2 of the 7 members have not been properly cleared by the vetting. The case of Bashkim Dedja, who was member of the current KED until he was dismissed, shows that the risk is real.
In spite of this, the government and the European Commission continue to pretend that the justice reform is an astonishing and lasting success. But when you look at the details in the legislation, and look at its actual implementation, as we have done continuously on this website, one can only draw the conclusion that this reform suffers from deficiencies so serious, that they will have far-reaching negative effects on the credibility of the judiciary and the rule of law for years to come.