From: Vincent W.J. van Gerven Oei
Vetting Statistics Reveal Constitutional And Legal Violations Independent Qualification Commission (KPK)

Recently, together with what appears to have been a small website update, the vetting commission (KPK) has published a Statistical Report covering the rather arbitrary time period February 8, 2018 until April 30, 2019. It is unclear from the report why these dates were chosen, but a cycle of 14 months and 12 days doesn’t seem the most practical for the release of statistical data. Will the next report cover the period of May 1, 2019 to July 13, 2020?

The data presented in the report present a bleak picture of the status of the vetting, and provides evidence “from the horse’s mouth” for behavior that appears both unconstitutional and in violation of the Vetting Law.

Characteristically, the report gives a lot of numbers but very little information as to how or what. Even the graphic representation seems to have been an obstacle too difficult to overcome.

According to the report, the KPK passed 141 verdict in the period February 8, 2018–April 30, 2019, including 56 confirmations and 52 dismissals. As may be clear from the graph below, the yellow bar with dismissals hovers around 45, while it represents 52 verdicts, the green bar with confirmation hovers around 52, but should represent 56 verdicts. Also, then 10 interrupted cases do not reach up to the level 10, and the 15 cases ended (because of retirement) look as if they are only 3. The sloppiness with which this graph has been prepared doesn’t bode very well for the quality of the rest of the report. And indeed, it raises giant question marks.

Below is another graphic, splitting out the decisions of the KPK based on the number of criteria that were taken into account during the vetting process of 109 cases. Note first of all, that according to the first graphic, the KPK issued 56+52=108 verdicts based on the evaluation of a dossier. So it remains a mystery where the 1 extra case belongs to.

This graph shows the number of KPK decision based on three criteria (83), two criteria (10), and one criterion (16).

Constitutional Annex art. Ç(1) clearly states that “the re-evaluation will include an Asset Assessment, a Background Assessment and a Proficiency Assessment under Article D, DH, and E of this Annex and the law.” These 26 verdicts have also been passed in violation of the Vetting Law, art. 4(1), which states: “The re-evaluation process shall be carried out based on three criteria: (a) Asset assessment, (b) Background assessment, and (c) Proficiency assessment.” Anything less is an incomplete assessment and therefore a verdict in violation of the Constitution and the Vetting Law.

It is, however, unclear on which criteria the KPK based itself in each case. With a bit of logic this can be deduced from two other graphs.

The High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (ILDKPKI) is involved in the asset assessment of the assessee and the Classified Information Security Directorate (DSIK) of the Ministry of Interior in the background assessment. The proficiency assessment is carried out by the KPK itself.

The ILDKPKI has furnished the KPK with 108 reports, which matches the number of dismissals and confirmations, which is also 108 (minus 1 “ghost” case).

As is clear from the graph, the KPK has in 14 cases decided to be more strict than the ILDKPKI. This fits with the KPK’s tendency to decide cases purely based on unaccounted-for assets of arbitrary size.

The DSIK has provided the KPK only with 92 reports. This shows that the DSIK, by not providing these reports, violated Vetting Lw art. 35(2) “The Classified Information Security Directorate shall initiate immediately the procedure of background assessment.” The graph also shows that in 6 cases the DSIK concluded that the assessee had not passed the background check, for example because of contacts with criminal figures, the KPK overturned those assessments.

If the KPK passed 108 verdicts based on some form of assessment leading to confirmation or dismissal (let’s ignore the 1 extra “ghost” case), and the ILDKPKI provided 108 reports, it seems reasonable to assume all verdicts were based on at least an asset assessment. The DSIK provided 92 reports, which minus the 82 cases based on three criteria, leaves us with 10: the number of cases based on two criteria. This leaves us with 16 cases based on asset assessment alone. This also means that 26 magistrates were never assessed based on their proficiency, and thus in violation of both the Constitution and the Vetting Law.

Recent evidence has clearly shown that also in the case of the dismissal of Constitutional Judge Fatmir Hoxha both the Constitution and the Vetting Law were violated by the KPK, which subsequently refused to undertake a disciplinary investigation of its own staff.

The statistical report features no interpretation or explanation of the data, nor any argument why the KPK would release this report at this point in time, after being operational for 14 months and 12 days. What it does show is that the KPK itself may turn out to be the greatest threat to the credibility of the justice reform.