From: Vincent W.J. van Gerven Oei
KED Will Skip Vetting Constitutional Court Candidates

On Tuesday, Socialist MP Taulant Balla declared that the Constitutional Court would be functional by the end of July. He expressed this hope in the context of a draft resolution pushed by the Socialist Party to ignore President Ilir Meta’s decree which effectively will cancel the elections.

The deadline of the end of July mentioned by Balla implies that the candidates from the judiciary for the Constitutional Court should have been completely vetted by then, having received a final decision on their reassessment. However, several candidates such as Anila Kristani, Shpresa Beçaj, Regleta Panajoti, and Ilir Mustafaj are currently still awaiting vetting. Some of these dossiers were only opened this year. It thus seems unlikely that these candidates will have passed the vetting to meet Balla’s deadline. Furthermore, the case of Rovena Gashi is currently still pending at the Special Appeals Chamber (KPA), meaning she does not yet have a final decision on her reassessment.

Perhaps we should not place too much value on Balla’s statements, as he has been wrong before. But it appears that the Justice Appointments Council (KED) is cutting corners to speed up the procedures and help the majority achieve its aims. In KED Decision no. 4 from March 11, 2019, the KED has decided not to wait until candidates have received a definitive decision on their vetting.

Art. 111. The magistrate candidates and other subjects that are subjected to the transitory reassessment procedure according law 86/2016 [the Vetting Law], which have not yet been confirmed in office with a decision of the Independent Qualification Commission [KPK], even if an appeal has been filed, are not allowed to be a candidate.

Art. 112. The verification procedures for the vacant position cannot be finished until the KPK has made a decision with relation to the magistrate candidates and other subjects that are subjected to the transitory reassessment procedure according law 86/2016 [the Vetting Law].

In other words: a KPK decision is taken de facto as a final decision, irrespective of any appeals filed. This is tantamount to ignoring the very juridical basis of the vetting law, which depends on both the KPK and KPA to make sure the reassessment is done properly. The case of former Constitutional judge  and former KED member Bashkim Dedja, who was dismissed in appeal and had to be removed from the KED, clearly illustrates this case.

This KED regulation is in contradiction with the Vetting Law, which states clearly in art. 5 that “The re-evaluation process of all assessees shall be carried out by the Commission, the Appeal Chamber and the Public Commissioners in collaboration with international observers.” In the same law, art. 4 states: “The Commission and the Appeal Chamber are the institutions which decide on the final evaluation of the assessee.” In other words, by cutting out the Special Appeals Chamber from the vetting process, the KED cuts the reassessment process short.

Furthermore, the Constitution Annex art. 179/b(2) specifies that reassessment should be based on “the principles of the fair trial and conducted by respecting the fundamental rights of the assessee.” One of such fundamental rights is the right to appeal. By cutting out any candidate who might appeal the KPK decision, while accepting candidates who passed the KPK, but against whom an appeal has been filed at the KPA, these fundamental rights to a fair process are violated.

Moreover, the KED regulation contradicts similar regulations of the High Prosecutorial Council (KLP) and High Judicial Council (KLGj). For example, the KLP has adopted the rule that candidates for the General Prosecutor and SPAK prosecution need to have a final decision from the vetting organs. Also the KLGj demands that judges for the SPAK courts have a final decision.

So how is it that the General Prosecutor and SPAK magistrates need to be fully vetted by the KPK and KPA, while the judges at the highest court of the country, the Constitutional Court, have a lower requirement, while at the same time those who may have been unjustly dismissed by the KPK have no chance to ascend to that court? Two answers: haste and a desire to pack the court with candidates preferred by the Rama government.

It is not difficult to see in this “time-saving” move the hand of EURALIUS. Internal documents of EURALIUS had already shown that EURALIUS proposed to skip the vetting for the KED, with disastrous consequences. EURALIUS also proposed to “temporarily” install General Prosecutor Arta Marku, even though she hadn’t passed the vetting. And more recently, a legal opinion of EURALIUS doesn’t seem to worry about “temporarily” promoting unvetted magistrates to the High Court (more on that tomorrow).

EURALIUS has been involved in all the regulations of the KLP, KLGj, and KED, yet somehow allowed contradictions to exist between their respective interpretations of what it means to be vetted, whereas the Constitution and the Vetting Law leave no doubt as to what passing the vetting process means: a final decision, nothing else. This creates serious concerns about the professional capabilities and ethics of the EU justice assistance mission.

So when MP Balla promises a Constitutional Court in July, know this: This will be a court, whose members may not have been completely vetted. This will be a court, which is unnaturally skewed toward candidates approved by the Parliament and President, in which the three members appointed by the judiciary will be missing. This will be a court that is expected to do the bidding of the Socialist majority. This is a court that will fire the President when instructed to do so.