We are dealing with difficult times. The rule of law and the protection of fundamental rights are under great pressure in a strongly polarized Europe. The implosion of traditional political parties provided fertile breeding ground for populists.
In 2016, Albania adopted a comprehensive and highly controversial reform of the judiciary. The fulcrum of the reform is the so-called “vetting”, an exceptional one-time assessment of all sitting judges and prosecutors. The process ends with either confirmation in office or immediate termination.
The reform was sold to the Albanian people and the EU partners as the only way to restore the trust of citizens in judicial institutions and to weed out corruption from the judiciary. High ranking politicians of the ruling party, including the Prime Minister, have engaged in a virulent campaign against the judiciary before the vetting was even launched (see the PM’s official speech in 2014 entitled ‘Let’s put an end to the ruthless dictatorship of corruption in the judicial’).
However, no measure was envisaged by the judicial reform to address the high politicization of the judiciary, nor to counter the political pressure generated by the vetting process itself.
The first vetting cases have exposed a number of serious shortcomings and are currently under examination by the European Court of Human Rights (“ECtHR”) (Gashi and Gina v. Albania, appl. no. 29943/18 and Nikëhasani v. Albania, appl. no. 58997/18).
The vetting process has led to an unprecedented constitutional crisis in Albania.
As a result of the vetting, ending of mandates and retirements, both the Constitutional Court and the High Court are now incomplete and in a state of institutional paralysis. The Constitutional Court has been literally decimated: out of 9 members, only one is still standing. The High Court was likewise beheaded, with only two judges left.
Both courts now lack the necessary quorum to deal with a colossal (and constantly increasing) backlog of criminal, civil and administrative cases. Significantly, the Albanian President of the Republic recently expressed his dissatisfaction with the implementation of the justice reform.
Long story short, amid the deep political crisis, Albania has no Constitutional Court and High Court and also finds itself with a “Temporary” General Prosecutor unconstitutionally elected with the votes of the sole ruling party.
The judges who are still in office will be subject to the vetting. Their activity is under constant scrutiny by the public, the executive and the vetting bodies, a circumstance which may cause pressure and, thus, prevent independent thinking and adjudicating.
This is certainly not the place to discuss the widespread ramifications of the Albanian constitutional crisis (for those who want to know more, read here, here and here). However, we must ask ourselves whether the current collapse of the judicial system should be kept into account when dealing with extradition requests from Albania.
The matter calls indeed for careful consideration.
Albania ratified the 1957 Extradition Convention. Its provisions (supplemented by a number of bilateral agreements) serve as a legal basis for extraditions between Albania and the majority of EU member States, including Italy.
Having specific regard to the Italian legal system, Article 705, par. 2, lett. a), CCP bars extradition whenever the requested person has been or will be subject to a proceeding that does not comply with fundamental rights.
The Italian Supreme Court has constantly held that, even though the requesting State does not need to ensure the same fair trial safeguards envisaged by the Italian legal system, it is nonetheless necessary that it complies with the basic requirements laid down by Article 6 ECHR (see, for all, Court of Cassation, Division VI, judgment no. 4528 of 27 January 2012).
Likewise, the ECtHR has stated that an issue might arise under Article 6 ECHR where the individual to be extradited has suffered, or risks suffering, a “flagrant denial of justice” in the requesting State (ECtHR, Soering v. the United Kingdom, 7 July 1989, § 113), which may include also detentions without any access to an independent and impartial tribunal to have the legality the detention reviewed (Othman (Abu Qatada) v. the United Kingdom, 17 January 2012, §§ 258-259);
Having regard to the current situation in Albania, it could reasonably be argued that the wide and unchecked powers of the judicial system, the non-functioning of the High Court and the Constitutional Court and the unconstitutionally elected Temporary General Prosecutor are at odds with the principles granted in a democratic State based on the rule of law and that there is a real risk that the requested person would suffer a breach of his fundamental rights if surrendered to Albania.
The dampening situation of the judiciary in Albania is currently under review by ECtHR in relation to Article 6 ECHR (on account of the lack of access to a court — Bara v. Albania, appl. no. 43391/18 and Kroi and Nocka v. Albania, appl. no. 84056/17) and to Article 5 ECHR (on account of the impossibility to obtain a judicial review of the lawfulness of pre-trial detention orders — Keta v. Albania, appl. no. 9227/19).
In 2011, the Italian Supreme Court held that was “no evidence that the requested person will be subject, in [Albania], to a proceeding that does not comply with fundamental rights. On the contrary, the ratification by Albania, since 1996, of the European Convention and, since 1998, of the 1957 Extradition Convention is univocal evidence of adherence by the procedural system of that country to the principles that ground the democratic systems of the other member States of the European Union” (Court of Cassation, Division VI, judgment no. 40671 of 29 September 2011).
However, we now know that mutual trust underpinning cooperation in criminal matters is not blind.
This principle has been called into question even in the context of the European Union. It is common knowledge that, on 25 July 2018, in case C 216/18 PPU concerning Poland, the European Court of Justice (“CJEU”) ruled that a requested State called upon to execute an EAW may refuse surrender if it considers that there is a real risk that the individual concerned would suffer a breach of his right to an independent tribunal and, therefore, of the essence of his fair trial rights, owing to deficiencies affecting the independence of the judiciary in the requesting country.
We believe that the time has now come for courts across Europe dealing with extradition requests from Albania to assess whether the current paralysis of its judiciary has reached a level of severity so as to call in question the country’s capability to ensure protection of fundamental rights.
It’s going to be a long and cold winter for the rule of law.
Giulia Borgna is an Italian lawyer and a Partner at Saccucci & Partners, where she manages the Albanian Desk. Her practice and research focus on public international law, human rights and extradition. She is a member of LEAP (Fair Trials) and DELF. She holds a PhD from the University of Palermo and lectures on International Criminal Law at LUMSA University. She lives in Rome.
This article was first published at Extradando and republished with permission.