From: Vincent W.J. van Gerven Oei
High Judicial Council Will Limit Vetting of High Court Candidates High Judicial Council

On July 5, the High Judicial Council (KLGj) announced that it had approved the regulations for the selection of the 3 non-judge candidates of the High Court, which will start as soon as the decision has been published in the Official Gazette. However, the selection procedure for the 14 remaining magistrate candidates for the High Court remains frozen.

Moreover, once this selection process is started, it appears that the KLGj will constrain the vetting of the candidates, in violation of the Vetting Law and the Constitution.

On May 23, 2019, the High Judicial Council (KLGj) passed decision no. 75, “on the verification procedure for the conditions legal criteria for the recruitment of candidate judges, the development of the careers of judges, and the nomination of judges for the High Court.”

The decision regulates, among other things, the nomination procedure for judges of the High Court. Recently, Exit was the first media outlet to report on a EURALIUS legal opinion, drafted by Constitutional Court candidate Klodian Rado, that suggested using “temporarily” promoted judges to fill the High Court, so that a new Constitutional Court can be elected. President Ilir Meta recently strongly objected to this course of action, calling it “unconstitutional.”

However, even if the EURALIUS “fix” will not be implemented, KLGj’s decision no. 75 fully undermines the integrity of the vetting. The decision allows the KLGj to set a deadline to the Independent Qualification Commission (KPK) to vet any candidates within 3 months’ time. If the deadline of 3 months is passed, the KLGj will take over the assessment of candidate judges itself, based on the provisions of the so-called “Status Law.”

In other words, unless the KPK vets any High Court candidates within three months from the request of the KLGj, they will not be vetted at all. Moreover, the decision of the KLGj fails to make any mention of a “final verdict” or the Special Appeal Chamber, which is the highest vetting institution.

Part X, section B(2). Candidates who are subjected to the transitory reassessment process according to Law no. 84/2016 are in the reassessment procedure or for whom the procedure has not yet started, are not subject subject to the asset and background assessment according to the provisions of points 2 until 7 of article 32 of the Status Law. The decision of the Council about the (dis)qualification of those candidates is based on the decision given by the Independent Qualification Commission. In this case, the Council requests the Independent Qualification Commission a priority treatment of the reassessment procedure of these candidates.

If the Independent Qualification Commission does not respond to the request of the Council or doesn’t finish the reassessment procedures for these candidates within 3 months from the moment the request has been made, these candidates are subjected to the wealth and background assessment according to the provisions of points 2 until 7 of article 32 of the Status Law.

These regulations leave unclear whether a judge elected to the High Court will be forced to resign if they happen to be dismissed with a final verdict of the vetting institutions after they have been “vetted” by the High Judicial Council following the provisions in the Status Law. They will also potentially create situations in which judges are vetted twice: once by the vetting institutions, and at the same time by the KLGj, which would be a violation of the Constitution and Vetting Law. The KLGj can only implement the assessment procedures of the Status Law after all magistrates have been vetted according to the Constitution and the Vetting Law.

What will happen if a judge is eventually dismissed by the vetting institutions while confirmed by the KLGj? Which decision will have priority? And what would that say about the quality of KLGj “vetting”?

By approving these regulations, the KLGj has further muddied the waters of an already very unclear process, which is sure to cause further heartache in the future.