From: Vincent W.J. van Gerven Oei
KED Again Rejects Zhaklina Peto’s Constitutional Court Candidacy

The Justice Nominations Council (KED) has for the second time rejected the candidacy of Zhaklina Peto for two vacancies at the Constitutional Court. In a press statement released yesterday, the KED announced that Peto was rejected for two vacancies announced by the President.

On August 2, the KED had rejected Peto’s candidacy on the basis of issues with her asset declaration. Peto subsequently filed an appeal against the decision at the Administrative Appeals Court, which decided on August 22 that she should be reinstated as candidate by the KED.

Peto was the only candidate of a total of seven whose request to reinstate their candidacy was granted by the Administrative Appeals Court. None of the three judges – Alkelina Gazidedja, Amarildo Laçi, and Bari Shyti – have been vetted.

Considering Peto’s proximity to the Socialist Party, the verdict of the Court was therefore likely an attempt by the Socialist Party to politically interfere with the nominations of the new Constitutional Court, which is expected to pass verdict on a number of politically explosive issues, including the June 30 elections and the potential dismissal of the President.

In her lawsuit, Peto claimed that the KED’s decision to reject her candidacy was “an absolutely invalid administrative act,” in part because she was allegedly not informed of the date and time of the KED session on which her candidacy was reviewed, and because the KED reached a conclusion about her assets that she thought was in contradiction with an expert opinion.

The legal designation “absolutely invalid act” has recently been trending, mainly in government circles, as a way of bypassing the Constitutional Court (which is dysfunctional). The Socialist Party, Parliament, and Central Election Commission used it to ignore President Meta’s cancellation of the June 30 local elections, while a similar legal argument was made by the Court of Durrës to ignore the election result. The electoral conundrum, with the “absolutely invalid” judgment at its core, is currently under review with the Venice Commission of the Council of Europe.

In its counterargument, the KED claimed that not only Peto had been notified about her session, but also that according to Law 115/2016 art. 238, a KED decision can be appealed “only for gross procedural misconduct.” The KED argued that:

To claim a violation or different way of legal interpretation does not mean a priori or even by means of forced interpretations that we are dealing with procedural misconduct or even worse gross procedural misconduct. […] It cannot be claimed that we are dealing with gross procedural misconduct simply because the exhaustive argumentation of the KED in its verdict [to reject Peto’ candidacy] goes agains the interests or expectations of the plaintiff.

The Administrative Appeals Court eventually accepted the arguments of Peto, granting her claim to be reinstated as a candidate for the Constitutional Court. According to Law 115/2016 art. 239 this decision is “final and irrevocable.”

The KED, however, has now decided to reject Peto’s candidacy for a second time. It is as yet unclear on which legal basis the KED has decided to do so, while at the same time it is unclear why the Administrative Appeals Court decided to grant only Peto’s appeal, and not the other six, which no doubt were based on similar arguments of “gross procedural misconduct.”

These recent events appear to show the intensification of a political battle between the ruling Socialist Party and institutions not fully under its control, such as the Presidency and the independent justice governance institutions, played out in those parts of the court system that have not yet been vetted.

This situation is the result of the failure of the vetting institutions to assess the judiciary according to the timelines established in the Constitution. This has resulted, in part, in the politicization of the decisions surrounding the nominations for the Constitutional Court and, in the (near) future, the Special Anti-Corruption Prosecution, General Prosecutor, and High Justice Inspector, all of which are “forthcoming.” This politicization will lead to a further capture of the judiciary by political forces and therefore further undermine the already meager and uncertain results of the justice reform.