From: Vincent W.J. van Gerven Oei
Establishing SPAK: How Soon Is “Very Soon”?

In a recent statement, the High Prosecutorial Council (KLP) declared that the Special Anti-Corruption Prosecution Office (SPAK) would be established “very soon.” It seems, however, that the vetting commissions are not working to make that happen.

On July 16, the KLP announced the final, ranked list of SPAK candidates:

  1. Altin Dumani (confirmed July 31, 2019)
  2. Anton Martini (not yet scheduled)
  3. Elisabeta Imeraj (not yet scheduled)
  4. Arben Kraja (confirmed December 17, 2018 – final)
  5. Doloreza Musabelliu (not yet scheduled)
  6. Klodian Braho (confirmed July 25, 2019)
  7. Enkeleda Millonaj (confirmed June 13, 2019 – final)
  8. Manjola Kajana (confirmed June 19, 2019)
  9. Edvin Kondili (confirmed June 7, 2019 – final)
  10. Ened Nakuçi (confirmed June 7, 2019 – final)
  11. Elida Kaçkini (confirmed July 18, 2019)
  12. Ndini Tavani (not yet scheduled)
  13. Behar Dibra (confirmed June 25, 2019 – final)
  14. Anita Jella (not yet scheduled)
  15. Besnik Muçi (appeal pending)

According to the website of the Independent Qualification Commission (KPK), only five candidates have received a final confirmation, whereas for five other candidates the vetting hearing still needs to be scheduled. For one candidate, Besnik Muçi, an appeal of the Public Commissioner is pending at the Special Appeal Chamber (KPA).

In order to establish SPAK “very soon” there is only one legal and constitutional trajectory: the four remaining candidates who already were confirmed by the KPK must all have their verdict finalized (so without appeal), and the KPA must confirm Besnik Muçi in the coming weeks. This will result in the constitutional minimum of 10 candidates to start up SPAK.

Any appeal of the Public Commissioner to the confirmations of Dumani, Braho, Kajana, or Kaçkini will reduce the number of candidates with a final confirmation below the constitutionally required minimum of 10. In that scenario, the only solution for a “very soon” installation of SPAK will be for the KLP to violate the Constitution. Recent statements of KLP Chairman Gent Ibrahimi have already suggested that the KLP is poised to do so. Establishing the SPAK unconstitutionally will no doubt have devastating effects down the line on the legitimacy of any proceedings it might bring against corrupt politicians, for example.

It should also be noted that even if SPAK is established with the minimum of 10, the ranking implemented by the KLP is basically useless, as I argued before. Three out of the top five candidates will de facto not be founding members of SPAK, will not participate in the election of the Chief Prosecutor or the Director of the National Investigation Bureau, and will not be involved in setting up the institution. In other words, SPAK will be established with a suboptimal team consisting not of candidates selected based and ranked on merit, but simply because of the inner workings of the vetting institutions.

What should be done instead is to fast-track and schedule all hearings of SPAK candidates, and wait with establishing SPAK until all 15 candidates have passed the vetting. But no doubt this would go against the all-consuming desire of the US, EU, and Albanian government to see “tangible results,” preferably before the mid-October European Council Summit.