The International Monitoring Operation (ONM), which is managed by a board chaired by the European Commission’s Western Balkans Director Genoveva Ruiz Calavera, has failed to follow up on a formal complaint from former High Prosecutorial Council (KLP) member Antoneta Sevdari against two judges from the Special Appeals Chamber (KPA), Ardian Hajdari and Luan Daci.
On February 28, 2019, the KPA decided to dismiss Sevdari, overturning a previous confirmation of the Independent Qualification Commission (KPK). In late May, Sevdari sent two formal complaints to the ONM concerning judges Hajdari and Daci. Daci had presided over her appeal, Hajdari was one of the judges.
The KPA recently confirmed the ONM did not forward the complaints.
Sevdari builds her complaints on article 6(1) of the European Convention of Human Rights, which entitles everyone “to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Coincidentally, this article has been at the core of the cases filed at the European Court of Human Rights by Rovena Gashi, Dritan Gina, Besa Nikëhasani, and Altina Xhoxhaj, all dismissed by the vetting. Sevdari indicates that she also intends to appeal her dismissal in Strasbourg.
Sevdari also cites a previous decision of the ECtHR which has found a violation of art. 6(1) based on the fact that a judge had been elected based on an irregular procedure. She subsequently argues that in the case of the KPA, at least two judges involved in her case were elected through an irregular procedure, because they did not comply with the requirements set out in the Constitution.
According to Constitutional Annex art. C(5),
Members of the Commission and the judges of the Appeal Chamber shall have a university degree in law, and no less than fifteen years’ experience as a judge, prosecutor, law professor, advocate, notary, senior lawyer in public administration, or other legal profession related to the justice sector. […]
The Vetting Law is even more specific, in art. 6(1):
Member of the Commission and judge of the Appeal Chamber shall be appointed the Albanian citizen who fulfils the following conditions: a) Has completed the second level of university law studies with the degree ‘master of science’ in Albania or law studies abroad and has obtained an equivalent degree according to the rules on recognition of diplomas foreseen in the law; b) Having a professional experience of not less than 15 years as judge, prosecutor, advocate, professor of law, civil service employee at senior level or another recognised activity in the field of administrative law or in other fields of law; […] dh) Has not been subject to the disciplinary measures of dismissal or any other disciplinary measure in force under the law at the time of application; […] gj) Has very good knowledge of English language;
And art. 6(2):
Compliance of the above mentioned criteria shall be evaluated taking account specifically of the following data: a) Academic grade in the field of law; b) Special experience of the candidate in a certain field of law; c) Seniority in the profession; ç) Study experience and professional experience abroad; d) Having an average mark of not less than 8 in case he/she has completed the second level of university law studies with the degree ‘master of science’ in Albania or law studies abroad and has obtained an equivalent degree according to the rules on recognition of diplomas foreseen in the law;
Sevdari argues that Hajdari did not have “a professional experience of not less than 15 years as judge, prosecutor, advocate, professor of law, civil service employee.”
According to Hajdari’s CV provided to the parliamentary ad-hoc committee involved in the election of KPA judges, which until recently was publicly accessible on the website Lex Ferenda, Hajdari only spent 13 years being registered as attorney at law at the Regional Bar Association of Shkodra. During his hearing, he claimed, however, to have 17 years of experience, without any evidence to back up that claim.
Furthermore, Sevdari argues that there is no evidence of any business registration in Hajdari’s file, which suggests that Hajdari either never exercised his profession, or hid his income from the tax authorities.
Sevdari further points out that Hajdari did not have “an average mark of not less than 8 in case he/she has completed the second level of university law studies with the degree ‘master of science’ in Albania.”
In fact, Hajdari had an average 6.44 for the equivalent of a Bachelor in Law and had not completed second-level education. Hajdari admitted this during his hearing.
Finally, Hajdari presented no evidence of his knowledge of English in his dossier.
In other words, the appointment of Hajdari violated at least three specific criteria in Albanian legislation and was therefore irregular, which in turn makes, following ECtHR jurisprudence, Sevdari’s dismissal illegal.
According to Sevdari, Daci did not fulfill the requirement to have “not been subject to the disciplinary measures of dismissal or any other disciplinary measure in force under the law at the time of application.”
In fact, as recently as 2016 Daci was rejected from an application procedure for a Court of First Instance (the lowest level) based on his dismissal from office based on a decision from December 24, 1997 of the High Council of Justice. However, during his hearing Daci claimed that he “resigned” instead.
Interestingly, Daci’s “experience” as judge was omitted from his CV provided to the ad-hoc committee, even though it was included on his CV when applied for the Court of First Instance job in 2016.
Furthermore, like Hajdari, Daci failed to provide any evidence of actually having worked as a lawyer: no tax receipts, again simply a registration at the Bar Association. Also Daci’s knowledge of English is unknown.
The ONM Takes No Action
In both cases, these are serious allegations. If the judges of the highest vetting organ have been appointed in violation of the Albanian legislation, this severely undermines the legitimacy of the vetting itself.
Yet on October 1, KPA spokesperson Alida Beqiraj confirmed that the KPA had received Sevdari’s complaints, but that no official complaint was received “in the form required by the law.”
According to the Vetting Law, art. 17(1), disciplinary proceedings against a KPA judge can only be filed by judges at the vetting institutions or observers from the ONM. Following art. 17(2), members of the public, such as Sevdari, should submit their denunciations to the ONM.
In other words, the KPA received Sevdari’s complaint, but not through the official channel of the ONM. This means that the ONM has so far decided to purposefully ignore Sevdari’s complaint.
What should be noted in both cases, is that the allegations of Sevdari can be easily verified by any official authority: either Hajdari legally worked as a lawyer for 15 years or he didn’t. Either he had an average of 6.44 or not. Either he knows English or not. And the same with Daci: either he was dismissed from office or he wasn’t. The transcripts of their hearings are public, everything they said can be verified.
Why would the ONM choose not to follow up? The reasons may be obvious. If it turns out that Hajdari and Daci were indeed appointed in violation of the law, this would not only invalidate their judgments, but moreover cause considerable damage to the credibility of the vetting process.
Instead, by doing nothing, the ONM has decided to undermine their own credibility as neutral arbiters, and pass the ball to the Strasbourg Court. And when indeed the European Court of Human Rights decides that Sevdari was not tried “by an independent and impartial tribunal established by law,” the damage will be all the greater.