From: Vincent W.J. van Gerven Oei
Justice Reform in Albania, an ‘Example’ for Armenia?

An Armenian Déjà-Vu

Sometimes, it is helpful to look at the Albanian justice reform through the lens of other countries. Previously, I have written about developments with regards to EU-supported justice reform in Kosovo and Romania,which are in a way “down the road” of the reform process Albania is currently in. This time I would like to turn to Armenia, where they are about to embark on a justice reform.

The immediate impetus for the call for justice reform was, as in Albania, political in nature. On May 18, 2018, a court decided to release former Armenian President Robert Kocharyan on bail from pre-trial detention. Kocharyan had been President from 1998–2008, and had unlawfully declared a state of emergency following a disputed election in March 2008. As a result 10 people were killed in clashes with the police.

Following his rival’s release, Prime Minister Nikol Pashinyan attacked the judiciary, rallying his supporters to block the courts:

The people of Armenia perceive the judicial authority as a remnant of the former corrupt system in which plots against the people are constantly hatched and executed. To what extent this theory is true and substantiated is a different matter.

But the fact is that the judicial authority does not enjoy the people’s trust and therefore lacks sufficient legitimacy to act, which now poses a direct threat to the normal life, stability and national security of our country.

Unfortunately, I can’t conclude that the judicial system is not subjected to shadowy and illegal influences mainly coming from the former corrupt system because these two systems are connected to each other through human, political and other ties.

Pashinyan further called upon a complete reform of the justice system, with a “vetting” of all prosecutors and judges: “That is, the public must have full information about the judges’ political ties, origin, property status and activities as judges and in their previous capacity, and their individual and professional traits.”

This was immediately echoed by the internationals, with the Parliamentary Assembly of the Council of Europe (PACE) stating:

Judicial reforms remain a priority and we welcome Prime Minister Nikol Pashinyan’s stated desire for far-reaching reform of the judicial system.

The US embassy declared:

The United States is committed to working with Armenians to support the strengthening of an independent judiciary, which includes anti-corruption efforts and the development of rule of law institutions.

So far, the parallel with Albania is striking. Also Albanian Prime Minister Edi Rama vowed to bring justice after 4 civilians were killed by the Republican Guard during protests against the previous Berisha government. Furthermore, Prime Minister Rama has been less than pleased with the judiciary, especially when it files cases against members of his own party, as recently once again became clear in the case of the director of the Durrës Cadaster.

Also the incendiary language of Pashinyan and his demands concerning the “vetting” as a cure-all shorthand for a complex justice reform closely mimic the rhetoric of Edi Rama.

In a wonderful parody of reality, the EU Ambassador in Armenia, Piotr Świtalski, even recommended the Albanian justice reform as a “positive” model that the Armenians could follow:

We are ready to share experiences with other countries, as the EU is involved in the reforms in Albania, as Minister of Justice Artak Zeynalyan said. Armenia should decide for itself because any model cannot be regarded as a solution in your problems as the countries are different. There are several models of vetting that have recently been actively discussed. There are different models and experiences, both positive and negative. I think that if we look at the Albanian experience, it is observed as positive. It involves a complex legal process, it is time-consuming, and costly, but even on EU official websites you can read articles about Albanian experience and see the overall picture that is positive.

Indeed, the Armenians would do well only to check “EU official websites” if they want to read about these “positive” experiences. If they want to learn more about how to decapitate their judiciary and grant a carte blanche to their reformist Prime Minister, I would be happy to send them some articles of my own.

Restraint in Armenia, Laissez-Faire in Albania

This is, however, where the parallels between Armenia and Albania end. Because whereas in Albania the international community has inexplicably allowed Prime Minister Edi Rama to unleash the full force of his wrath on the judiciary, rendering its eventual independence all but impossible, in Armenia there were actually calls for restraint and respect for the independence of the judiciary.

To their statement supporting justice reform, PACE rapporteurs added:

Political stakeholders must refrain from actions and statements that could be perceived as exerting pressure on the judiciary. The independence of the judiciary is a pre-requisite for the rule of law.

Also MEP Sajjad Karim, Head of Delegation to Armenia, expressed his concern, even calling into question the rhetoric of “vetting”:

Without prejudice to the principle of non-interference, we would like to express our concern regarding the Prime Minister Nikol Pashinyan’s call on his supporters to block the entrances to all courts nationwide on 20 May, and for a mandatory, popular ‘vetting’ to be applied on all judges.

We fully acknowledge that the politicisation of judges is a matter of paramount importance in Armenia […].

These statements are striking, especially because neither the Council of Europe nor the European Parliament – nor any international actor for that matter – has so far issued any similar statement in response to Prime Minister Rama’s attacks on the judiciary. On Friday, in the most miserable statement I can recall, the European Commission instead appears to provide support for Rama’s insistent attacks on the judiciary by speaking of “criminal offenses” by magistrates.

Furthermore, it appears that with regards to Armenia, the Council of Europe Venice Commission has learned from its mistakes in Albania. We can read in its Session Report of July 11, 2019:

Upon the invitation of the Armenian authorities, a delegation of high Council of Europe officials, led by the Director-General on Human Rights and the Rule of Law and including the Secretary of the [Venice] Commission, went to Armenia to discuss judicial reform. The agreement was reached that it would be neither necessary nor useful to carry out a general vetting of all sitting judges. Instead, disciplinary procedures should be strengthened and a link with the asset declaration system established. To this end, the Judicial Code should be amended before the end of July.

What does this mean? It means that the vetting of the entire judiciary, which has led to a deep Constitutional crisis in Albania, was never an absolute necessity for the Albanian judiciary, but the result of a political choice. It therefore means that to implement the vetting for all the judges and prosecutors in the Albanian “experiment” was precisely that: an experiment with an unknown outcome. Now, three years later, the Venice Commission seems to be the only international organ so far to have drawn some conclusions.

It should be pointed out, however, that the Venice Commission also expressed reservations with the Albanian desire for a full vetting:

The necessity of the vetting process is explained by an assumption – shared by nearly every interlocutor met by the rapporteurs in Tirana – that the level of corruption in the Albanian judiciary is extremely high and the situation requires urgent and radical measures. The question is whether this wide consensus creates a sufficient basis for subjecting all the sitting judges (including the honest ones) to re-evaluation, irrespective of the specific circumstances of each individual judge. This is a question of political necessity and the Venice Commission is not in a position to pronounce on it. It must be remembered, however, that such radical solution would be ill-advised in normal conditions, since it creates enormous tensions within the judiciary, destabilises its work, augments public distrust in the judiciary, diverts the judges’ attention from their normal tasks, and, as every extraordinary measure, creates a risk of the capture of the judiciary by the political force which controls the process.

What the Armenian situation also shows is this: It is the government and the European Commission that support a full vetting – not the Venice Commission or a broad representation of Armenian politicians, as result of the agreement shows. The vetting has always been an executive-driven program that is non-essential to actual justice reform, which can take many forms and shapes. Vetting has been only crucial for the paralysis of the judiciary and the complete capture of the state by the ruling Socialist Party. Let us hope that indeed Armenia will learn from Albania’s mistakes and further ignore the siren song of EU Ambassador Świtalski.