From: Vincent W.J. van Gerven Oei
The Doomed ‘Temporary’ Solution for SPAK The High Prosecutorial Council

With the election of Besnik Muçi as judge at the Constitutional Court and the dismissal of Ndini Tavani, the pool of potential prosecutors for the Special Anti-Corruption Prosecution Office (SPAK) has shrunk from 15 to 13 qualifying candidates.

As the situation stands right now, 8 candidates from the qualifying list have passed the vetting with a final verdict:

  • Arben Kraja (confirmed December 17, 2018 – final)
  • Edvin Kondili (confirmed June 7, 2019 – final)
  • Ened Nakuçi (confirmed June 7, 2019 – final)
  • Enkeleda Millonaj (confirmed June 13, 2019 – final)
  • Manjola Kajana (confirmed June 19, 2019)
  • Behar Dibra (confirmed June 25, 2019 – final)
  • Elida Kaçkini (confirmed July 18, 2019 – final)
  • Klodian Braho (confirmed July 25, 2019 – final)
  • Altin Dumani (confirmed July 31, 2019 – final)

Four  candidates have still not been scheduled by the KPK:

  • Anton Martini (not yet scheduled)
  • Elisabeta Imeraj (not yet scheduled)
  • Doloreza Musabelliu (not yet scheduled)
  • Anita Jella (not yet scheduled)

Yesterday, Parliament demanded that the High Prosecutorial Council (KLP) establish SPAK by the end of the year, which implies with less than its constitutionally mandated minimum amount of prosecutors, which is set at 10. Indeed, KLP Chairman Gent Ibrahimi has in the past suggested that SPAK might be established with a number of prosecutors less than 10.

Ulsi Manja, Chair of the Parliamentary Committee for Legal Affairs, stated:

It’s nice that there are no deadlines [for the creation of SPAK], but Albania at the end of the year needs to have a General Prosecutor with a constitutional mandate, but also SPAK.

There is no dilemma about the constitutional and legal framework. We have 8 prosecutors that are a candidate for SPAK, for whom the KPK decision is final. Personally I share the opinion that the KLP should respect the spirit and letter of the Constitution of the country, more precisely art. 148/dh(2) of the Constitution where it says that SPAK consists of at least 10 prosecutors. That is the constitutional definition.

But, the legal framework that we have in force has provided a solution. It’s sufficient to look at the Status Law. We have a lot of prosecutors in the system, which have successfully passed the vetting and for whom we can utilize the possibility of the law for temporary promotion or lateral transfer.

The temporary solution proposed by Manja has all the echoes of previous “solutions” (a.k.a. tiny legal loopholes) proposed by legal experts to solve the deep constitutional crisis of the country. One can think here of the EURALIUS proposal to stock the dysfunctional High Court with judges through “temporary promotions” simply to get the quorum to elect Constitutional Court judges, or OPDAT’s misguided justification for the unconstitutional election of Temporary General Prosecutor Arta Marku. It will of course be no surprise to anyone if also for the SPAK dilemma EURALIUS & OPDAT may have proposed such a solution outside of public scrutiny.

In a statement today during a meeting with US Deputy Assistant Secretary of State, Jorgan K. Andrews, KLP Chair Ibrahimi stated:

In 10 months, the KLP as established a solid legal infrastructure for the establishment of SPAK. The Council is in the last phase for two important processes: the election of the General Prosecutor and the establishment of SPAK. The Council sees legal possibilities for the establishment of SPAK with 8 prosecutors that now have been vetted and 2 acting prosecutors from the list of candidates qualified for SPAK, which have passed the vetting with a final verdict.

Let us first look at the legal loophole suggested by Manja (and the internationals) that the KLP would like to exploit to establish SPAK with the constitutional minimum of 10. From their statements, this appears to imply a “temporary transfer,” which is defined in the Status Law, art. 46:

Art. 46(3) In very voluminous or complex cases, the chairperson of the Special Prosecution Office may ask chairpersons of prosecution offices of first instance to consent on the transfer of prosecutors with special qualification to work on a particular case or for a specific period of time in the Special Prosecution Office.

(4) Before taking the decision on the transfer according to paragraph 3 of this Article, the chairperson of the Special Prosecution Office shall request an opinion of the High Prosecutorial Council on the transfer and the qualification of the respective prosecutor. The High Prosecutorial Council may deliver a non-binding opinion at least within three days after receiving the request.

On first reading it already appears questionable whether we are dealing in this particular case with “very voluminous or complex cases,” because SPAK has not been established yet. However, if we choose to ignore this detail and interpret the law liberally, as EURALIUS and OPDAT have a habit of doing, it remains clear that in order for a prosecutor to be temporarily promoted, the Chief Special Prosecutor of the SPAK needs to be involved, who should make the request for a temporary promotion.

According to the Constitution, art. 148/dh(3), the Chief Special Prosecutor is elected as follows:

The Chief Special Prosecutor of the Special Prosecution Office shall be elected from the ranks of the prosecutors of this Prosecution Office by a majority of the members of the High Prosecutorial Council for a three-year term, without the right to re-appointment, in accordance with the law.

If we follow the logic of the Constitution and the Status Law, SPAK needs to exist with a constitutional minimum of 10 prosecutors (Constitution, art. 148/dh(2)) before a Chief Special Prosecutor can be elected by the KLP (Constitution art. 148/dh(3)). And this Chief Special Prosecutor needs be elected before a request for a temporary transfer can be made (Status Law, art. 46(3), (4)). In other words, it is logically impossible to use the temporary transfer described in the Status Law to establish SPAK, because no one exists with the legal powers to invoke it.

Besides this logical (and legal) impossibility, let us think for a moment about what it means for the two temporary appointments to come “from the list of candidates qualified for SPAK, which have passed the vetting with a final verdict.”

These would be prosecutors who applied for SPAK, passed the vetting, but were excluded from the list of 15 official candidates compiled by the KLP (of which currently only 8 are available). On April 5, the KLP published the list of names of applicants who fulfill the formal requirements for SPAK with decision no. 57. This list contained 25 names. The list of 15 officially qualified candidates was approved on July 16 with KLP decision no. 137.

The only logical conclusion can be that in Manja’s and Ibrahimi’s proposed scheme, the 2 “temporary” special prosecutors are elected from the 10 candidates who fulfilled the formal requirements, but who fell below the quality requirements for the final list of 15. This group comprises the following candidates:

  • Eugen Beci (dismissed by KPK)
  • Shkëlzen Cena (dismissed by KPK)
  • Gëzim Cenaj (withdrawn)
  • Fatmir Hoxha (withdrawn)
  • Irena Nino (withdrawn)
  • Vladimir Mara (confirmed June 14, 2019 – final)
  • Dritan Prençi (confirmed June 7, 2019 – final)
  • Maksim Sota (not yet scheduled)
  • Donika Prela (confirmed February 5, 2019)
  • Besim Hajdarmataj (confirmed October 16, 2019)

As may be clear from this list, only 2 prosecutors fit the profile given by Ibrahimi: Vladimir Mara and Dritan Prençi. Both passed the vetting with a final verdict. Both applied for SPAK, and both were considered not qualified enough to make it to the April 5 list of 15 qualifying candidates.

So what does it mean if the KLP decides to continue with this ill-advised – and I would say, illegal – scheme. It would mean that the entire interviewing and ranking procedure that the KLP spent months on in order to arrive at a high-quality SPAK will have been for nothing. Not only, as I have argued before, will the ranking have been a useless waste of time, even the entire preceding phase will have been without sense or reason. In other words, accepting Manja’s scheme would mean to admit complete and utter defeat in the face of political urgencies.

If the KLP, under pressure of the Assembly and the internationals, is to go through with this scheme, they will be give off a powerful signal: We are willing to sacrifice quality for speed. We are willing to cancel our own decisions in order to please political interests. And we are willing to ignore the objective qualifications of SPAK candidates and grant the honor of establishing SPAK to 10 prosecutors not elected based on their skills and qualities, but simply because fate decided they were vetted first. This would be a tragic mistake, and strong evidence for the ongoing politicization of the justice reform.