From: Vincent W.J. van Gerven Oei
SPAK to Be Established without Constitutional Quorum The High Prosecutorial Council

The High Prosecutorial Council (KLP) has decided to establish the Special Anti-Corruption Prosecution (SPAK) without the constitutionally mandated quorum of 10 prosecutors.

In a statement to the press, KLP Chair Gent Ibrahimi stated:

Today, we arrived at the conclusion that the establishment with 8 or with 10 members is not up to us. We are nominating the prosecutors for SPAK, we don’t take the decision on the creation of SPAK. We don’t violate the Constitution for the establishment of SPAK with 8 members.

With its decision not to “establish” SPAK but simply “nominate” 8 prosecutors to SPAK, the KLP is trying to negotiate a way between the constitutional requirement that the number of SPAK prosecutors cannot drop below 10, and the pressure placed upon the Council to “deliver” the Special Anti-Corruption Prosecution.

According to Constitution art. 148/dh(2),

the Special Prosecution Office shall consist of at least 10 prosecutors, who shall be appointed by the High Prosecutorial Council for a 9 year term, without the right to re-appointment. The law shall provide further criteria for the selection as well as for the transparent and open procedure of appointment.

With his solution to nominate 8 prosecutors to the SPAK, the KLP argues effectively that it is not up to KLP to check whether SPAK consists of 10 prosecutors, but that it merely appoints prosecutors to SPAK. It would therefore be up to SPAK itself to decide whether it has fallen under the constitutionally determined quorum, and what to do about it.

Furthermore, the Constitution does not set a quorum for the election of the Chief Special Prosecutor, following art. 148/dh(3):

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.

Thus, the KLP argues, it would be perfectly within legal and constitutional boundaries to nominate 8 prosecutors to SPAK, let them elect a Chief Special Prosecutor, which in turn will deal with SPAK’s own lack of quorum.

Although this solution elegantly, if not somewhat deviously, avoids the “temporary” solution floated by the heat of the Legal Affairs Commettee Ulsi Manja, which envisions the illegal establishment of SPAK with 8 fully qualified prosecutors and 2 “temporarily transferred” prosecutors, it could very result in exactly the same outcome: faced with a shortage of two prosecutors, SPAK cannot but decide to request the temporary transfer of two regular prosecutors to its ranks.

In other words, the KLP has merely moved the issue of the current shortage from its own plate to the plate of the future SPAK.

Furthermore, there is absolutely no reason why the KLP could not avoid the entire issue by simply waiting until 10 prosecutors that qualified for SPAK have passed the vetting. By choosing this solution, SPAK is in effect giving in to political pressure, thus showing that the new justice system is anything but independent from politics.

Moreover, the solution chosen by the KLP raises the question why SPAK was not established as soon as 6, 5, or 4 candidates had passed the vetting with a final verdict. If the KLP is indeed not bound by the Constitutional quorum of 10, then why did they wait until 8?

Technically the KLP could have “established” SPAK with a single prosecutor, who could have elected himmself or herself chair, and then request the temporary transfer of 9 others. That would have been as legal as the current solution.

This situation raises  again the infamous question of the “spirit” of the law, which appears to have escaped from Tirana to loftier realms.

If the SPAK will indeed implement this plan, SPAK will be “established” with the following 8 prosecutors:

  1. Arben Kraja
  2. Edvin Kondili
  3. Ened Nakuçi
  4. Enkeleda Millonaj
  5. Behar Dibra
  6. Elida Kaçkini
  7. Klodian Braho
  8. Altin Dumani

Meanwhile, the Administrative Appeals Court has dismissed the appeal of Lulzim Alushaj against the decision of the KLP to disqualify him as candidate for General Prosecutor. This means also this process will be able to continue.

Note: this article was updated as more information about the KLP session became public.