From: Vincent W.J. van Gerven Oei
National Ombudsman Criticizes ‘Lack of Transparency’ of Justice Appointments Council

National Ombudsman Erinda Ballanca has released a public statement criticizing the Justice Appointments Council (KED) for the procedure it followed during the recent contentious election of 4 members of the Constitutional Court.

According to the Constitution, the National Ombudsman is present in KED meetings as observer.

The statement starts out with a criticism of the legal framework on which the KED is founded, which not only severely limits the available candidates, but also EURALIUS, whose “interpretations of the law […] were in many cases made in order not to block the progress of the reform.” The Ombudsman further scrutinizes the legal problems with the lottery system, and the fact that the KED has so far never had the legally mandated nine members.

Furthermore, the legal complexities, if not impossibilities, of the justice reform have, according to Ballanca, undermined the public’s trust in the reform:

We may conclude that the constitutional provisions and those of law no. 115/2016 “On the Governance Institutions of the Justice System” were very complex, envisioned the establishment of a number of new organs, which would have to accomplish a nearly impossible task under the conditions determined by the Constitution and the law. The expanded (or permissive) interpretations, to bypass several provisions of the law, cannot solve the problem of an overly complex law and everyone’s decision to give one legal clause prominence over another does not help the new institutions that were established to have from the beginning the necessary trust of the public and other actors that have assisted in the drafting of the justice reform.

On the other hand, a strict insistence on the legal provisions would make the implementation of the reform impossible, not only because of the considerable number of contradictory or mutually exclusive provisions, but also because the deadlines imposed in the Constitution and laws have turned out impossible to implement.

The National Ombudsman also criticizes the lack of transparency of the Chair of the KED, Ardian Dvorani, who has failed to publish any of the minutes of the KED meetings on the website of the High Court, as is required by law. Moreover, minutes were not made available to the National Ombudsman despite repeated inquiries.

It also turns out that the nomination process of the KED itself was marred with irregularities, often directly the result of Chair Dvorani’s (in)actions:

On September 21, 2019, based on a notification made just one day before, the Council has held its final meeting in relation to its duty, the presentation and ranking for each of the vacancies. In that meeting we addressed all problems that we have found regarding the nature of decision making and legal argumentation of the fact that the sending of the lists for an insufficient number of candidates [i.e., 6 candidates for 4 vacancies] would present a considerable anomaly.

After that meeting there was no announcement from the side of the Chair of the Council with regard to the end of the procedure, that is, the sending of the lists of the nominating organs [sc. President, Parliament, High Court] and their sending in the logical manner of the law [i.e., by means of rotation], to allow for the maximum possibility of the nominating organs to elect among several candidates, to avoid any doubt that the KED would predetermine the members of the Constitutional Court […].

Even though the final candidate lists were supposedly finished on September 21, the National Ombudsman notes that “there is no explanation whatsoever […] what caused the sending of the final list to the nominating organs days after September 21 (15 for the President, and 21 days for the Assembly),” especially because the lists for President and Assembly completely overlapped.

The National Ombudsman concludes that the actions of the KED and other institutions during this nomination process have severely damaged the credibility of the justice reform:

We’d like to recall that one of the reasons for which the Justice Reform was conceptualized was the loss of the public’s trust in the justice institutions. Precisely for this reasons we are of the opinion that the considerable work done by many state institutions, as well as the process of the vetting of judges and prosecutors, as well as the establishment of new institutions envisioned by the justice reform legislation, is weakened precisely by the institutions conflicts that happened during the process of establishing the Constitutional Court

The National Ombudsman will complete a full report on the election of the new members of the Constitutional Court, which will be presented to Parliament.