From: Vincent W.J. van Gerven Oei
KPA Verdict Shows KED Should Have Never Qualified Muçi for the Constitutional Court

The decision of the Special Appeal Chamber (KPA) to overturn the decision of the Independent Qualification Commission (KPK) and dismiss Besnik Muçi from office shows precisely the reason why the decision of the Justice Appointments Council (KED) to forgo a complete vetting of Constitutional Court candidates was a grave error.

In KED Decision no. 4 from March 11, 2019, the KED decided not to wait until candidates have received a definitive decision on their vetting.

Art. 111. The magistrate candidates and other subjects that are subjected to the transitory reassessment procedure according law 86/2016 [the Vetting Law], which have not yet been confirmed in office with a decision of the Independent Qualification Commission [KPK], even if an appeal has been filed, are not allowed to be a candidate.

Art. 112. The verification procedures for the vacant position cannot be finished until the KPK has made a decision with relation to the magistrate candidates and other subjects that are subjected to the transitory reassessment procedure according law 86/2016 [the Vetting Law].

By defining the vetting as such a limited manner, the KED decided to interpret, arguably in violation of the Vetting Law, the KPK decision as de facto final, thus setting the stage for the case of Besnik Muçi.

KED Chair Ardian Dvorani, who in last week became the center of accusations by President Ilir Meta of being a “blind soldier” for the Socialist Party, confirmed in July that Constitutional Court candidates will not need to be vetted.

The Council has legal deadlines to finish the process and different from SPAK, the provisions for the two posts [for the Constitutional Court and the High Justice Inspectorate] do not anticipate a final decision by the vetting.

Back then, Dvorani stated nonetheless that it “wouldn’t honor the process” if Constitutional Court judges approved by the KED would later be dismissed by the vetting institutions. This is precisely what happened yesterday.

The Socialist Party has tried to blame President Ilir Meta for the election of Besnik Muçi, by claiming that he elected the only unvetted candidate from the candidate list. For example, Deputy Prime Minister Erion Braçe declared on social media:

HOW BAD! HOW BAD! But this is the RULE OF LAW! Besnik Muçi was nominated judge at the Constitutional Court by the President of the Republic, without passing the Vetting!!!! The declaration that for a member of the Constitutional Court there is no need for vetting is nonsense, contains a great lie! Today, the highest vetting institution brought down Besnik Muçi!

However, President Meta’s only constitutional task is to choose a candidate from the list prepared by the KED, not to check whether a candidate passed the vetting. This was a task for the KED. The whole point of the preselection by the KED was to avoid political influence on the appointment procedure, and therefore the President cannot be blamed for exercising a constitutional right.

It was the KED that allowed an unvetted candidate to be verified, qualified, and ranked for a vacancy at the Constitutional Court. This once again showed that by acting under (inter)national political pressure, the KED’s decisions actually have been to the detriment of the establishment and credibility of the Constitutional Court: one step forward, and two steps back.