From: Vincent W.J. van Gerven Oei
Justice Reform State of Play: A Weakened and Demoralized Judiciary Old friends meet in front of a questionable acquisition OPDAT legal expert John Smibert (top left) with former Minister of Interior Fatmir Xhafaj (top second from left). In the front, smiling, US Chargé d'Affairs Leyla Moses-Ones and ONM Chief Genoveva Ruiz Calavera.

As the year is drawing to a close, it is perhaps appropriate that we pause and take stock of the bleak wasteland that is the Albanian judiciary branch of government. Rather than strengthening the judiciary, the justice reform, started in 2016, has severely weakened and undermined it. This is caused in part by the justice reform legislation, drafted mainly by unelected legal experts at the offices of EURALIUS and OPDAT and only partially approved with bilateral support, and in part by the appropriation of the justice reform by Prime Minister Edi Rama for his personal and political gain.

This year, Prime Minister Rama has waged an unrelenting attack on the judiciary, notoriously coining the term “KÇK,” an Albanian acronym for “kap çfarë (mund) të kapësh” (“grab what you can”), which he has used to describe “the most dangerous criminal organization” in Albania, namely the unvetted members of the judiciary. This attack on and politicization of the judiciary has been silently endorsed by the international diplomats in Tirana, who failed to defend the purported aim of the justice reform: an uncorrupted, independent judiciary beyond of political influence.

Meanwhile, those judges and prosecutors remaining in the judiciary, both the few who are already vetted and the many who remain to be assessed, work in an environment stripped of legitimacy, political support, and, most importantly, personnel. The vetting, even though proceeding at a steady, glacial pace, has taken out more than 50% of the senior judges and prosecutors without replacing them. The higher quota for students at the School of Magistrates will be unable to compensate for this in the near future. According to the few conversations I have had with current and former functionaries, this lack of resources, combined with the constant political onslaught, has led to a complete demoralization of the judiciary. As a result, mafia bosses, oligarchs, and corrupt politicians alike continue to escape justice, while common Albanians suffer under pervasive lawlessness.

Let us now have a closer look at some aspects of the justice reform, and how they unfolded in 2019.

Constitutional Court

After both Socialist Party officials and internationals representatives promised themselves – no one else would believe them – that the Constitutional Court would be established “as soon as possible” and “before the summer,” it is nowhere to be seen, drowned in an even greater deadlock than at the beginning of the year. Not only have several contentious and highly flammable dossiers piled up on its desk (including the highly contested local elections boycotted by the opposition and canceled, to no effect, by the President), also the election of four new members of the Court has been marred in irregularities, bad faith, and interinstitutional fighting.

No small part of the chaos in the election process was caused by the Justice Appointments Council (KED), which itself was the product of contested elections in 2018. The KED decided to skip the vetting of Constitutional Court candidates (despite some “appeals” of internationals), allowing Besnik Muçi to become one of the qualifying candidates. Muçi was then appointed, and a few weeks later dismissed by the Special Appeal Chamber. Three other members were appointed by President and Parliament – in open violation of the order established in the Constitution and Constitutional Court Law – including two members for a single seat, which ended up in a mudslinging fight between Parliament and President, and one member performing a parody of the official oath in front of a local notary.

The end result of this year is a Constitutional Court with four members in total (still two below quorum), with Acting President Vitore Tusha already way beyond the end of her official term. Another judge sticking to their seat is KED chair Ardian Dvorani, by now the longest serving (and only) judge on the High Court and the center of much of the controversy surrounding the Constitutional Court appointment procedures. President Meta filed a lawsuit against him. The case was dropped by the Prosecution Office of Tirana and referred to SPAK. Meanwhile, the government is brooding on a unilateral reform of the appointment procedure.

SPAK

The establishment of the Special Anti-Corruption Prosecution Office (SPAK) was yet another of the great wishes of the internationals, which must have exerted so much pressure on the High Prosecutorial Council (KLP) that it decided to nominate 8 prosecutors to SPAK even though the legally mandated number was 10. As I have argued before, by appointing members to SPAK without awaiting the vetting of all qualifying candidates (several of which are known to be “not preferred” by the government), the KLP has made a complete scam of the establishment process, which has now culminated (as I predicted) in a SPAK with 8 official members, 2 “temporary transferred” prosecutors who were originally disqualified, and a chair who was an investigator during the communist dictatorship. This is hardly the ideal basis for an investigation into the corruption and mafia connections of a government that is the direct inheritor of the power structures of the former regime, and 2020 will show that SPAK, no doubt suffering from the same personnel shortage as the rest of the judiciary, will produce very few tangible results, let alone any of Donald Lu’s infamous “big fish.”

Vetting

Finally, let’s have a look at the vetting, which still hasn’t been able to vet all the dossiers opened in January 2018. According to my own tally, the Independent Qualification Commission (KPK) has since opening the first dossiers in December 2017 vetted 222 magistrates, which is a little over a quarter of the 800 magistrates in total. The order in which these candidates are vetted is partially decided by a lottery system determining when dossiers are opened, but is otherwise fully at the discretion of the KPK and Special Appeal Chamber (KPA), which are thought to slow down or speed up certain dossiers under pressure of the Rama government. Especially in case of the SPAK candidate dossiers, this does not seem unlikely.

When we look at the actual performance of the vetting institutions, the EURALIUS estimate of finishing the vetting by 2021 appears even more laughable now than it did a year ago. On average, the KPK has delivered 2.02 verdicts per week, which, when extrapolated into time, still puts the end of the vetting in 2027. There is no evidence of the vetting speeding up in any manner.

Other trends that I noticed at the beginning of this year have also been consolidated. Only 39% of all cases treated by the KPK and KPA so far has led to a confirmation in office, with 135 out of 221 magistrates being dismissed or “voluntarily” retiring. Extrapolating this trend will see 488 magistrates, often with many years of experience, leave the Albanian justice system. To compare: the quota of School of Magistrates students for the 2019–2020 academic year was 50. At that pace, it will take until at least 2030 before all positions currently being vacated will be replenished. Meanwhile, the High Court has a backlog of cases numbering more than 30,000.

In other words, the understaffing and pressure upon the justice system will last for at least another decade, which will include at least 3 more parliamentary elections. I am not sure whether anyone in the Berlaymont or Aba Fifth is truly appreciating the massive opportunities a weakened and demoralized judiciary offers to those who are in power, but certainly those inhabiting the stately Italian architecture on both sides of the Boulevard of the Martyrs of the Nation will not fail to seize the opportunities and reap the profits.

Three years in, the justice reform has crippled the Albanian judiciary. A recent EU poll showed that already 45% of the Albanian population is negative or uninformed about the justice reform. Unless the EU and US take a radically different position and reform the justice reform, this number will continue to rise, as the chokehold of the current government on Albanian society will continue to strengthen.