Luan Daci, member of the Special Appeal Chamber (KPA), was suspended from duty by the Special Anti-Corruption Court on the request of the Special Anti-Corruption Prosecution (SPAK) on the charge he concealed his dismissal as judge in 1997.
The decision provoked immediate reactions, notably by the US ambassador who alluded to a “backdoor agreement to to kill the Justice Reform”.
But what is the truth of the “Daci file”? Is there a conspiracy to kill the Justice Reform? Or is the judicial trying to correct a mistake made about three years ago?
Daci’s appointment – a failure of the Ombudsman, the International Monitoring Operation and the Parliament
Vetting commissions are temporary bodies, elected only once. The selection process, as defined by the Constitutional Annex and the vetting law, was managed by the Albanian Ombudsman (AP), who evaluated the applications and compiled a list of applicants who met the legal criteria and a list of those who did not.
Both lists were sent to the International Monitoring Operation (ONM), which evaluated the applicants and sent its recommendations to the AP. The two lists, together with the ONM recommendations, were forwarded to the Parliament, which, after a complex procedure, in June 2017, approved by a qualified majority the composition of the Independent Qualification Commission (KPK), the Special Appeals Chamber (KPA) and 2 Public Commissioners, the three institutions that would vet all judges and prosecutors.
Luan Daci applied to become part of the vetting institutions in February 2017. After the verification by the Ombudsman and evaluation by the ONM, on 3 March 2017, the two lists of candidates were submitted to Parliament. Luan Daci was in the list of candidates who did not meet the legal criteria to serve in the vetting institutions—he was short of the required professional experience and failed to provide all required documentation.
In dubious circumstances, a month later, on 7 April 2017, with the justification that some candidates had submitted late additional documentation, the Ombudsman re-send to the Parliament two revised lists and, this time, Luan Daci was included in the list of qualified candidates.
Part of the additional documentation submitted by Daci was a lawyer licence, issued on 27.03.2000, and signed by Kleanthi Koçi, a former head of the National Chamber of Layers. However, Koçi had passed away on 21.02.1999, one year before the date on the licence submitted by Daci.
Records of the National Business Center show that Luan Daci was registered as a professional lawyer f0r 10 years, between 18.10.2007 and 22.09.2017.
But during his hearing in the parliamentary committee, Daci claimed he had worked as a lawyer from 2000 onwards, though there are no traces of his activity before 2007.
The law requires 15 years of experience in a legal profession for members of the vetting institutions. Daci has only 14 years of documented experience, 10 years as a lawyer and four as a judge, therefore he cannot serve as a vetting judge.
Furthermore, Daci did not include in his curriculum vitae the 4 years as a judge in the Tirana District Court. This “lapse of memory” did not escape the attention of the parliamentary committee — during the hearing Daci was asked about the circumstances of leavin his work as a judge, and replied “I did resigne”.
This claim was later proved to be false, because in fact Daci was fired from the bench in December 1997 by the High Judicial Council (KLD) for “violating the law and incompetence.”
This fact reappeared in November 2016, during a meeting of the KLD which rejected Daci’s application to be appointed judge, on the ground he was previously dismissed on serious charges.
The vetting law (article 6) excludes people dismissed for serious violations, including violations of the law and incompetence, from participating in vetting institutions.
In addition to lack of professional experience and having been expelled fro the judicial, Daci did not meet another required qualification, having a good command of the English language.
In his application, Daci did not submit any evidence of his English skills. In fact, he does not speak any English, which is the reason why he always used the translations services whenever ONM representatives delivered their remarks at vetting hearings.
In summary, Luan Daci failed to meet three constitutional and legal criteria to serve on the vetting institutions, but due to failure of all three filters — the Ombudsman, ONM and the Parliament — he was voted in June 2017 to be a judge on the vetting appeals institutions, and has since ruled on the careers of dozens of judges and prosecutors.
Parliament, the ONM and the KPA ignore the evidence against Daci
About a year ago, former prosecutor Antoneta Sevdari made public documents that proved all the the above facts.
Sevdari also informed the Albanian Parliament, making the relevant documents available, but they ignored her evidence
Sevdari, also, asked ONM and the KPA to initiate disciplinary proceedings against Luan Daci and Ardian Hajdari, another vetting judge allegedly nominated in violation of the law and legal criteria.
ONM’s stance seems strange, because, in a legal opinion on Albania’s judicial vetting submitted to the Strasbourg-based European Human Rights Court, the European Commission clearly stated that the role of ONM is to ensure due process and the fundamental rights of the vetting subjects.
Furthermore, ONM is an institution tasked by the Albanian Constitution to verify and ensure that candidates of vetting bodies fulfil the required qualifications.
Going silent on the issue, ONM violated Sevdari’s rights and failed its constitutional duty.
The same position was also taken by the Ombudsman, ONM and the Parliament, in the case of High Prosecutorial Council (KLP) member Besnik Cani, who has since been dismissed by a three-judge panel that included both Daci and Hajdari.
In fact, before his hearing, Cani requested the dismissal of Daci and Hajdari from the vetting institutions and their exclusion from his case, arguing that their participation would violate due process and his right to a fair trial.
Cani’s request was rejected by the KPA, without giving any explanation.
The case goes to SPAK and the Constitutional Court
Faced with the total disregard of his right to a fair trial, former KLP member Cani, decided to follow another path.
In January 2020, he filed a suit against judge Luan Daci with SPAK for “falsifying documents” regarding Daci hiding his dismissal by KLD in 1997,.
On February 10th, SPAK officially launched an investigation into Daci, notifying the KPA and ONM, who remained silent.
In February, Cani also asked the Constitutional Court to review the appointment of the two KPA judges, Luan Daci and Ardian Hajdari.
However, on April 29, Constitutional Court chamber rejected to hear the case arguing that the plaintiff, Cani, lacked standing in front of the Constitutional Court.
The decision seemed a desperate action to avoid a contentious and consequential case.
Vetting questioned at the Strasbourg Court
In the legal opinion sent by the European Commission to the Strasbourg Court regarding a vetting case, EC acknowledged that, in certain cases, the vetting process may affect the due process.
However, the European Commission has been careful to point out that such cases cannot be used to call into question the vetting process as a whole.
The Strasbourg Court has repeatedly ruled that the right to a fair trial requires a trial by a court which has been established by law. This principle implies that judges must be elected in accordance with the law.
In the case of Luan Daci, it is clear that this principle has been violated.
All judges and prosecutors vetted by Luan Daci would have the right to apeal their case to the Strasbourg Court, as their right to a fair trial has been infringed upon.
The main goal of the Justice Reform has been to guarantee equality before the law. Rule of law requires that Daci be prosecuted and those vetted by him be offered a new vetting process.
If this does not happen, due to political or diplomatic pressure or interference, it will be bad news for justice in Albania and the Justice Reform itself.