From: Genc Pollo
Comment: What Future for the Vetting of Albanian Judges and Prosecutors

1 – Some of yours and some of mine

As a minister responsible also for the media legislation until 2013 and chairman of the parliamentary committee overseeing also media affairs until 2017 I always was a bit perplexed when I had to explain to international experts why the Albanian law didn’t provided for an independent members  in the council of the Audiovisual Media Authority (AMA) but opted instead for a majority/opposition balance?

It wasn’t for lack of trying: for example the Central Electoral Commission (CEC) in 2000 was formed with members from civil society, academia and so on. And yet, in the elections of 2001 and 2003, they voted for scandalously illegal rulings favoring the government  party. 

Perhaps we would need to look more deeply at the reasons why the Albanian society can’t provide a needed quantity of qualified independent personalities. However, the  affairs of state can’t wait; they need timely solutions. 

After the opposition’s bitter accusations and some pointed OSCE criticism the CEC was reformed in 2003, via a consensus of the ruling Socialists and opposition Democrats.

They agreed to balance the number of the majority and opposition commissioners. The government retained a relative majority but important rulings would be taken by qualified majority necessitating the support from some opposition commissioners. And the reformed CEC didn’t hinder (couldn’t? didn’t want to?) the opposition’s elections victory of 2005. 

The consensual and functional CEC composition formula was adopted in the 2013 media law for the AMA council. 

 2 – The Hahn-Nuland formula wins

The most uncelebrated achievement of the opposition Democratic Party is she persuading the international community its own formula for setting up the vetting bodies was a reasonable one.

It first convinced them that the Socialist proposed formula would produce not only unaccountable bodies but was also conceived in the worst tradition of indirect political capture through “independent persons”.

Then the DP made a credible counter proposal that was agreed in July 2016. It was publicly baptized as the “Hahn-Nuland formula”: Johannes Hahn, then the EU Enlargement Commissioner and Victoria Nuland, then the Assistant Secretary for Europe in the US State Department, were the highest international officials engaged with the Justice Reform who support this proposal.

The vetting bodies posts would be practically split 50/50 between government and opposition; the names had to be chosen from a carefully selected list of candidates. As it often happens in our latitudes then the internationals “persuaded” the government party to accept the proposal. 

 3 – Hahn-Nuland formula fails

One year later, in June 2017, the Democrat MPs returned to Parliament after months long 24/7 protests in front of the Prime Minister’s Office demanding electoral reform. The vote for appointments in the vetting bodies vote awaited them there.

In the filtered lists of candidates, the government’s favorites were galore: close relatives of ministers or MPs, political appointees, persons who run on allied party tickets and so on. The political links of those appointed have been exposed in the meantime by the media. 

Opposition lawmakers, meanwhile, continued to “scan” the lists to find candidates they could trust. In the end, they realized a simple fact: that there was no known and/or trusted person on the list! For unknown, inexplicable and unexplained reasons, during the 12 months (July 2016-June 2017) the DP leaders neglected to encourage eminent jurists close to the opposition to run for a vetting office.

The concern that there were no candidates close to the opposition had been raised in the parliamentary group meeting. But the reaction of the leadership was either silence or common places implying however that they were working on it. So Democrat MPs ended up voting for people they barely knew; their leadership never accounted for their “negligence” it and never held responsibility for failing the institutional responsibility deriving from a hard fought agreement. 

The vetting process suffered the most serious consequences. Undoubtedly it threw out of the judiciary many bad apples. 

However, at the same time, the vetting bodies, with at least 90% by appointed officials close to the ruling party, did what many fear they would do:  presenting insignificant property and financial minuscule issues like incriminating hard evidence they fired people like the renowned professor of constitutional law Xhezair Zaganjori (the Venice Commission draft opinion calls for reconsideration of methods that might “give too much room for political manipulation”; para 111; 6 March 2020 ).

The well-known prosecutor Anton Martini, who had made a name fighting successfully organized criminals met a similar fate. The same happened with prosecutors who dared investigate vote rigging or narco-trafficking by Socialist politicians.

On the other hand some magistrates, known for being Socialist Party loyalists, passed the test despite facts in their files that let other magistrates expelled from the judiciary.

The notorious case of the Tirana prosecutor Imeraj, against whom there was damning evidence, and who nevertheless passed the vetting this June, provoked the first and an unusually strong public statements of condemnation from the international monitors, the EU Delegation and the US Embassy.

However this was a belated reaction. Many saw it as a sign that the abuse, arrogance and a sense of impunity of many vetters went beyond any limit.

4 – Partial recommendation in lieu of an epilogue 

Representatives of the majority have proposed in summer that the vetting bodies term, which is about to expire, should be extended. 

To do this, the Constitution has to be amended, and such a thing can’t be done without the votes of the opposition MPs. I am sure that they consider the proposal as unacceptable. A vote in favour would be as bad as the the votes of the Socialist MPs permitting the National Theater demolition. 

But on the other hand, the vetting must continue and conclude. Hopefully in a fairer manner for the magistrates to be vetted and more useful to a good judiciary. 

Therefore, alternatives should be considered, with ex novo appointments or, as the Constitution foresees, by transferring the vetting powers to the already established judicial and prosecutorial councils.

The lack of a professional, public and comprehensive debate on this case, as well as the silence of the opposition are a major cause for concern.