From: Vincent W.J. van Gerven Oei
Annual Report of (Temporary) KED Shows Desperate State of Justice Reform

The annual report of the (Temporary) Justice Appointments Council (KED) shows how one of the highest councils in the judiciary consistently failed to live up to the standards of the justice reform, starting with its composition.

After President Ilir Meta refused to hold the lottery for the KED because the candidate list was incomplete, Speaker of Parliament Gramoz Ruçi took over the organizing task and installed a self-called “(Temporary) Justice Appointments Council.” It may be clear that nothing in Albanian legislation defines this qualification “(Temporary),” which was used analogously to the title given to former “Temporary” General Prosecutor (and (Temporary) KED member) Arta Marku. Nothing about their actions was temporary, however; they created long-lasting and extremely detrimental effects.

The problems started with the composition of the KED. Because of the dismissals caused by the vetting, one vacancy could not be filled, while Bashkim Dedja was dismissed from his office as judge at the Constitutional Court between his election to the KED and its first session. On June 21, substitute member Gurali Brahimllari was dismissed from office, while on December 10 Fatmir Islamaj was dismissed from office.

How can it be that unvetted magistrates can take part in deliberations about the nominations for the Constitutional Court you may ask? That is just one of the many toxic inconsistencies in the justice reform. And so the KED finished its first “functional” year with 6 out of 9 members.

The annual report also clearly details the chaos that the KED found when it actually started its “temporary” activities: sublegal acts were missing, the lack of any administrative paperwork concerning the Constitutional Court vacancies, and the absence of a sufficient number of supporting personnel or office space. This unworkable situation was not only the result of the failure of the Rama government to provide the right working conditions for the new governance institutions of the judiciary.

The Inception Report of EURALIUS V clearly states (in Activity 1.5.4) that director Agnes Bernhard is responsible for assisting Parliament “in its function to support and monitor the Albanian institutions in the implementation [of] the justice reform.” Considering the fact that it took (in violation of the Constitution and justice reform laws) several years to establish this (Temporary) KED, how could it be that the legal and administrative support was not in place, especially because it was a widely known fact that the Constitutional Court was effectively dead? Why didn’t EURALIUS issue a warning? Why did the EU Delegation in Tirana, otherwise so keen to support the Rama government, not raise the alarm?

What even further exacerbated the situation is the fact that the KED lodges with the High Court, which has been decimated by the justice reform and contains only a single, overdue, and controversial judge: Ardian Dvorani, at the same time the default chair of the KED. The failure of the High Council of Justice to mitigate the vacancies in the High Court thus further weakened the KED, which, not only relies on the High Court for space, personnel, and budget lines, but also needs the High Court to propose candidates for the Constitutional Court. And so, every actor pulls the other down in the rapidly expanding, incapacitating swamp of the reform.

Whereas it is of course in the interest of the Rama government to keep the Constitutional Court dysfunctional as long as possible, the internationals publicly made it their no. 1 priority. So why did they never publicly address the fact that the KED was unable to do a proper job simply on the basis of the material conditions? Only after nearly half a year of struggle, on May 10, did the Council of Ministers decide to give the KED some additional budget to work with!

The Temporary KED itself states that the task in front of it – reestablishing the Constitutional Court – was “completely unforeseen before and extraordinary.” And later:

Because of the consequent and rapid creation of vacancies at the Constitutional Court and their announcement according to the law by the nominating organs, on top of the High Judicial Inspector, and also because of previous dysfunction, the (Temporary) KED elected for 2019 finds itself confronted with a situation that goes beyond the constitutional and legal provisions for the organization of this constitutional organ, as ad hoc collegial part-time organ, where its members at the same time also fulfill other judiciary and constitutional functions, without budget, infrastructure, and personnel of the Council itself, like the other constitutional institutions and the public administration.

And toward the end:

This Council […] had an extraordinary workload, not envisioned and beyond the motives of the authors of the Constitution […].

What does this mean? That the obliteration of the Constitutional Court was not the “plan” of the justice reform? Time and again both government officials and internationals express forms of surprise about the destructive effects of the vetting on the judiciary, as if none of this could have been foreseen when the legislation was drafted by the best and brightest of EU-sponsored legal experts. There are two explanations: Either the justice reform was badly drafted because it failed to take into account to complete collapse of a functional judiciary, or everyone involved knew this could happen, and hid it from public opinion to be able to pass the reform. So either they are incompetent, or they are lying. Most likely, unfortunately for the people of Albania, they are both.

The remainder of the report is dedicated to discussing the election procedures for the new members of the Constitutional Court and the High Justice Inspector. As regards the Constitutional Court, the report undermines several of the government narratives spun around the elections.

First of all, the KED report appears to supports President Ilir Meta’s arguments that Parliament should not have elected Constitutional Court judges from lists containing less than 3 candidates. The KED clearly states that “according to the Constitution a minimal number of 3 candidates to be selected by the nominating organ is required,” and that based on that rule it had asked the President to reannounce one of the vacancies. The Parliament’s election of Elsa Toska and Fiona Papajorgji from lists that contained less than three candidates is therefore, according to the KED itself, in violation of the Constitution.

The KED nevertheless glosses over most of the constitutional crisis caused by the President’s insistence that members are elected according to the order established in the Constitution and the Constitutional Court Law, and ignores the fact that by sending the President and Parliament their candidate lists at different time while skipping over the High Court, it potentially violated the Constitution. The KED gives no further arguments to support its actions besides stating that it delivered the reports as required by law.

While the report does not discuss the final battle between Parliament and President about the nomination of Marsida Xhaferllari and the “fake” oath taken by Arta Vorpsi in front of a notary in Tirana, it does undermine its own chair, Ardian Dvorani, who claimed publicly that Arta Vorpsi had legally become member of the Constitutional Court. On the basis of these statements, President Meta later filed charges against Dvorani. The Prosecution Office, however, dropped the case.

The final score of the (Temporary) Justice Appointments Council of 2019 is desperate: no functional Constitutional Court and no functional High Justice Inspectorate, despite all the promises, prayers, and wishes of the internationals. In late 2019, the Constitutional Court had 5 members, 1 below the legally necessary quorum to pass verdicts on cases, but the dismissal of Besnik Muçi (who was elected to the highest court of the country even though he was not vetted!) brought the number back to 4, one of which, Vitore Tusha, is already overstaying her legal mandate (just like KED chair Dvorani) and needs to be replaced.

In December, President Meta elected a new KED for 2020, with the same chair, Dvorani. This time, the KED is complete, because Parliament, without opposition consensus, changed the Status Law so that members not only don’t need to vetted, but also don’t need to have finished the School of Magistrates. So all in all this bodes well for the new year!