The Administrative Court of Appeal has decided this week to put Zhaklina Peto, a law professor, back on the list of candidates to the Constitutional Court, after she was excluded from the race by the Justice Appointments Council (KED).
The decision highlights another problem of the justice reform, namely that whilst new special institutions have been formed and are governing the reformed justice system, in particular cases like this one the final verdict is taken by other institutions.
According to the Constitution, the Justice Appointments Council (KED) is the body that evaluates and ranks candidates to members of the Constitutional Court and High Justice Inspectorate (ILD). The Administrative Court of Appeal has shown that it can overturned a KED decision which excludes unfit candidates from running for a seat at the Constitutional Court.
The KED disqualified Ms Peto from the race over issues with her asset declaration. Peto appealed the KED ruling to the Administrative Court of Appeal which overruled the KED verdict and demanded Peto be included in the race for a seat at the Constitutional Court.
The court ruling is final and cannot be challenged. Hence, the KED must implement the verdict and reinstate Peto in the race.
This decision highlights two important problems.
First, it indicates that despite the vetting done by the KED, the final verdict in drawing the candidates list stands with the court. Any decision by the KED can eventually be overturned by the court. Art.238/2 of the Law on Governance Institutions of the Justice System prescribes that court verdicts are final and must be enforced:
“The Administrative Appeal Court shall decide within 7 days from the day of submission of the complaint. Its decision shall be with prejudice and final.”
Second, the court decision to reinstate Peto calls into question the entire vetting process done by the KED. According to the same law, the KED vets candidates from outside the justice system in all three criteria: assets, background and proficiency.
The KED disqualified Peto on the grounds that she did not justify her assets, based on a report by the high Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (ILDKPKI) which stated that Peto had “made an incorrect statement, concealed her assets, and did not justify her income.”
The KED hired an independent expert to verify Ms Peto’s assets and again decided to exclude her candidacy from the race for a seat at the Constitutional Court.
However, the Administrative Court of Appeal overturned the ruling over suspicions that the re-assessment done by the KED was not fair and accurate.
This is not the first time the court overturns a KED verdict. Vasil Bendo was also reinstated in the list of Constitutional Court candidates by an Administrative Court of Appeal verdict.
Moreover, six more former Constitutional Court candidates have appealed KED verdicts that have excluded them from the race.
On the other hand, the court decision on Ms Peto’s case also casts doubts on the Constitutional Court and ILD candidates that were actually qualified by the KED.
The more KED verdicts are overturned by court rulings, the more will standards of the KED assessments and activity change, while rulings of another authority are final.
This contradicts both the spirit of the justice reform and the will to implement it. Furthermore, it casts new doubts on the professionalism of those who drafted the reform, and set up institutions and procedures without assessing the feasibility and potential obstacles during its implementation.
