From: Vincent W.J. van Gerven Oei
Brutal Venice Commission Report Eviscerates Dvorani’s KED Decisions

It is not on a daily basis that one reads Venice Commission reports as critical as draft opinion no. 978/2020 “On the Appointment of Judges to the Constitutional Court,” the result of two separate requests by Speaker of Parliament Gramoz Ruçi and President Ilir Meta.

Although the impetus of the opinion was the appointment procedure of Constitutional Court judges, which led to a protracted fight between President Meta on one side and the Socialist-Party dominated Parliament and the Justice Appointments Council (KED) led by Ardian Dvorani on the other, not only does the Venice Commission fully side with the decisions of President Meta, it also severely criticizes the implementation of the Justice Reform so far and the KED’s actions in particular.

The Justice Reform as threat to human rights

With regard to the vetting, the Venice Commission basically states (paragraph 83) that part of the process seems to be unregulated by law, implying a violation of the principles of a fair trial, which is a fundamental human right:

In Tirana, the delegation learned that difficulties were sometimes incurred into, having to provide justification for long-past revenues of spouses. It was also alleged that there was an overly rigid application of very short (two weeks) procedural deadlines, although in some cases certified documents had to be obtained from abroad. According to the EU Commission, derogations were granted upon request “most of the time”, although the Venice Commission does not know on which legal basis. Furthermore, it seemed to be unclear on the basis of which criteria some decisions of the Independent Qualification Commission were appealed to the Appeal Chamber by the Public Commissioner and others not.

The Venice Commission further provides evidence for other severe human rights violations that are the result of the vacancies in the High Court (par. 88):

The Commission wishes to stress in addition that the absence of the High Court may be even more critical for the stability of Albania than the absence of the Constitutional Court. Cases from lower courts cannot be decided and Albania systematically violates the right to a fair trial within a reasonable time. In the absence of any other remedy, this is likely to lead to numerous cases ending up before the European Court of Human Rights.

Moreover, the Commission found that while the Justice Reform is now posing a severe threat to fundamental human rights in Albania, it also fails to deliver on one of the main promises of the reform, namely an independent and professional judiciary, as the “adverse effects” of the vetting have resulted in “discourag[ing] people from applying for positions in the judiciary” (par. 79).

Direct criticism of the KED and Dvorani’s decisions

The Venice Commission further eviscerates several of the controversial decisions taken by the KED under the chairmanship of Dvorani.

In July 2019, under severe pressure of the Rama government, Dvorani declared that the KED would skip the vetting of Constitutional Court candidates, contravening against a fundamental principle of the Justice Reform. This resulted eventually in the appointment of Besnik Muçi to the Constitutional Court and his subsequent dismissal after he didn’t pass the vetting.

The opinion of the Venice Commission openly criticizes Dvorani’s decision, which was, no doubt, based on EURALIUS’s “expert” advice (par. 85):

In any case, there can be no doubt that members of the Constitutional Court must pass the vetting and that the [KED] should propose only candidates who have passed the vetting procedure.

Dvorani was also at the center of the controversy surrounding the appointment of Constitutional Court judges earlier this year, for it was his decision to send President Ilir Meta two candidate lists even though the President, according to the Constitution, could only nominate one judge at the time. It was also KED’s claim that Arta Vorpsi was elected by default after the President refused to nominate a second judge, with the latter citing the rotation enshrined in the Constitution and the Law on the Constitutional Court.

It should be stressed that according to Prime Minister Edi Rama, the internationals – EURALIUS and OPDAT – sided with Dvorani and parliament against the president.

But now the Venice Commission, hailed by all sides as a neutral and competent arbiter, judges very much otherwise.

First of all, the opinion doubts whether the KED was fully qualified to make any decisions on the ranking of the candidates for the Constitutional Court, because not all of its members had been vetted (par. 90):

[T]he [KED] was a dysfunctional institution since the very beginning, […] the lack of vetting of its other members deprived the [KED] of its credibility, so that its suitability to rank candidates was called into question. It seems crucial to the Venice Commission that the current and future members of the [KED] should be submitted to a swift vetting procedure (if they have not yet been vetted).

Furthermore, the opinion states that the KED under the chairmanship of Dvorani “did not work in a transparent manner” by unconstitutionally excluding the National Ombudsman from its proceedings:

91. Transparency is crucial to create public trust in the appointment procedure, hence in the Constitutional Court. Yet, the [KED] disregarded the constitutionally mandatory presence of the People’s Advocate as an observer in the selection by lot, as well as in the meetings and operations of the [KED] (Articles 149/d (3) and 179 (11) of the Constitution).

Thus the Venice Commission vindicates National Ombudsman Erinda Ballanca, who already complained about this unconstitutional state of affairs back in 2019 – to the deafening silence of the internationals.

As regards the Constitutional Court nomination procedure mess-up that stands at the origin of its report, the Venice Commission notes that “the [KED’s] timing of the transmission of the lists of ranked candidates to the President and to the Assembly […] caused a major procedural incident.” This timing, the Venice Commission has found, was not decided by the KED in a collegial manner, but seems to have been the sole decision of KED chair Dvorani:

93. In reply to the question by the delegation of the Venice Commission, why he sent the lists to the Assembly six days later than those sent to the President, the Chair of the [KED] replied that the preparation of the full files that were sent together with the lists took longer. This modus operandi was not discussed in [KED]. The Venice Commission is not in a position to examine whether the explanation given is plausible. In any case, it should have been clear that the date of sending out the lists would have important consequences because of the potential application of the appointment by default on the basis of the 30-days rule.

Then, when it comes to the composition of the candidate lists – another point of contention between President and Parliament – the Venice Commission clearly states that the candidate list for each position should at leat contain three members: “each vacancy list should be autonomous from the others, and count at least three candidates (different from the three candidates of the lists of the other appointing authority)” (par. 97), thus again vindicating President Meta’s arguments from November 2019, and undermining the Parliament’s calls for his impeachment:

In these conditions, as well as in view of the fact that overlapping procedures have not been explicitly regulated, it does not seem unreasonable for the President to deem to have to respect the order of the sequence also for the actual choice of the candidate: if the sequence exists, it must have a bearing on the order of appointment from a single list. Furthermore, in such a situation the appointment by one authority has a direct bearing on the appointments of the other authority as it changes the composition of the list of candidates at the disposal of the respective appointing body. Furthermore, had the President chosen two candidates, the Assembly would have disposed of a list of less than the minimum three candidates required by the Constitution. Reservations on account of this perspective do not seem unjustified. The President’s conduct in this respect does not therefore appear to justify his impeachment.

Furthermore, the Venice Commission supports President Meta’s decision to pause the nomination procedure for his second candidate and refuse the “default candidate” Arta Vorpsi catapulted by Dvorani and Parliament: “It therefore seems justified that the President refused to take the oath of the judge allegedly appointed by default” (para. 99), and that Vorpsi’s “oath” in front of a Tirana notary had no legal value:

100. The Venice Commission notes that Article 129 of the Constitution provides that a judge of the Constitutional Court begins his/her duty after taking the oath before the President of the Republic (emphasis added). […] While it is unclear if this is a purely formal requirement or if it implies the competence for the President to control if the rules in appointing/electing have been applied correctly, it is clear that taking the oath before the President is a precondition for taking up office.

Finally, the Venice Commission rejects the legal changes adopted by Parliament removing the constitutional competence of oath-taking from the President:

107. If deemed necessary for avoiding a stalemate in clear cases of abuse, the recently adopted but not yet enacted provisions on a default mechanism for taking the oath should be replaced by a more clearly formulated provision to be adopted at the constitutional level.

The Venice Commission draft opinion thus fully vindicates the actions of President Meta and the legal arguments he provided for them, while voicing severe criticism of the procedure adopted by the KED under chairmanship of Ardian Dvorani and the legal changes adopted by Parliament at the instigation of Speaker Gramoz Ruçi.

Based on the opinion of the Venice Commission, there seems to be ample evidence that Dvorani indeed committed abuse of office. A case of President Meta against Dvorani currently lies with SPAK, while Dvorani himself still successfully seems to hold to his High Court seat and KED chairmanship, despite the end of his mandate in 2014.