While the internationals chase after a symbolic and largely meaningless end-of-the-year deadline for the establishment of a partial Constitutional Court, egging each other on with motivational tweets, the European Court of Human Rights (ECtHR) and the Special Anti-Corruption Court have recently published two verdicts which combined will have a devastating effect on the vetting and Justice Reform.
On December 1, 2020, the Special Anti-Corruption Court sentenced Special Appeals Chamber (KPA) judge Luan Daci to 12 months probation on account of falsifying documents. Daci had lied about his dismissal from office in the process of applying for his position at the KPA, the highest vetting body, omitting it from his CV. As I explained before, the irregular appointment of Daci to the KPA is a key point in the case filed by former prosecutor Antoneta Sevdari at the ECtHR against her dismissal by the vetting, because this irregularity violates article 6.1 of the European Convention on Human Rights, namely the right to an impartial tribunal established by law.
Even though Daci is going to appeal the verdict, reported statements made by his lawyer Jordan Daci suggest that he accepts that he was fired, but that this does not constitute falsification of documents. Whatever the outcome of the appeal, therefore, it now seems a well established fact that Daci was appointed in violation of Vetting Law art. 6(1)(dh), which states that “Member of the Commission and judge of the Appeal Chamber shall be appointed the Albanian citizen who fulfils the following conditions: […] Has not been subject to the disciplinary measures of dismissal or any other disciplinary measure in force under the law at the time of application.”
When in the spring the allegations against Daci gained such prominence in the media that they could no longer be simply ignored, EU bureaucrats such as International Monitoring Mission (ONM) director Genoveva Ruiz Calavera claimed that concerns that the case against Daci would undermine the Justice Reform were merely “attacks,” displaying a siege mentality that appears to have become the norm:
There is no ground for putting in question the fundamentals of the reform process, however difficult and, yes, at times challenging it may be […] in the current crucial phase for the progress of the country on the European integration path, this reform must not be undermined by various attacks. This is not a time to derail the reform and its many achievements to date.
ONM observer Theo Jacobs openly attacked SPAK for its investigation of Daci, while the EU Delegation claimed that “the decisions taken by the Appeal Chamber [of which Judge Daci is a member] have been adopted on the basis of a collegial decision making mechanism, by an appeal college consisting of five members and therefore not dependent on a single individual.”
However, on the same date, December 1, the Grand Chamber of the ECtHR reached a unanimous verdict in the case of Guðmundur Andri Ástráðsson v. Iceland, which found that an Icelandic Court of Appeal did not qualify as “‘a tribunal established by law’, on account of irregularities in the appointment of one of the judges who heard his case.” With one fell swoop the ECtHR has thus relegated the EU Delegation’s opinion to the garbage bin of jurisprudence.
In its verdict, the Grand Chamber Judgment established a “three-step test to determine whether irregularities in a judicial appointment procedure were so serious that they entailed a violation of the right to a tribunal established by law.” Let us review this test in light of Daci’s irregular appointment and the case brought to the ECtHR by Antoneta Sevdari.
Step 1: Whether there has been a manifest breach of domestic law
Step 2: Whether breaches of domestic law pertained to any fundamental rule of the judicial appointment procedure
Both steps have been confirmed by the verdict of the Special Ani-Corruption Court. Daci was convicted for falsification of documents pertaining to his appointment procedure as judge at the KPA. Daci had been fired as judge on December 24, 1997, and therefore his appointment was a violation of art. 6(1)(dh) of the Vetting Law. Moreover, Daci himself appears to confirm that he was fired and therefore was appointed in violation of the law. He only appears to contest that he falsified documents by omission.
Step 3: Whether the alleged violations of the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts
In the case of Antoneta Sevdari, the short answer here is no. The KPA refused to consider her complaint, as did the ONM. In absence of any other domestic judicial body that could review her case, Sevdari turned to the ECtHR, where her case is currently pending. Considering the crystal-clear verdict in Guðmundur Andri Ástráðsson v. Iceland, her case is stronger than ever.
In its earlier March 12, 2019 Chamber judgment in Guðmundur Andri Ástráðsson v. Iceland, the ECtHR already established that “it is not only essential that judges are independent and impartial, but also that the procedure for their appointment appears to be so. It is for that reason that the rules for the appointment of a judge must be strictly adhered to. Otherwise, the confidence of litigants and the public in the independence and impartiality of the courts might be eroded […].”
It is this erosion of public confidence in the independence and impartiality of the justice system that sadly has become one of the main results of the Justice Reform. Trust in the success of the reform has dropped several years in a row, with in 2019 only 32% of Albanians believing that the reform is being properly implemented. The internationals, with their insistent rejection and negligence of the fundamental flaws of the reform they helped to design, contribute actively to this lack of trust with each social media post they send into the world. Their attitude, moreover, poses a severe threat to that which they claim to champion, the rule of law, because it values implementation at all cost over proper legislation, checks and balances, and fundamental human rights.
The ECtHR Chamber judgment in Guðmundur Andri Ástráðsson v. Iceland ended with the following, poignantly ironic words, which are worth quoting in full:
The present judgment will also have consequences for States other than the respondent State. The question will undoubtedly arise whether and to what extent court decisions can be challenged on the basis of a flaw in the procedure for appointing a judge to sit on the bench, a flaw which may have occurred a long time before the case arrived before that judge. May we predict that this is an issue that, sooner rather than later, will return to the Court, in the framework either of its contentious jurisdiction or of its newly acquired advisory jurisdiction?
Indeed, this moment will come sooner than later. And when it comes, neither the Albanian goverment, the vetting institutions, nor the internationals will have anywhere to hide the scandalous, botched reform that they have forced upon the Albanian people.
