From: Vincent W.J. van Gerven Oei
Comment: Dvorani Case Shows That the Judiciary Has Squandered Its Independence to Unelected Bureaucrats

The main promise of the Justice Reform, started in 2016, was an independent judiciary. This independence would be guaranteed by the establishment of new, autonomous governance bodies of the judiciary: the High Judicial Council, the High Prosecutorial Council, the Justice Appointments Council, and the High Justice Inspectorate.

Together these institutions would be elected by and govern the judiciary in Albania. The Constitutional Court would be in place as the highest arbiter with the right to interpret the Constitution, including the Constitutional Annex that stipulates the outlines for the implementation of the Justice Reform.

But the recent decision of the High Judicial Council (KLGj) to revert to the internationals for an opinion on which only the Constitutional Court should have a say shows that rather than creating independence, the Justice Reform has created a lethal dependence of the Albanian judiciary on the internationals.

The case appears rather straightforward. The mandate of Ardian Dvorani, the current president of the High Court and chair of the Justice Appointments Council (KED), ended in February 2014, but through a loophole in the Justice Reform legislation, he was able to remain on his post until today.

Being one of the two High Court judges to “survive” the vetting (under questionable circumstances), he became vital to both the High Court and KED and made himself “irreplaceable,” despite a Constitutional Court decision that his mandate had ended.

Dvorani, who was prosecutor under the dictatorship and as such should have never been either in the High Court or the KED, used this power to speed up the Justice Reform under the pressure of the Socialist government and the international partners.

This resulted in counterintuitive proposals such as skipping the vetting for candidates for the Constitutional Court. As chair of KED, he personally started a battle with President Ilir Meta over the election procedure for new Constitutional Court judges, escalating the situation until what should have been a solemn moment – the establishment of the new Constitutional Court – turned into a mudslinging contest.

In an interim opinion, the Venice Commission took the side of President Meta. The final opinion was conveniently delayed until after the EU would promise the opening of accession negotiations.

The next part in this drama was the election of new members of the High Court, which suffers from a debilitating backlog of more than 30,000 cases.

In March, President Meta appointed the first three new judges to the High Court after a selection procedure led by the KLGj. As Dvorani’s term at the High Court had ended in 2014, he should have been replaced immediately, as per art. 136(5) of the Constitution: “The High Court judge shall stay in office until the appointment of the successor.”

In April, President Meta requested the KLGj to end Dvorani’s mandate, who, being the President of the High Court, refused to declare the end of his own mandate. The KLGj, in return, claims that it has no power to do so, while at the same time confirming that none of the recently appointed High Court judges has “replaced” Dvorani.

In other words, we are dealing here with two issues for the Constitutional Court, namely: 1) what is the precise definition of “successor” in Constitution art. 136(5); and 2) what should be done if the High Court refuses to announce the end of a mandate of a judge whose mandate has ended according to the Constitution?

As regards issue no. 2, there is an interesting precedent. In 2017, the High Prosecutorial Council (KLP) was unable to announce the end of the mandate of the General Prosecutor Adriatik Llalla because it did not yet exist. Despite the lack of a formal announcement of the end of his term, Llalla was quickly replaced by Arta Marku via a thoroughly unconstitutional process cooked up by EURALIUS and OPDAT. It is interesting that this time Prime Minister Rama is not loudly demanding the replacement of Dvorani just like he agitated against Llalla in 2017.

Issue no. 1 is a bit more complicated. The composition of the High Court had changed in the years leading up to the Justice Reform, but this change was never fully implemented due to conflicts between then-President Bujar Nishani and the Rama government. As a result, the High Court was already incomplete before the vetting started, and nearly empty by the end of it.

This makes it difficult to establish which new judge is the “successor” of which former judge. This unclarity now allows Dvorani to stay in his place by claiming that none of the three newly appointed judges actually replaces him.

Asked for his opinion on his own dismissal by the KLGj, Dvorani proceeded to actually question the constitutionality of the appointment of the three new judges, thus providing himself with even more potential reasons to stay in power as one of the most influential magistrates in Albania.

Rather than offering this case to the Constitutional Court, which now has a quorum to accept new cases, the KLGj has apparently decided to ask the “internationals” for an opinion on the matter – the same internationals who have collaborated intensively with Dvorani to speedily (and shoddily) implement the Justice Reform for nearly 5 years.

Only the Constitutional Court has the right to interpret the Constitution. The opinions of neither EU justice assistance mission EURALIUS nor the OPDAT mission of the US Department of Justice carry any legal weight in the context of the Albanian judiciary, and moreover these opinions are not part of the public record.

The secrecy surrounding these opinions is in fact so great, that the European Commission (and therefore the EU Delegation in Tirana) even claim to know nothing about them.

If the KLGj has indeed turned to the internationals rather than to the Constitutional Court of Albania, it should be clear to all that the independence promised by the Justice Reform has turned out to be a big lie.

Rather than being impartial, independent, and non-politicized, the Albanian judiciary system has been captured by unelected bureaucrats beyond public scrutiny, whose links to the political and oligarchic class of Albania remain undefined and therefore vulnerable to the most miserable forms of corruption.