From: Vincent W.J. van Gerven Oei
EU Ambassador Soreca: KLP and KLGj Will Be Formed Next Week – A Risky Proposition

EU Ambassador Luigi Soreca announced that the members from the magistrature for the High Judicial Council (KLGj) and High Prosecutorial Council (KLP) will be elected next week. In a tweet, Soreca stated: “We are now looking forward to next week when the General Assemblies of Judges and Prosecutors will meet to set up the [KLP] and the [KLGj].”

On November 27, the last candidate to be vetted, Besnik Cani, was confirmed by the Independent Qualification Commission (KPK). According to the transitory dispositions of law 115/2016 “On the Governance Institutions of the Justice System,” art. 276(3) and art. 279(5) the KPK must send within 3 days after the “completion of the re-evaluation process” a list of candidates to the High Court and General Prosecutor respectively, who organize the General Meeting at which the final members will be chosen.

However, the notion of “re-evaluation process” in the Governance Law is in conflict with Law 84/2016, the Vetting Law, in which “re-evaluation process” is clearly defined as comprising both the vetting by the KPK and the Special Appeals Chamber (KPA). The same holds for Constitution Annex art. ç, which implies re-evaluation includes both the KPK and KPA. In other words, the vetting of KLP and KLGj member is only “complete” once the KPA has passed a verdict in all the pending appeals cases. This has also been my assumption in previous writings.

The Governance Law, which was passed with the sole votes of the Socialist Majority, therefore contradicts the definition of re-evaluation or vetting in both the Vetting Law and the Constitution, which were passed with qualified majorities. This is yet again a legal issue – the result of incompetent lawmaking and even more incompetent international “expertise” – that can only be resolved by the Constitutional Court – which does not exist.

The position taken here by the EU Ambassador is therefore contentious, to say the least. In fact, his statement assumes that the appeals process of the KPA is of no relevance to the vetting process, a mere afterthought that is not important in the view of the “urgency” to establish the KLP and KLGj (and start EU accession negotiations).

This is a very dangerous situation, as it means that should the KPA overturn a KPK confirmation of a KLGj or KLP member after they have been formed, such a member should be suspended. However, only the Constitutional Court can suspend members of the KLP and KLGj – and the Constitutional Court does not exist.

At the same time, should the KPA overturn a KPK dismissal of a KLGj or KLP candidate after they have been formed, these candidates have been deprived of the possibility to be part of this institution, in violation of their legal rights.

In other words, by effectively cutting short the vetting of KLP and KLGj members, the current course of action risks the installation of two crucial governance institutions whose members have not been completely vetted, with potentially disastrous results.

The stakes are considerable. Currently, the KPA is reviewing the confirmation of KLGj candidates Alma Brati, Astrit Faqolli, and Nertina Kosova. Meanwhile, KLGj candidates Artan Lazaj, Artan Zeneli, and Bledar Abdullai have appealed their dismissal. For the KLP, the Public Commissioner appealed the confirmation of Antoneta Sevdari, while Luan Kaloçi, Adriatik Cama, and Elsion Sadiku have filed an appeal against their dismissal by the KPK.

Furthermore, the KPK decisions concerning Ramadan Troci, Shpëtim Kurti, Luan Dervishi, and Besnik Cani have not yet been published, which means that even more appeals are a possibility.

To convene the General Meetings to elect the magistrate members of KLP and KLGj next week is not only legally a questionable course of action (a question that is currently impossible to resolve). By choosing this path, apparently under the cheers of the dimwitted EU representatives that continue to favor short-term political gains over the establishment of the rule of law, there is a serious risk of  installing two institutions with members who have not fully passed the re-evaluation procedure. By doing so, the EU Ambassador has put the success of the justice reform – if we still dare to speak of a possible “success” – even more at risk.