From: Vincent W.J. van Gerven Oei
EURALIUS Expert and Constitutional Court Candidate Klodian Rado Advises KLGj to Violate Constitution

In what ought to be called out widely and loudly a case of flagrant and unacceptable conflict of interest, EURALIUS V expert Klodian Rado has advised the High Judicial Council (KLGj) to circumvent the Constitution by “temporarily” delegating judges to the non-functional High Court. Rado is at the same time candidate for the Constitutional Court and High Inspectorate of Justice (ILD), and his candidacy is currently evaluated by the Justice Appointments Council (KED). The High Court elects 3 members of the Constitutional Court based on the advice of the KED.

Exit was able to inspect a confidential document called “Legal opinion: About the emergency situation at the High Court,” drafted on May 29, 2019 by EURALIUS experts Grzegorz Borkowski and Klodian Rado. According to his LinkedIn, Rado is a “Senior Legal Expert at EURALIUS, EU.”

This in itself is a distortion of the truth, as EURALIUS is merely funded by the EU as justice assistance mission, and does not represent the EU. The legal opinion states this clearly: “The thoughts expressed in [this document] do not necessarily reflect the official opinion of the European Union.”

This legal opinion follows an argument similar to the one used by EURALIUS to justify the election of “Temporary” General Prosecutor Arta Marku by a regular majority in Parliament without being vetted.

The Constitution sets clear standards and procedures to the election of judges to the High Court. The 13 members are proposed by the KLGj from the ranks of judges with more than 13 years of experience (10) and lawyers, professors, and high-level civil servants (3). They are subsequently decreed by the President.

However, the KLGj has not yet approved the legal framework to nominate judges to the High Court, “because of other emergency actions.” The only logical conclusion that can derive from this is that the KLGj needs to prioritize approving the legal framework, so that it can then propose High Court judges following the stipulations of the Constitution.

However, Rado and his colleague propose something completely different, an open violation of the Constitution, simply because “EURALIUS is aware that to keep at least a minimum of functionality of the High Court, it is necessary that other temporary measures are taken.”

“Functionality” is not a category in the Constitution, and since when is “a minimum of functionality” something that EURALIUS cares about? EURALIUS has been happy to advise courses of action that have led to a complete degradation of the Albanian justice system without batting an eye, and now it is suddenly concerned about the rule of law?

EURALIUS actively helped the destruction of the office of the General Prosecutor, advised on legal frameworks that are inherently contradictory (more on that in follow-up articles), and has systematically blocked any form of public scrutiny of its actions. And now we are to believe it is concerned about a “a minimum of functionality”?

Solution 1: Status Law art. 45

The solution proposed by EURALIUS is to fully bypass the President, by relying on Law 96/2016 on the Status of Judges and Prosecutors art. 45, which deals with the so-called “mobility scheme” allowing judges “from all levels with at least one year experience in the function may apply for secondments to a position in a mobility scheme established at the [KLGJ]” for a period no longer than 5 years.

The KLGj may then “assign a magistrate in the mobility scheme to any position of the same level or any other level, for which the magistrate meets the requirements.” In other words, EURALIUS suggests to elect “temporary” High Court judges for 5 years without Presidential approval.

The problem is that even though the KLGJ has opened several applications for the “mobility scheme,” only a few judges applied, and none were approved by the KLGJ. But EURALIUS suggests that “many judges would be interested to serve in the mobility scheme with the aim of being appointed temporarily to the High Court.”

Rado even suggests that “with the aim to avoid the perception of nepotism, the KLGj may consider announcing several objective requirements that could have an added value for the candidates that will be determined at the High Court in the mobility scheme, such as to have passed the vetting process (even though that is not a precondition or legal requirement for the mobility scheme).”

Of course, the “perception of nepotism” should be avoided, but not nepotism itself!

Solution 2: Status Law art. 46

In case there are no qualifying judges available through the mobility scheme of art. 45, EURALIUS proposes that the KLGj can deploy Status Law art. 46, which allows the KLGj to “request” a judge to “consent” to a temporary promotion.

The upside of using art. 46 is that no public call for applications is necessary, no further evaluation, no vetting, nothing. The KLGj simply requests a judge of its preference to be temporarily promoted to the High Court. Art. 46 is useful in this case precisely because it is unspecific (i.e. badly defined), as Rado himself concedes: “the provisions for temporary transfer appear to be of an amorphous nature (unstructured).”

In other words, EURALIUS is arguing for the exploitation of loopholes in a badly drafted law, which allows a random elevation of a First Instance judge to the High Court simply because the KLGj desires so, in order to circumvent the cumbersome provisions of the Constitution.

EURALIUS concludes:

With the aim of passing through a transitory period, while the process of installing and nominating at the High Court still hasn’t finished, the KLGj can consider to use the mobility scheme and the appointment of temporary judges at the High Court. Besides this, if there are no appropriate magistrates in the mobility scheme that fulfill the conditions for the High Court, then a reference to Status Law art. 46 would be reasonable and possible, by transferring for a temporary period, and with their consent, judges with a very good professional performance to the High Court.

Especially this last sentence is nonsense. First of all, judges would be “promoted,” not “transferred,” to the High Court, since transfers are lateral movements.

Second, “very good professional performance” is not a qualifying element according to the Status Law. Judges must fulfil “the criteria for being transferred or promoted to the respective structure,” which in case of the High Court means that they have “assumed the function not less than 13 years in a lower instance, out of which at least five years in the area of law relevant for the vacant position, including the experience as seconded magistrate” (art. 47(5)).

What is so scandalous about this line of reasoning is that it takes legislation that was meant to function properly after the transitory period of the vetting had been completed, and applies it to the transitory period. This allows “dirty” magistrates to rise easily to the highest ranks of the justice system, while the vetting drags on for another 8 years. It simply replaces one corrupt elite with another one.

By even suggesting that non-vetted judges could be “temporarily” delegated (for up to 5 years!) to the High Court simply to fix a perceived “emergency,” Rado shows he understands nothing about the underlying motivation of the justice reform. The entire idea was to vet the judiciary top–down, so that the installation of the justice governance institutions and all subsequent personnel decision would be taken by magistrates vetted through a two-tier process.

We already know that this objective has not been reached for the KLP and KED, both of which contain members that have not yet been vetted. Rado now proposes a similarly destructive approach to the High Court, and we have all reason to believe that the Constitutional Court candidates will be proposed before they have passed the vetting process completely.

But what is perhaps the worst about the situation is that this legal opinion helps the KLGj, and by extension the Albanian government and the EU Delegation, clean up the mess created by the justice reform, which has had repercussions far beyond the wildest imaginations of the eurocrats who came up with it. And this “help” is offered by precisely a person that will be evaluated by the KED on his qualifications to sit in the Constitutional Court or become the High Justice Inspector.

Again, the timing of Rado’s “opinion” is itself suspicious. The previous controversial legal opinion issued by EURALIUS, also of great help during another self-inflicted “emergency,” was issued precisely at the moment when the consortium of EURALIUS IV was involved in a tender to win EURALIUS V. Which, of course, they did, courtesy of then EU Ambassador Romana Vlahutin. We should not be surprised if Rado will turn up high on the KED’s list of candidates for the Constitutional Court, after which he can retroactively approve his own legal opinions.

In any regular EU country, as soon as Rado applied to become a candidate for the Constitutional or ILD, he would have resigned from EURALIUS. But in Albania, he is allowed to play a role that is thoroughly detrimental to the reform, by undermining the authority and credibility of the highest bodies of the judiciary simply because EURALIUS wants to fix “an emergency” of its own creation before the new European Commission is nominated.

Furthermore, Rado’s incentive to write this legal opinion is not simply to provide quality legal advice in the role of independent expert. His incentive is to write a legal opinion that will please the KLGj and the government, which will give him a better chance of being elected to the Constitutional Court.

Not only should Rado’s behavior disqualify him from ever coming close to an official function within the “reformed” judiciary, it should lead to an immediate Parliamentary inquiry in the other conflicts of interest between EURALIUS and the independent judiciary governance institutions.