From: Vincent W.J. van Gerven Oei
Helsinki Committee: ONM Violates Constitution with Dissenting Opinion in Sevdari Case

Only recently, chief of the International Monitoring Operation (ONM) Genoveva Ruiz Calavera stated that any criticism of the work of the vetting institutions and the ONM is a “confirmation that the vetting is shaking the foundations of a corrupt system.” However, this criticism is also now coming increasingly from neutral and impartial observers such as the Albanian Helsinki Committee (KShH), that have a big stake in a functional legal system and rule of law.

In a recent legal opinion, KShH director Erida Skëndaj argues that a “dissenting opinion” sent to the Special Appeal Chamber (KPA) by ONM observer Ferdinando Buatier de Mongeot oversteps the boundaries set by the Constitution on the role of the ONM. This dissenting opinion concerns the verdict of the KPA to overturn the confirmation of High Prosecutorial Council (KLP) Antoneta Sevdari and dismiss her from office. The KPA’s verdict was dated February 28, 2019. The ONM’s dissenting opinion sent on April 25, 2019.

Skëndaj argues that by providing this dissenting opinion after the KPA’s verdict, the ONM has overstepped its Constitutional boundaries. According to the Constitutional Annex art. B(3), the ONM’s role in the vetting process is defined as follows:

b. They are entitled to file findings and opinions on issues examined by the [Independent Qualification] Commission and the Appeal Chamber and contribute to the background assessment regulated in Article DH. In those findings, the International Observers may request that the Commission or the Appeal Chamber consider evidence or may present evidence obtained from state bodies, foreign entities or private persons, in accordance with the law;

c. they are entitled to submit a written recommendation to the Public Commissioners to file an appeal. If the latter decides not to follow this recommendation, the Public Commissioner is required to issue a written report giving the reasons for the refusal;

ç. they are entitled to have immediate access to all information, data on persons and documents necessary to monitor the re-evaluation process at all levels and in all stages.

The ONM is thus allowed to request the vetting institutions to consider certain evidence, and to issue recommendations to the Public Commissioners. The ONM has so far fulfilled both roles during the vetting process. However, there is no article in the Constitution that gives the ONM the right to issue a “Dissenting Opinion” as if it were part of the panel judges evaluating a case. The Constitution also doesn’t give the right to the ONM to issue an opinion after a case has received a final verdict, such as in Sevdari’s appeal at the KPA.

Indeed, the Vetting law, art. 55(5) states that ONM observers “are entitled to write a dissenting opinion which shall accompany the final decision.” However, Skëndaj argues that this only applies to decisions of the KPK (referred to the “Commission” in art. 55), and not the KPA. In the case of a dissenting opinion by the ONM at the level of the KPK, it can be used by the Public Commissioner to appeal that case at the KPA. The KPA, however, has the final word in the vetting process as no other legal recourse is possible except the Strasbourg Court.

As a result, Skëndaj concludes:

Because of all the arguments provided above, it is my opinion that the dissenting opinion presented by the ONM observer about the KPA verdict concerning the Sevdari case surpasses the attributes determined in art. B of the Constitutional Annex.

Moreover, in the present case or other similar precedents in the future […], the dissenting opinion would create the conditions to favor subjects in their proceedings at the Strasbourg Court. This could shake the trust in the objectivity of a very important international watchdog and observation mechanism such as the ONM, which according to its Constitutional duties contributes to the increase of responsibility and neutrality of the vetting process of judges and prosecutors in the Republic of Albania.

The fact that the ONM has overstepped its Constitutional boundaries and has come to the aid of a specific magistrate after the KPA has issued its final verdict not only undermines the credibility of the vetting institutions and the vetting process as a whole; it also politicizes the role of the ONM and damages its credibility as neutral arbiter, because it basically openly rejects a final verdict by the KPA.

It would suit the ONM to reply to the legal arguments presented by the Albanian Helsinki Committee, and take away any doubt about its understanding of its Constitutional role within the vetting process.

Exit has reached out to the ONM for a response.