The current deadlock in the election of the High Prosecutorial Council (KLP) member from civil society risks resulting in a complete standstill of the judicial reform.
This appears to be the conclusion of the Civil Society Ad-Hoc Commission, which had been charged to manage the election of three suitable candidates for the KLP representing civil society.
In a detailed press statement, the Commission declared that so far there had five public calls for civil society candidates. Eleven candidates in total applied, but ten were immediately disqualified based on the Constitutional criteria imposed on the post. The reason for these disqualifications were the following two criteria:
- The candidate should have 15 years experience as a lawyer;
- The candidate should be able to provide concrete proof of engagement with civil society, and have an excellent social profile, high moral integrity, and justify their assets.
The Commission further announced that on November 30, the sixth open call was published. Nonetheless, it seems pessimistic about the results, especially because of the criterion of the 15 years experience. Three qualifying candidates are needed for Parliament to make its selection.
The KLP is key for the judicial reform
The KLP should have been installed in April 2017, and the continuous dragging on of the process is in violation of the Constitution.
This deadlock of the installation of the KLP now puts the entire judicial reform at risk, because it is the main judicial institutions managing the careers of prosecutors, while overseeing several other key institutions that are the result of the reform. The KLP is responsible for:
- Announcing the end of the mandate of the General Prosecutor and proposing candidates for the new one;
- The creation and selection of prosecutors for the Special Prosecution SPAK, which will investigate corruption and serious crimes;
- The National Investigation Bureau (BKH), which operates underneath SPAK and will be an independent unit dedicated to corruption and serious crimes.
This absence of the KLP has also resulted in the government’s unconstitutional move to elect a “Temporary General Prosecutor” to succeed Adriatik Llalla, whom, however, cannot officially leave his function until the KLP has announced the end of his mandate. Llalla’s position is therefore currently in Constitutional limbo.
This failure of the judicial reform once again shows that those who drafted it – including the EU’s EURALIUS and US’s OPDAT missions – have been unable to provide a realistic avenue to judicial reform while seeking only to complete a reform “on paper.”
Similar problems with the KED
A similar “personnel problem” showed up in February this year, when the Prosecution was able to only propose 3 qualifying candidates for its 3 posts on the Council of Judicial Nominations, thus rendering the election by lot de facto useless.
This case also provided the impetus for the famous conflict between US Ambassador Donald Lu and General Prosecutor Adriatik Llalla, with Ambassador Lu attacking Llalla for “manipulating” the judicial reform, while Llalla claimed that Ambassador Lu attacked him because of his investigation of Bankers Petroleum, in which Lu allegedly interfered.
While it is now becoming increasingly clear that not “manipulation” but rather unrealistic and incoherent legislation is at the basis of much of the judicial reform failures, Ambassador Lu continues to insist that the “vetting” will lead to the installation of SPAK and BKH, in spite of the “corruption” of the General Prosecutor. It now appears that this belief is completely unmoored from reality.
