From: Vincent W.J. van Gerven Oei
The “Fabrications” of the European Union

Last week, EU spokesperson Maja Kocijančič released a damning statement that was immediately picked up by the Albanian media. It started as follows:

The European Union deplores the fabrications that have appeared in the press against the EU Delegation and the Head of Delegation in Albania, Ambassador Romana Vlahutin.

Exit reached out to Kocijančič to clarify which “fabrications” she was claiming the Albanian media would have made. Was it perhaps the doubts around the acquisition of her luxurious residence? Or was it the rumors that General Prosecutor Adriatik Llalla had met the the director of EU anti-fraud agency OLAF in Brussels to discuss an investigation of the EU Delegation? Rather than providing facts that take away any possible doubt about the legality of the actions of the EU Delegation in Albania, Kocijančič refused to provide an answer to Exit’s repeated queries for clarification.

Even members of European Parliament have expressed their concern. At the PD Forum of Women, MEP Doris Pack stated that she would be “ashamed” if what was reported in the Albanian media about EU Ambassador Romana Vlahutin were true. Precisely because it would be hypocritical to urge Albania to fight corruption while tolerating corruption in its own ranks.

The statement of the EU spokesperson continued:

The Delegation will continue, with dedication and in close coordination with the EU institutions, to accompany Albania in its difficult rule of law reform to put in place a solid and dependable judicial system which the citizens of Albania want and deserve.

So let us have a look at the efforts of the EU to provide this country with a “solid and dependable judicial system,” one that is relatively free from direct political influence, corruption, and nepotism. It would be logical that these efforts would be in harmony with the constitutional changes that facilitate the implementation of the judicial reform. But interestingly, the EU as been producing some “fabrications” of its own.

The  International Monitoring Operation Management Board

On February 13, 2017, Minister of Justice Petrit Vasili sent a letter to President Bujar Nishani, Speaker of Parliament Ilir Meta, and the EU and US Ambassadors, raising his concern about the unconstitutionality of the “Management Board” of the International Monitoring Operation.

The International Monitoring Operation is an independent institution defined in the Annex to the Constitution, and a key element in the judicial reform process. According to to art. B(2) of the Constitutional Annex,

The ONM exercises its own duties according to international agreements. The ONM nominates international observers after the notification of the Council of Ministers. The observers are nominated from the ranks of judges or prosecutors with no less than 15 years of experience within the juridical system of their respective countries.

The ONM has an advisory function in the vetting process, starting with the members of the Independent Qualification Commission (KPK), Appellate College (KA), and the Public Commissioners who will then reassess the rest of judges and prosecutors with the advise of the ONM. Nowhere in the Constitution do we find a mention of the “Management Board,” its composition, or its role.

This is affirmed by the FAQ on the website of the EU Delegation to Albania. Whereas the FAQ points out that the ONM itself is based on the Constitution, the Management Board is not:

Will the IMO [=ONM] management board be making executive decisions in relation to the vetting process?

No, neither the IMO management board, nor the observers deployed in the framework of the IMO take any executive decision whatsoever.

In accordance with the constitution, the IMO is mandated to monitor the vetting process throughout.

The IMO has no final decision making powers in relation to the vetting, in the interest of preserving local ownership and sovereignty.

Whereas the ONM has a constitutional mandate “to monitor the vetting process throughout,” the Management Board has no mandate whatsoever.

Considering the delicacy of an operation that aims to reassess the entire Albanian judicial system, one imagines that such board would only be constituted on the basis of a solid legal foundation, such as the Constitution. However, it appears the Management Board of the ONM is a “fabrication” of the EU itself.

On February 8, ONM director Genoveva Ruiz Cavalera announced the constitutive meeting of this Management Board, consisting of herself, EU Ambassador Vlahutin, and US Ambassador Donald Lu. Let us have a look at the press release:

The IMO Management Board deploys monitoring teams made up of senior judges and prosecutors from EU Member States and the United States. They will monitor the process of forming the vetting bodies, as well as the re-evaluation of all judges and prosecutors within the Albanian judiciary.

First of all, it is unclear what it means that the Management Board “deploys monitoring teams.” As is clear from the Constitution, the ONM consists of five professionals with 15 years of experience, who report to no one except themselves. The relation between any “board” and the independent observers is established nowhere in the Constitution.

While the IMO Management Board will perform a monitoring role, it will not make any executive decision. All final decisions lie with the national authorities. The IMO is dedicated to diligently monitoring and overseeing the process of vetting.

This paragraph shows further unclarity. First, it states that the Management Board will “perform a monitoring role,” for which it has no mandate. Are Ambassador Vlahutin and Lu going to sit in on the meetings of the ONM? Will they have access to the documents provided to the ONM? All of this would be highly problematic. But then in the last sentence, it is the ONM itself (its five observers) that is “dedicated to diligently monitoring,” which is its constitutional function. So who monitors? The Management Board of the ONM, the ONM, or both?

The IMO will perform its tasks with professionalism, impartiality and in accordance with the law.

Again, this statement is consistent with the ONM constitutional mandate. But what about the Management Board of the ONM? Will it also “perform its tasks with professionalism, impartiality and in accordance with the law”? Considering the fact that its constitution already seems not to be in accordance with the most important law of Albania, this raises issues about its professionalism and impartiality.

As for the precise tasks of the Management Board, we can turn to the press points of Ruiz Cavalera:

Throughout the process, the IMO Management Board will maintain an oversight and coordination role for these monitoring efforts by the international community.

Again, what is there to oversee or coordinate? The ONM consists of five people with a long experience in the legal profession. They will be able to read the vetting dossiers very well by themselves. Of course they need maybe some supporting staff for the website or emails, or to make some copies. But what would the EU and US Ambassadors have to do with that?

It has been broadly reported in the Albanian media how Ambassador Vlahutin during her entire tenure has refused to address corruption and organized crime, in spite of the 2016 Progress Report on Albania which is explicit on this point. She has at multiple times defended the Rama Government against the opposition. And Ambassador Lu recently entered into a public conflict with General Prosecutor Adriatik Llalla.

This is of course their prerogative, even if unwise or undiplomatic. However, the main and ultimate aim of the judicial reform is that the system that results from it is, according to Ruiz Cavalera, “independent, impartial, accountable and professional.” The inclusion of both the EU and US Ambassadors in an Management Board without clear mandate is therefore enormously damaging to the impartiality of the vetting process.

Both ambassadors are, whether they want it or not, political figures. As such they should have no role in the ONM, which is supposed to be the standard of professionalism and impartiality.

The Management Board of the ONM is a fabrication of the EU that will ultimately backfire, if that hasn’t happened already.