On July 31, the High Court announced an open call for applications to be a member of the High Judicial Council (KLGj), in order to fill the KLGj spot the law provides for an appeals judge outside Tirana.
This is yet another illegal procedure meant to fix and seemingly rescue a badly planned reform that appears to be failing at nearly every step.
Failed vetting of KLGj candidates
The KLGj must comprise 11 people that serve a 5-year term. Five of the members are appointed by the Parliament from lawyers outside of the judiciary system, whereas the other six are elected by the judiciary, via a country-wide election. As we previously explained, the six judges must represent the three levels of the judiciary: three members from the First Instance Courts, two members from the Appeals Courts (one of which must be of a district other than Tirana), and a High Court judge.
Law 115/2016 on Governance Institutions of the Justice System provides different procedures for the election of the first KLGj judge members, and the election of future generations of judge members that will replace them.
Article 276 of this law provides that, for the creation of the first KLGj, “Within one month from the entry into force of this law, the judges interested in the position of a member of the High Judicial Council, shall submit to the Independent Qualification Committee a request expressing their interest to run as candidates and the documentation required for the re-evaluation.” Candidates will also submit all the necessary legal documentation to the Chair of the High Court, who will determine whether or not the candidates meet the needed criteria.
The six KLGj members are elected out of those candidates that meet the criteria and pass the vetting. All the country’s judges, of all levels, participate in this election.
However, Law 115/2015, drafted and approved by a simple Socialist majority, does not account for what must happen if none of the candidates passes the vetting or meets the criteria.
And this is precisely the scenario we are currently facing: none of the candidates representing non-Tirana Appeals Courts have passed the vetting.
An illegal solution through the High Court
Finding itself in this legal cul-de-sac, the Socialist majority seems to have, once again, embraced an extra-legal solution. That is, to ignore Law 115/2016’s transitional provisions, which determine the ways in which the first KLGj will be created, and use, instead, the law’s provisions concerning the future generations of KLGj judges that will replace the first.
Regarding this procedure, article 9.1 of this law states (emphasis added):
The Chairperson of the High Court shall, not later than 4 months before the date of expiry of the mandate of incumbent judge members of the High Judicial Council, launch the call for submission of expressions of interest by the judges interested in the position of a High Judicial Council member.
It is clear that the above provision is not valid for the initial constitution of KLGj, but for the replacement of judges whose terms have ended. However, the Socialist majority seems to have urged Chair of the High Court Xhezair Zaganjori to open a special candidacy procedure in order to elect the first KLGj member that will represent Appeals Courts outside Tirana.
However, the procedure Zaganjori has announced is not legal, because the law does not give him the right to do so. One may speculate that Zaganjori has agreed to appropriate a right not awarded to him by the law in exchange for him passing the vetting – a few days after the application announcement, he successfully passed the vetting via a suspect KPK ruling, even though he was unable to justify his hundreds of thousands of euros worth assets. Indeed, the International Monitoring Operation (ONM) has filed a recommendation at the Public Commissioner to appeal this decision.
In fact, the Socialist majority would have never dismissed the Chair of the High Court, even if Zaganjori did not meet any of the criteria to be confirmed, as the absence of someone to lead the High Court would lead to yet another legal crisis that could not be solved without changes to the law, as the Chair of the High Court holds several responsibilities in the enforcement of the Justice Reform.
It seems that, though he is operating through an illegal procedure, Zaganjori has tried to be careful. The open call has not been made under his own name, but under the name of the High Court. This actually makes the call for applications even more problematic because the High Court is not legally tasked with any role in the establishment of new judicial organs. (It would be interesting to find out how the High Court may have reached this administrative decision, seeing that no decision-making procedures concerning this kind of action exist in its protocols.)
High Court Chair Zaganjori meets EURALIUS Director Bernhard
It seems that the complicated situation in which he finds himself may have unnerved Zaganjori, because last week he met for a long coffee date with EURALIUS Team Leader Agnes Bernhard, as proven by the image above. Witnesses told Exit that Zaganjori spoke wildly. After the meeting, which lasted longer than an hour, Bernhard and Zaganjori headed to the EURALIUS offices to continue their discussion.
This meeting may seem irrelevant at first glance – even though it is unusual for the Chair of the High Court, currently involved in a vetting procedure, to be in conversation with EU-funded experts monitoring the justice reform.
However, this meeting is significant. It shows that the Socialist majority is still using EURALIUS and the EU delegation to try and resolve the serious problems that have emerged in the enforcement of the Justice Reform via illegal rulings and actions that are formally introduced by EURALIUS, under the mask of the EU. A previous example was the election of Arta Marku as “Temporary General Prosecutor” and the failed attempt to give the High Council of Justice (KLD) and Marku the “temporary” power to nominate new judges and prosecutors
The meeting between Zaganjori and Bernhard has also shown that the failures in the implementation of the Justice Reform will be approached in the same way that the laws that determined its enforcement were: proposals drafted by technical experts in non-transparent, un-institutional, and politically exclusionary ways, with little to no understanding of the Albanian political situation.
It was precisely an EURALIUS group of experts, with no constitutional experience nor any knowledge of political processes in Albania who, via a completely opaque and exclusionary process, directed and implemented solely by the Socialist majority, wrote the laws for the implementation of the Justice Reform, that have today brought about the paralysis of the judiciary system and have placed it squarely under the yoke of the Socialist majority.
The latest case concerning the election of the “final” KLGj candidate, is another indicator that EURALIUS is now involved in a systematic struggle to draft illegal and unconstitutional band-aid solutions in order to obfuscate the obvious failure of the Justice Reform and to aid the Socialist majority in its attempts to completely incapacitate and control the judiciary system.