The High Judicial Council (KLGj) and the US Agency for International Development (USAID) have signed a memorandum of understanding for establishing a troop of clerks at the High Court that will handle more 35,000 files currently awaiting review.
These clerks will influence whether a case will be reviewed by the High Court or not. They will carry some or all the tasks that current legal aides, that study the case and draft a report on court rulings, the parties’ claims, legal issues, and give their opinion on whether the Court should accept or reject the case.
These clerks have been named Backlog Reduction Officers (BRO), a name with no justice to the judiciary, seems to not have been chosen at random. The term ‘legal aid’ has been intentionally avoided, because the selection and hiring process for BROs will sidestep the Constitutional and legal standards intended for legal aides. This, even as BROs will be carrying out much of the same tasks as those of a legal aide.
The memorandum provides that BROs will be screened, contracted, and paid by the East West Management Institute, Inc. (EWMI), a private organization hired by USAID to implement the Justice for All Project. EWMI will also be responsible for training and assessing the performance of BROs.
The selection of BROs will not follow any of the criteria or procedures applying to High Court legal aides.
According to Albanian law, legal aides, depending on their position at the High Court, must meet all criteria for being a judge in first instance or appeals courts.
Therefore, High Court legal aides must have completed the School of Magistrates, must undergo the vetting process, and must meet the same professional, ethical and conflict of interest standards applied to members of the High Court.
These criteria will not be used for BROs. They need not to have a degree from the School of Magistrates, any previous experience in the judicial, or meet any strict professional criteria.
The lack of education and experience will be compensated through e crack course, more scandalous even than the training of the 1993 so-called “poplar judges”: people with no legal education whatsoever who were trained to be judges via a 6-month course (held in the Durrës government vacation complex, in the Poplar area) in order to replace part of the judicial body inherited from communism.
BROs will not only not undergo vetting, they aren’t even obligated to declare their assets and conflicts of interests. They will not be conferred any status, that brings professional obligations with it, and will not give any guarantees with regard to their professional activity and integrity.
This memorandum de facto privatizes a part of the justice system, establishing a legal body practically independent of the Court and unaccountable to any constitutional body.
The memorandum’s final article recognizes that this is not a binding document and neither EWMI and USAID can be hold liable, even under international laws, for consequences of memorandum’s implementation.
That means, that EWMI and BROs may fail, may abuse their power and still won’t be held accountable to any one. In fact, the memorandum is a clear case of ultra vires: an act which requires legal authority, but is carried without it.
EWMI is a controversial organization, not only because it has been supported and funded in the past by American philanthropist George Soros. More importantly, it has failed to produce any significant result in implementing the $10 million Justice for All in Albania—in particular, project’s media and civil society components have spent millions with no significant impact to show for.
EWMI has avoided any transparency in managing the project—no evaluation or published results exist for the project, not even a web page. Its office in Tirana has limited capacities, only a staff of only three experts, and is incapable of doing much.
The legal unit established by the memorandum, given lack of accountability, standards, and proper supervision, will susceptible to corruption. After all, it would be easier and likely less risky to corrupt a BRO, who will work on a temporary 10-month contract, than a judge or legal aide which are bound by strict professional and ethical standards, and supervised and audited by several institutions.
The victims of this mechanism will be Albanian citizens, who will be deprived of due process. Having suffered the consequences of a corrupt and incompetent judiciary, and after more than two years without a functioning Hight Court, their cases will be handled by likely incompetent judicial clerks.
The USAID and KLGj memorandum is not based on any Constitutional provision or law. By signing it, KLGj has practically privatized its own and High Court’s competences handing them to a private organization, in violation of the Constitution, country’s laws, as well as international law and practice.
KLGj has violated European legal aide standards, that are primarily based on the French Référendaire or German-Austrian Rechtspfleger models.
This is why the memorandum has been strongly opposed by EURALIUS and the EU delegation in Albania, though they were not able to prevent its signing in the end.
Their only hope, now, is once again the European Human Rights Court in Strasbourg.
