In July 2016, the Albanian Parliament amended more than a third of the country’s Constitution through a consensual vote. In the following months a series of laws were passed by the socialist majority to establish the legal framework for the implementation of constitutional amendments.
This extensive legal package has since been known as the judicial reform. The aim of the judicial reform was to eradicate corruption from the ranks of the courts and the prosecution, and establish the judiciary as a truly independent branch of government.
The reform entailed a thorough vetting of all judges, prosecutors, and supporting personnel, and the establishment of several new institutions, including the Council of Judicial Nominations (KED), the High Prosecutorial Council (KLP), and the High Judicial Council (KLD), as well as the Special Prosecutor (SPAK) and the National Investigation Bureau (BKH).
The successful implementation of the judicial reform is one of the key conditions that need to be fulfilled by the Albanian government in order to open EU accession negotiations. Signals from both the EU Embassy in Tirana and the government indicate that they expect negotiations to open this year.
This brings us to our main question: what has been the effect of the judicial reform so far?
Constitutional Court and High Court
As a result of the “threat” of vetting, ending of mandates, and retirements, both the Constitutional Court and the High Court are incomplete and in a state of institutional paralysis. According to the Constitution, the Constitutional Court comprises 9 members, with a quorum of 6. At the moment, however, the Constitutional Court only has 7 members, of which one, Altina Xhoxhaj, has been long-time absent for health reasons. The term of another member, Vitore Tushaj, is legally already over, but no replacement has been found.
The situation in the High Court is even more problematic. The High Court should be comprised of 19 members, but currently only consists of 9, less than half of the legally required number, and less than the quorum. This means that the High Court, which is the only court that considers and decides cases involving members of parliament, ministers, and other high ranking politicians has been completely incapacitated.
The current backlog of the High Court is more than 22,500 cases.
Council of Judicial Nominations (KED)
The KED verifies and evaluates the professional and moral criteria of the candidates for the Constitutional Court and the High Judicial Inspectorate. The KED was elected in December 2017 by Parliament, although the opposition argued that the election was unconstitutional because the President was bypassed and because neither the KLP nor KLGj had been instituted.
So far, the KED has been unable to fill the vacancies in the Constitutional Court or any other vacancy in the justice system, which means that it is, practically, exists only in name.
High Prosecutorial Council (KLP) and the High Judicial Council (KLD)
The search for qualified KLP and KLD candidates took months longer than constitutionally allowed; in April 2017 both institutions should have already been elected, but the government dragged on the procedure, leading, in part, to the lawless situation at the Prosecution Office. When finally the KLP and KLGj were elected, it turned out that several members violated the legal criteria and had even been elected against the recommendations of the International Monitoring Operation (ONM).
Alfred Balla, appointed to the KLP by civil society, had in fact not been active in civil society for 5 years, and had copied most of his application platform from another rejected candidate, Plarent Ndreca. He was nevertheless elected. Another member of the KLP, Gent Ibrahimi, didn’t have the legally required number of teaching years or grade under his belt to be elected as a representative of the Magistrate School. Both were disqualified by the ONM.
Furthermore, several other members of the KLP and KLGj have violated a host of other legal prohibitions relating to taxation, asset declaration, and political party membership.
Meanwhile, the other candidate members of KLP and KLGj from the ranks of prosecutors and judges, remain to be vetted by the vetting institutions. As long as the KLP and KLGj have not been installed, no new judges and prosecutors can start their work.
Prosecutor General
We have reported widely on the unconstitutional election of Arta Marku as Temporary Prosecutor General, justified by a dubious “legal opinion” of legal assistance missions EURALIUS and OPDAT. In the meantime, Marku has continued with a number of unconstitutional reorganizations of the Prosecution Office for which she has no constitutional mandate, while significantly slowing down the investigations against former Minister of Interior Saimir Tahiri and Durrës Mayor Vangjush Dako.
Special Prosecutor (SPAK) and the National Investigation Bureau (BKH)
Both the SPAK and BKH should have been installed by the KLP, which, however, itself remains in limbo. As a result, Temporary Prosecutor General and Minister of Interior Fatmir Xhafaj have decided on the (again unconstitutional) creation of Special Prosecutors in the Serious Crimes Prosecution Office and local prosecution offices for the investigation of corruption and organized crime. The fact that these organs are co-directed by the Ministry of Interior, means that the independence of the judiciary is further undermined.
European Court of Human Rights
Finally, the chaos in which the government has cast the judiciary has also led to records delays in the election of the new Albanian judge at the European Court of Human Rights, after two candidate lists had been rejected by the Plenary Assembly of the Council of Europe. Recently the Ministry of Justice admitted there is no procedure in place to nominate a new candidate.
So what have we seen since the judicial reform package passed in 2016?
– Weakening of the rule of law by several unconstitutional and unilateral decisions on KLP and KLGj candidates, the Temporary Prosecutor General, and the SPAK and BKH.
– Paralysis of the entire judiciary including the Constitutional Court, High Court, and the Albanian seat at the European Court of Human Rights, while several politicians are under investigation.
– Capture of the judiciary by the government, mainly by dictating over the Prosecution Office and immobilizing the rest.
– Election of several unqualified members of the KLP and KLGj.
– Not a single result from the vetting process, which, the European Commission continues to insist, “advanced in line with the expected timelines.”
