In the coming days, the Venice Commission will give its advice to the Constitutional Court in relation to law no. 84/2016 “For the transitional reassessment of judges and prosecutors in the Republic of Albania,” also known as the “vetting law.”
In October, the Democratic Party (PD) had appealed the law to the Constitutional Court as unconstitutional, requesting its cancellation. The Constitutional Court subsequently sent the law for advice to the Venice Commission, which had previously also advised on the constitutional reform that forms the basis of the reassessment process.
The vetting law is one of seven laws comprising the judicial reform package that need to be implemented after the unanimously accepted constitutional reform in July. It was passed in August with only the votes of the majority, with the PD abstaining from vote.
Exit explains the constitutional basis of the judicial reform and possible problems with the vetting law, especially in relation to the working group that is supposed to be set up by the Directorate of the Security of Classified Information (DSIK).
Constitutional definitions
The new Constitution envisions a full reassessment of all judicial officers: judges and prosecutors of all levels, their legal aids, and inspectors of the High Judicial Council. This reassessment of vetting process is defined in Art. 179/b and further developed in a special Constitutional Annex.
According to Constitution Art. 179/b para. 5,
The reassessment is done by the Independent Qualification Commission [KPK], which complaints of subjects to reassessment or the Public Commissioner are reviewed by the Appellate Commission [KA] at the Constitutional Court.
Thus the KPK conducts the reassessment, against which both the subject or a Public Commissioner, which according to Constitutional Annex Art. C para. 2 represents the public interest, can file an appeal at the KA. Thus the KPK, KA, and Public Commissioner are constitutionally the only institutions responsible for the vetting procedure.
Because the independence of the members of both the KPK and KA and the Public Commissioners is essential for a successful implementation of the reassessment law, Constitutional Annex Art. C specifies detailed criteria to ensure their independence.
Candidates are selected through an open procedure organized by the President, who then presents them to Parliament, where an ad-hoc committee makes, through a rather byzantine voting system, the final selection. This final selection is then presented on a single list to Parliament for a vote that needs a 3/5 majority.
Following Annex Art. B, the entire process is monitored by the International Monitoring Operation (ONM), directed by the European Commission. The ONM advises the Parliament regarding the qualification and selection of members of the KPK and KA and Public Commissioners, and contributes findings and suggestions to the KPK and KA during the reassessment procedures.
Once the KPK, KA, and Public Commissioners have been nominated, they will subsequently reassess all other officials listed in Art. 179/b para. 4. This reassessment is defined in Annex Ç, and follows a triple control procedure of wealth, background, and professional abilities.
This reassessment explicitly includes only one other state institution. Following Annex Art. D para. 2, control of wealth is executed by the independent state institution of the High Inspectorate of the Declaration and Control of Wealth and Conflict of Interests (ILDKPKI). Although under Annex Art. Dh para. 1, the background control includes a declaration of good conduct, the background control, and assessment of professional abilities fall in their entirety on the KPK, KA, and Public Commissioners.
Following Annex Art. Ç para. 3 the KPK and KA have full an unlimited access to all information the Albanian state possesses on the subject of reassessment:
The state institutions of the Republic of Albania collaborate with the KPK and KA by putting at their disposition requested information, as well as by securing direct access to the data. They can give opinions or make concrete proposals, according to the law.
The vetting law
The form of the KPK and KA’s access to government information, as well as the procedures that come with receiving a “declaration of good conduct,” has not been defined in the Constitution. This is where the vetting law comes in.
According to Art. 36 para. 1 of the vetting law,
The reassessment institutions in collaboration with the Directorate of the Security of Classified Information [DSIK] are the responsible authority for the background control. The DSIK has the right to appoint additional personnel to complete the background control for the aims of this law. The persons that will do the background control fulfill the applicable standards for the protection of privacy and confidentiality during duty.
According to para. 2, the DSIK sets up a working group:
The DSIK, the State Information Service (ShISh), and the Control Service of Internal Affairs and Complaints (ShKÇBA) of the Ministry of Interior Affairs create a working group for the implementation of this law. These structures may appoint personnel supporting the working group for a time period no less than one year.
First of all, the Constitution does not mention the DSIK in the same way it explicitly mentions the ILDKPKI in Annex Art. D. Thus it is not supposed to be “responsible” for the background control as defined in Annex Art. DH in the same way that the ILDKPKI is responsible for the control of wealth.
The discussion here revolves around the interpretation of “in collaboration with.” If this means that the KPK and KA can access governmental information only through the working group of the DSIK, there is an obvious conflict with the Constitution. If “in collaboration with” is interpreted according to the collaboration of state institutions mentioned in Constitution Annex Art. Ç para. 3, the case is different.
However, following vetting law Art. 37, it seems that the working group of the DSIK is expected to deal with “general requests” such as “the precise verification of the past and current identity of each individual”; “the verification whether there are criminal tendencies or inclusion into organized crime”; “general assessment whether the individual can be put under pressure by organized crime”; “control whether he has been, is, or tries to secretly engage, alone or in collaboration, or in content with criminal organizations.”
In other words, the working group headed by the DSIK is expected to fulfill a very important aspect of the background control entrusted to the KPK and KA, which, naturally, will be dependent on the quality of the research of the working group in order to fulfill its reassessment.
The PD’s complaint
This is where the composition of DSIK working group becomes problematic. The director of the DSIK is directly appointed by the Prime Minister and, moreover, the head of the ShKÇBA falls directly under the Minister of Interior Affairs, Saimir Tahiri, whom the opposition has accused multiple times of being involved in organized crime.
The KPK and KA’s dependence on the working group of the DSIK as defined in the vetting law therefore risks to undermine the entire credibility of the reassessment process. Whereas the members of both the KPK and KA have themselves undergone a strict selection procedure, members of the DSIK working group are political appointees, and their personnel is only supposed to “fulfill the applicable standards for the protection of privacy and confidentiality during duty,” rather than function under the legal constraints set out in the Constitutional Annex.
Moreover, following Art. 39 para. 2, the information contained in the assessment report that the DSIK presents to the KPK and KA is not made public if “the security of the source is threatened.” This article can possibly come into conflict with Constitution Annex Ç para. 2, which determines that the KPK and KA have to publish all their decisions and other information, taking in consideration the “proportionality between privacy and the needs of the investigation.”
The complaint of the PD about the unconstitutionality of the vetting law thus relates in essence to the risk of executive control over the DSIK working group, thus undermining the entire reassessment process.
The Venice Commission
It is still uncertain in what terms the Venice Commission will express itself about the request of the Constitutional Court. However, a previous opinion from last year on the draft constitutional amendments dealing with the judicial reform, was very careful in its opinion regarding the reassessment process:
The necessity of the vetting process is explained by an assumption – shared by nearly every interlocutor met by the rapporteurs in Tirana – that the level of corruption in the Albanian judiciary is extremely high and the situation requires urgent and radical measures. The question is whether this wide consensus creates a sufficient basis for subjecting all the sitting judges (including the honest ones) to re-evaluation, irrespective of the specific circumstances of each individual judge. This is a question of political necessity and the Venice Commission is not in a position to pronounce on it. It must be remembered, however, that such radical solution would be ill-advised in normal conditions, since it creates enormous tensions within the judiciary, destabilises its work, augments public distrust in the judiciary, diverts the judges’ attention from their normal tasks, and, as every extraordinary measure, creates a risk of the capture of the judiciary by the political force which controls the process.
This final warning is precisely the reason the PD has opposed the way in which the vetting law writes the executive branch of government into the reassessment procedure by means of the DSIK working group.
It remains questionable, however, whether the Venice Commission would want to clearly and univocally engage such a question of “political necessity.” It will therefore be up to the Constitutional Court, no matter the opinion of the Venice Commission, to give its final verdict.
