From: Arjan Balla
The Vetting Commission Judges Violate the Constitution with Impunity

Who controls the controllers? Apparently no one. The commissioners of the vetting institutions to reform the Albanian judicial system were recruited and appointed without transparency and without proper checks on their proficiency, background, and ability to fulfill the most important process in the history of Albanian justice. After all, the vetting of all magistrates and the outcome of the process will impact the rights and destinies of not just the individuals involved, but the whole country as well.

As a result, most of the commissioners who took up the task to evaluate and adjudicate magistrates had not even adjudicated one single time in their lives, and the majority of them had never stepped in a courtroom or prosecutor’s office. Moreover, many had never held a decision-making position on any issue, at any level.

The consequences of this irresponsible approach to the vetting process is becoming clearer every day. It has already been revealed that some of the commissioners have been appointed in violation of constitutional and legal criteria for their selection, and have issues with their assets and backgrounds. Meanwhile, the vetting has been carried out with double standards: extreme severity towards magistrates without ties to politics on one side, and tolerance beyond legal limits for those linked to the government on the other side. can reveal yet another scandal in the work of the vetting commission – the Independent Qualification Commission (KPK) – and can prove that its members have violated the Constitution and laws. In addition to this, there is evidence of criminal offences being committed without any of them being held accountable, facing any investigation, or being penalized for their illegal activities.

The case in question relates the background checking of former Judge of Constitutional Court Fatmir Hoxha, which has brought to light two serious problems in the work of the vetting commission. Firstly, the KPK bodies have violated the professional and legal standards, and thus have also violated the constitutional and legal rights of their vetting subject. Secondly, the KPK has refused to take responsibility for the violation of these professional and legal standards.

Judge Hoxha was fired by the KPK in May 2018, a decision later confirmed by the Special Appeals Chamber (KPA). His case is one of the most prominent examples of the double standards that are employed by the KPK.

Judge Hoxha was dismissed for not being able to justify with receipts a small amount of money that he earned some years ago. As we have written before, the same vetting commission has confirmed in duty magistrates who had much more severe violations of similar nature. The cases of Prosecutor Donika Prela and Judge Xhezair Zaganjori are the most notorious ones.

Following the decision of his dismissal, Hoxha filed a complaint at the KPK regarding certain aspects of their verdict. The vetting commission reviewed the complaint and on June 25, 2018 issued Decision No.18/1.

This decision revealed some clear violations of the procedures, laws and constitution committed by the vetting body commissioners.

The beginning of the decision states that it was taken by three commissioners:

“The Judicial Body of the Independent Qualification Commission, consisting of three members, Xhensila Pine in the capacity of chairwoman, Valbona Sanxhaktari in the capacity of member, and Alma Faskaj, in the capacity of relator, judged over Mr Hoxha’s complaint in the counselling room.”

The decision holds the names of all three of the above commissioners, but it is signed by only two of them, Commissioner Sanxhaktari and Commissioner Pine, as well as the secretary’s signature. The signature of the relator, Commissioner Faskaj, is missing.

Given this fact, Mr Hoxha inquired further, only to find out that although the decision refers to a panel of commissioners attended by Commissioner Faskaj, she was in fact not present and did not participate in the review of his complaint. Indeed, on the date of the decision, Commissioner Faskaj was not in Albania but in Italy for health reasons.

Mr Hoxha was able to learn this fact only after filing repeated requests with the vetting commission. The administration had dragged the official reply out for several weeks which shows not only the poor working standards of the vetting institution, but also the lack of provision of basic rights for the vetting subjects.

After many weeks of delays, Mr Hoxha received the minutes of the KPK meeting, which verified the fact that his complaint was actually judged over by only two commissioners. In the meeting minutes it is stated that “because of health reasons, Commissioner Alma Faskaj, in her capacity of relator for this body, is unable to be present at this meeting”.

This fact constitutes a serious constitutional and legal violation. Article C, point 1 of the Annex to the Constitution clearly stipulates that “the Independent Qualification Commission consists of four permanent bodies with three members each.” The same is stipulated in Article 14 of the Vetting Law – Law 84/2016 on the Transitional Re-Evaluation of Judges – and in the Regulation on the Functioning of the KPK.

The regulation also stipulates (Article 15, point 8) that in case a member of the judging body is unable to attend and the session cannot be postponed, he/she should be replaced by another member assigned by lot.

The Vetting Law (Article 14, point 5) further stipulates that the relator of the case “prepares the file to be judged, undertakes all the procedures to guarantee the necessary evidence for the decision-making process of the body, takes all measures to draft the documentation necessary until the end of the case, and proposes a decision giving his/her reasoning.” This law also stipulates (Article 57, point 1) that “the relator of the case presents in writing the reasoning for the decision taken by the commission.”

In the case at question, the KPK has clearly violated the Constitution and the law by holding a session and coming to a decision without the presence of Commissioner Alma Faskaj, which disqualifies this body from taking any decision. The violation is even more serious because the relator, who is responsible of “presenting the case” and the reasoning of the decision-making body, was not present when the case was judged and decided upon.

This legal violation was followed by another one. Commissioners Xhensila Pine and Valbona Sanxhaktari have falsified Decision 18/1 by filing false information in it. They have falsely asserted that the judicial body was complete, that it had included Commissioner Alma Flaskaj, who was actually out of the country.

This type of falsification is punishable by imprisonment from one to seven years, according to the Criminal Code (Article 186, paragraph 3):

“When the forgery is done by the person who has the duty to issue the document, [the person] is sentenced to imprisonment from one year to seven years.”

Having ascertained these violations, on February 28, 2019, Mr Hoxha formally requested the KPK to initiate disciplinary investigations, as required by the Vetting Law (Article 17/1):

“In case of sufficient evidence from reliable sources that the member of the re-evaluation institution has committed a disciplinary offense, disciplinary investigation is initiated.”

In his request, Mr Hoxha has presented all the written evidence confirming the legal violations by Commissioners Pine and Sanxhaktari. In fact, all documents he presented were already included in his file at the KPK and the KPA.

On March 11, 2019, the Chair of KPK informed Mr Hoxha that “the Independent Qualification Commission assesses that the criteria for initiating disciplinary proceedings were not met”. The answer gives no information as to how the KPK reached to this conclusion and how the decision was made.

This KPK decision is an illegal move to protect commissioners, as the law makes it mandatory to initiate disciplinary investigations against them. The Vetting Law (Article 16, point 12) provides as a reason for the disciplinary responsibility of the member of the re-evaluation institution “the distorted presentation of factual evidence in the issued acts”.

Thus, the law charges the commissioner with responsibility when a given evidence, fact or circumstance is distorted in the KPK act or decision.

Nevertheless, the KPK has disregarded both the Constitution and the law, and decided not to initiate disciplinary investigations into Commissioners Pine and Sanxhaktari, thus holding them above the Constitution and law.

With this action, the KPK has also violated its constitutional obligation for transparency and accountability. The Constitution (Article C, point 2) sanctions that:

“The Commission [KPK] and the Special Appeals Chamber exercise their responsibilities based on the principles of accountability, integrity and transparency, for the establishment of an independent and professional judicial system free from corruption.”

KPK’s constitutional and legal violations in this case – the institution that is supposed to guarantee a clean judicial system – constitute a real scandal and are yet another evidence of the compromised vetting process.