In an opinion piece, BIRN journalist Besar Likmeta recently expressed his disappointment with the decision of the Special Appeals Chamber (KPA) to overturn the verdict of the Independent Qualification Commission (KPK) and dismiss High Prosecutorial Council (KLP) member Antoneta Sevdari.
Likmeta argues that the KPA’s decision was based on the fact that Sevdari’s husband had failed to provide records of the taxes paid in Greece and Saudi Arabia as immigrant worker a decade ago. Albanian immigrant workers were often forced to work in illegality, so the absence of records is no surprise. Furthermore, Likmeta argues that Sevdari’s efforts as prosecutor have greatly benefited the Albanian state, for example in her case against Kastriot Ismailaj, who had defrauded the public energy company OShEE.
In other words, the verdict of the KPA is disproportional: the few taxes missed by the Albanian state do not compare to the professionalism and quality of Sevdari as a public prosecutor. And this disproportional verdict, in turn, threatens the credibility of the judiciary, as Likmeta suggests.
The problem lies of course not in the single judgment of the KPA in Sevdari’s case; it is embedded in the core of the vetting process, and is the result of a legislative process driven by EU bureaucrats and a government aiming to impress, rather than an actual consideration of the problems of the rule of law and fair justice. Because neither are encoded in laws or regulations, they are the result of behavior.
The vetting of the judiciary is based on three pillars: the first is an evaluation of assets, based on data provided by the High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (ILDKPKI); the second is a security evaluation provided by the National Security Agency (DSIK); the third is a review of the assessee’s professionalism by the vetting institutions.
It requires no deep understanding of human nature to predict that in nearly all cases the asset evaluation would prove to be decisive. Not too many magistrates are actual security risks, and actually evaluating someone’s professional conduct requires a long process of reviewing dossiers and interviewing the assessee in depth about their beliefs and convictions. Such a review is by necessity subjective and requires wisdom on the part of the judges, a wisdom that is moreover publicly recognized and trusted. Simply relying on “objective” numbers against which hardly any defense is possible, is therefore far easier – and easier to defend against politicians ready at every turn to slaughter the vetting institutions for whatever profit-driven motive drives them.
Also the media, by endlessly assembling report cards based on asset declarations, have contributed in no small measure to the equation in public discourse of the vetting with scrutinizing asset declarations.
The result is that the KPK and KPA, the institutions that were expected to carefully “weigh” the merits and demerits of each assessee, have in fact turned into a bureaucratic apparatus that vets ILDKPKI reports and not people.
This is in part the result of an uninformed legislative process: the vetting law presumed a professionalism and balanced judgment of the vetting institutions that could simply not be guaranteed by the selection process, and the government moreover failed to create the conditions to foster such behavior. Moreover, the internal contradictions between the verdicts released by the KPK bear witness to a lack of training and poor administrative support, partially the result of the budget cuts imposed by the Socialist government and the time pressure imposed by the artificial deadlines for EU accession.
Taking the path of the least resistance is therefore the logical outcome of the legislative process that produced the vetting institutions, insufficient funding, and time pressure. In Sevdari’s case, this has resulted in a prioritization of “objective” numbers, no matter how irrelevant, over the bigger picture – that of establishing faith in an independent judiciary and the rule of law.
That such a faith will under no circumstance be the outcome of the justice reform now appears to have become a given. Because faith cannot be restored by laws, only by actions, and neither the government, the eurocrats, the opposition, nor even the vetting institutions themselves have been able to act in any way that would suggest such faith.
This is the future: The vetting will continue. Dozens of no doubt capable judges and prosecutors will be fired over financial technicalities, and the judiciary will be crippled for many years to come, as 50% of its functionaries will be gone by the end without sufficient replacements in sight. More magistrates will turn to the European Court of Human Rights to seek their rights, and Albanian citizens will see their cases delayed for years as backlogs continue to explode. The costs for the judiciary, once the EU has stopped funding the transition period, will be a burden on the government, which will then try to blame the judiciary for its inefficiency. The eurocrats who wrote the legislation and pocketed their checks “advising” through concessions such as EURALIUS will have revolved into the private sector, caring not a single bit about the mess they left behind.
And faith in an independent judiciary and rule of law? Let us collectively laugh in despair!
– Vincent W.J. van Gerven Oei
