From: Vincent W.J. van Gerven Oei
Comment: Theo Jacobs Said Openly What the Internationals Only Dare to Think

A few weeks ago, Theo Jacobs, member of the International Monitoring Operation (ONM) headed by Genoveva Ruiz Calavera, saw it fit to break out of the constitutional and legal context in which he is expected to operate and commented on a current lawsuit at the Special Anti-Corruption Court against Special Appeals Chamber (KPA) judge Luan Daci.

Daci has been officially charged with falsification of documents for hiding a previous dismissal from office, which would have would have disqualified him from holding the office of KPA judge and playing a role in the crucial process off vetting the judiciary.

Jacobs, however, didn’t seem at all pleased with the proceedings brought against Daci, complaining that the judges at the Special Court and the newly appointed prosecutors at SPAK “shouldn’t have been there.” Not only is Jacobs – a supposedly apolitical, neutral, but also completely unaccountable “specialist” – commenting openly on a court proceedings at an Albanian court, he is also openly attacking the “crown jewel” of the Justice Reform, SPAK.

The High Prosecutorial Council (KLP) released a response to Jacobs this week, pointing out – not without irony – that all SPAK prosecutors had passed the vetting, under the watchful eye of Jacobs and his colleagues. Thus, the KLP appeared to imply, if indeed those prosecutors “shouldn’t have been” part of SPAK, who then precisely failed to do their job? It is not surprising that the ONM itself distanced itself from its “independent observer.”

But why would Jacobs be so openly hostile to SPAK’s investigation of the Daci case? Well, because those with a personal stake in the success of the Justice Reform see the enormous risk of a conviction in the Daci case, and Jacobs – known for his no-nonsense, straightforward, and sometimes aggressive style – is saying openly what the others think. Daci’s conviction would pose a direct threat to his work and that of his colleagues.

This has everything to do with the current court cases pending at the European Court of Human Rights (ECtHR), in particular the one filed by Antoneta Sevdari. The core question that the ECtHR has under consideration is whether the vetting bodies constitute an “independent and impartial tribunal.” A conviction of Daci would provide strong evidence that they are not, which would mean they violate the fundamental human right to a fair trial.

Hence the anxiety among the internationals about the Daci case. They don’t care whether he is guilty or not. They don’t bother with the rule of law. They simply worry about their own careers and the bragging rights to have “fixed” the Albanian judiciary. And in order to save their own skin they are willing to attack the one institution they all publicly placed their hope on: SPAK.

And the Daci case is just the beginning of their troubles. Credible and substantiated accusations against other vetting judges have been filed, including Alma Faskaj and Ardian Hajdari.

In a preemptive strike, Ruiz Calavera has already claimed that any possible conviction of Daci, and thus a confirmation of his ineligibility for office, would not render his past judgments invalid. A submission by the European Commission in the case filed by Besa Nikëhasani at the ECtHR makes a similar argument:

It is true that this general conformity does not exclude that, in individual cases, the vetting rules are being interpreted or implemented in a manner that is not fully compliant with the requirements following from due process and fundemental human rights. However, the Commission respectfully submits that if such shortcoming were to be identified, they should be remedied without calling into question the essential elements of the Vetting as such.

In other words, the European Commission argues that even if Daci and several other judges turn out to have been appointed illegitimately, and even if the vetting bodies themselves turn out to be neither impartial nor independent, nor – dare we say it – intellectually and professionally equipped to vet the entire Albanian judiciary, even if all of that were the case, the vetting must continue at all cost.

In 2017, when after many delays the vetting building was opened, Jacobs held a speech. He said:

Also including the work that will be done in this building, my colleagues and I will in the future encounter difficulties in this long and challenging process. However, we will not lack the dedication to make the necessary operations in the justice system. […]

This operation, which is just starting will clarify several points and bring justice to the country. We have to be clear about the possibilities that the ONM will give us by sharing their experience with the independent commissioners to bring justice to Albania.

I can imagine that Jacobs, former Chief Prosecutor of EULEX in Kosovo, gave a similar speech when he started his tenure there. Since the beginning, Jacobs was involved in controversy about which law would be applied in Kosovo courts, leading, according to confidential cable of US Embassy in Kosovo, to “a confusing mish-mash of legal rulings with little internal consistency.” It is no surprise, then, that EULEX turned out to be a failure, which in its 13 years of existence has been unable to establish anything resembling an independent judiciary or rule of law. The consequences of that failure are openly on display.

Whether or not Daci gets convicted is irrelevant. Jacobs’s attack on vetted Albanian officials, the indefensible position taken by Ruiz Calavera and the European Commission, and the general degeneration of the rule of law already show that the Justice Reform will go the way of the EU’s other failed Balkan experiment.