Yesterday, the Venice Commission published its amicus curiae brief to the Albanian Constitutional Court regarding law no. 84/2016 “For the transitional reassessment of judges and prosecutors in the Republic of Albania,” also known as the “vetting law.” The vetting law is one of the main components of the judicial reform, the implementation of which is a hard condition for the opening of accession negotiations with the EU.
The Venice Commission reviewed the four questions posed by the Constitutional Court at the request of the Democratic Party, although it leaves a judgment about the constitutionality of the vetting law explicitly to Albania’s highest court:
4. This is an amicus curiae brief for the Constitutional Court of Albania. As such, it does not have the intention of taking a final stand on the issue of constitutionality of certain provisions of the Vetting Law, but merely to provide the Constitutional Court with material as to the compatibility of the relevant provisions of the Vetting Law with European standards, so as to facilitate the Court’s consideration of these provisions under the Constitution of Albania. It is the Constitutional Court of Albania that has the final say on the binding interpretation of the Constitution and the compatibility of national laws with this text.
Three of the questions dealt with the issue whether the vetting law is in accordance with the European Convention on Human Rights (EHCR). According to the Venice Commission, the assessment procedures laid out in the vetting law do not necessarily conflict with the EHCR.
The fourth question deals with the more delicate, and internal problem of the balance of powers.
The balance of powers
In our analysis of the constitutionality of the vetting law, we already showed how the precise influence of the working group headed by the Directorate of the Security of Classified Information (DSIK) in the background check, one of the three components of the assessment, is potentially problematic; the executive control over the composition of the working group, and its secrecy clause, may skew the assessment process and threaten the independence of judiciary.
This issue is treated extensively in the amicus brief, and the interpretation offered by the Venice Commission puts a strong emphasis on the powers of the vetting institutions: the Independent Qualification Commission (KPK) and the Appellate Commission (KA).
The Venice Commission suggests that nothing prevents the KPK and KA from doing their own their investigations, irrespective of the reports of the High Inspectorate of the Declaration and Control of Wealth and Conflict of Interests (ILDKPKI) and the DSIK working group, and that all governmental bodies have cooperate with their requests. In other words, the KPK and KA will always have the power to re-evaluate the reports on wealth and background presented to them by the ILDKPKI and DSIK working group, respectively.
37. It should also be borne in mind that Article Ç, para. 4, of the Annex [of the Constitution] expressly confers on both the Independent Commission and the Appeal Chamber extensive powers to investigate and verify matters themselves. According to paragraph 3 of the same Article, official bodies shall cooperate with and disclose requested information to the Independent Commission and Appeal Chamber and grant direct access to their databases. Moreover, while Article 45 of the Vetting Law allows members of the Independent Commission and the Appeal Chamber to investigate autonomously on all relevant facts, Article 57(4) puts forth the principle that in the decision process of the Independent Commission, the conclusions are drawn by the panel.
The Venice Commission concludes that in the framework of the vetting law, “Decisionmaking power in all cases appears to remain with the Independent Commission and Appeal Chamber” (§38), which “have the power to verify themselves the evidence gathered by the executive organs” (§62).
In a footnote, the Venice Commission even explicitly lists the extensive investigative powers accorded to the KPK and KA:
The evaluation institutions may interview people named in the declaration or others, and seek cooperation with other state or foreign institutions to confirm the veracity and accuracy of the disclosure, have direct access to all relevant government databases and files, if not classified as state secret, including the assessees’ personal files, statistical data, files selected for evaluation, self-evaluations, opinions of supervisors, training records and complaints, verification of complaints, disciplinary decisions against the assessee, property and land registers, bank accounts, tax offices, car registration data bases, border control documentation as well as any other relevant documents. They may order private individuals and companies to provide testimony or evidence in accordance with the law.
The secrecy clause
A more problematic point is the secrecy clause under which the DSIK working group would operate to perform its background check, namely that information “shall not be disclosed if it endangers the safety of a source or is a result of a condition from a foreign government.”
As the Venice Commission points out, “the re-evaluation institutions may lack the possibility of independent re-evaluation and would only be able to rely on the assessment/evaluation made by the National Security Authority” (§35).
In its amicus brief, the Venice Commission is very clear under which circumstances such secrecy may be invoked: “Thus, the rule of prohibition of disclosure may only be possible if the information in question is favourable to the assessee” (§35). In other words, the DSIK may not invoke its secrecy clause in case the information that is secret negatively influences the background check of the magistrate in question. The Venice Commission repeats this important limitation of executive power in its conclusion:
54. The use of such assessments for the purposes of the re-evaluation should be under the supervision and control of the [KPK] and subject to the appellate control of the [KA]. While the Venice Commission does not see any objection to the use of [the DSIK] working group, some concerns may be formulated concerning the use of working groups consisting only of security personnel on which no representative of the [KPK] itself appears to be included. Moreover, there may be also concerns about Article 39(2) last sentence, that information is not to be disclosed if it endangers the safety of a source or is the result of a condition from a foreign government. This is reasonable but only on condition that the information is favourable to the assessee.
Thus, the Venice Commission puts clear boundaries on the way in which the secrecy clause of the DSIK may be invoked to withhold the source of information from the judicial vetting bodies.
It is now up to the Constitutional Court to incorporate this important condition into its final ruling on the constitutionality of the vetting law.
