The Albanian political commentariat was abuzz when on May 21 the US and EU ambassadors tweeted, rapidly after one another, cryptic messages about the Justice Reform. US Ambassador Yuri Kim warned against “a back-room deal to kill justice reform,” while EU Ambassador Luigi Soreca stated that it “is not the time to reopen the discussion on its fundamentals.”
These tweets, in turn, received multiple, often mutually contradicting interpretations, depending on the political affiliation of the author. Prime Minister Edi Rama quoted Shakespeare, while PD leader Lulzim Basha warned against “legal and constitutional changes” to the Justice Reform implemented by the current Parliament (which he left last year).
Whatever the motivation behind Kim’s and Soreca’s tweets, it is true that the Justice Reform is under threat. And, most ironically, it is threatened by its own success.
Last week, the Special Anti-Corruption Court suspended Special Appeal Chamber (KPA) judge Luan Daci. Daci was one of the judges on the highest vetting institution, the KPA, enjoying a status equal to judge at the Constitutional Court. To understand the reasons for Daci’s suspension, and his possible conviction for falsifying documents, we need to return to 2017.
2017: Daci’s Election
On June 2, 2017, the Third Ad-Hoc Committee for the Verification of the Vetting Institution Candidates held its session evaluating candidates for the KPA. The session was headed by PS MP Vasilia Hysi (who had been a professor to many of the candidates, who addressed her in the hearings without exception as zysh, “prof”) and further contained Ervin Bushati (PS), Vangjel Tavo (LSI), Eduard Halimi (PD), Flamur Noka (PD), and Albana Vokshi (PD).
At the beginning of the meeting, Noka, who had also attended previous sessions of the First Ad-Hoc Committee and had a better overview of the candidates than the committee members, made a prediction that turned out to be true:
I’m sorry to make a prediction, I am not here to play the prophet, but I’m telling you: with this list that has been presented to us, Edi Rama, through the National Ombudsman, has predetermined everything. The product that the threesome of the majority [Vasilika Hysi, Ervin Bushati, Vangjel Tavo] will vote is the following: Albana Shtylla, member of the Central Election Commission proposed by the Socialist Party. Remember, she’ll win! Ina Rama, political prosecutor, a person close to Edi Rama and the Socialist Party that don’t miss an opportunity when a competition is opened so put her in like fancy-pantsy, such is the great love of the PS and Edi Rama for Ina Rama, and Sokol Çomo former Deputy Minister of the PS. I’m saying it today, the day this committee will vote, that will be the threesome elected by the majority. These will do the vetting of the justice system. Pretermined since the first day that the applications at the National Ombudsman started. I repeat to you: don’t consider me a prophet, but take it as something that will happen, because it’s true.
Indeed, what Noka predicted transpired, and Shtylla, Rama, and Çomo were all elected to the vetting institutions by the majority members of the Committee. This gives one a sense of the enormously charged political atmosphere – after the McAllister+ agreement, just before national elections – in which these hearings were conducted. They were also held at lightning speed, with dozens of candidates applying to the most important judicial positions of the century processed in a matter of hours by a sleep-deprived and election-distracted committee, under enormous foreign pressure to perform.
Also Luan Daci was interviewed during that session on June 2. He was mainly questioned about that fact that he had failed to mention any professional experience before 2000 on the CV presented to the Ad-Hoc Committee. This is the pertinent exchange from the records:
Bushati: The dates here are not very clear. Can you tell us briefly from which to which year you have worked, in which position […]
Daci: I have worked as a lawyer […] since March 20, 2000 when I took my license with the authorization of the minister, Mr Ilir Panda […] Mr Panda even waived the test for me, valuing my moral abilities, professional abilities, and my figure and approved me. […]
Bushati: Before that date?
Daci: Before that date before 2000? […] I have worked as judge at the Court of Tirana
Bushati: There are no dates here, that’s why.
Daci: They’re on my CV.
Hysi: They’re not. […] For the record, when did you start?
Daci: […] I started in September 1993, in the beginning I’ve been assistant judge, when we were examined in front of the state commission. Two days after I received my diploma I was nominated judge at the Court of Tirana, I was even nominated Deputy Chair at the Court of Tirana and the function was eliminated for economical reasons, I don’t, they’ve followed another model, I didn’t have any problem, and until December 24, 1997 I’ve been judge at the Court of Tirana. Just like the vetting law is coming out, then there was a law for the reorganization of the justice system. […]
Hysi: In the year 1997 you left, did you leave or did they fire you?
Daci: I left by resigning, because they didn’t allow me to register.
Hysi: From 1997–2000 what did you do?
Daci: With whatever work I could find.
The critical part here is Hysi’s question whether he resigned or was fired from his position as judge on December 24, 1997. If he had been fired, he would have been automatically ineligible for a position in one of the vetting institutions, following art. 6(1)(dh) of the Vetting Law:
Member of the Commission and judge of the Appeal Chamber shall be appointed the Albanian citizen who fulfils the following conditions: […] Has not been subject to the disciplinary measures of dismissal or any other disciplinary measure in force under the law at the time of application.
However, all of the information concerning his past position in the justice system was removed from Daci’s CV, no additional inquiries were made, and Daci was elected to the KPA.
2019: Sevdari’s Complaint
Fast forward to 2019. The KPA dismisses High Prosecutorial Council (KLP) member Antoneta Sevdari, overturning a decision by the Independent Qualification Commission (KPK) to confirm her. In May, Sevdari files a formal complaint against two of the KPA judges that dealt with her case, Ardian Hajdari and the presiding judge Luan Daci. Sevdari provides concrete evidence that Daci was rejected in 2016 (a mere year before his hearing in Parliament) from an application procedure for a Court of First Instance based on his dismissal from office based on a decision from December 24, 1997 of the High Council of Justice. The document detailing his dismissal is part of the public record.
Both the KPA and the ONM refuse to take any action, claiming Sevdari has no legal standing to file a complaint. Sevdari then turns to the highest court of Europe, the European Court of Human Rights in Strasbourg, claiming that she was denied the right to a fair trial, in part because of Daci’s illegal election. The ECtHR takes the matter into consideration.
In November 2019, the Special Anti-Corruption Prosecution (SPAK) is established. SPAK is the great hope of the internationals; finally, the institution that will catch the “big fish” has arrived. But this institution is filled not only with qualified prosecsutors whose independence is protected by law and who have given up a considerable portion of their personal and their family’s privacy to prosecute the highest levels of power, these special prosecutors have also seen many of their colleagues being unjustly dismissed by the vetting institutions, while others with questionable reputation were confirmed.
Then, in January 2020, KLP member Besnik Cani files a case against KPA member Luan Daci at SPAK, based on the same arguments previously made by Sevdari: he had been dismissed from his function as judge, and had been election in violation of the Vetting Law, committing falsification of documents by omitting his dismissal from the CV he presented.
SPAK immediately begins to investigate the case and concludes the obvious: Daci has been elected on false premises and he is suspended. Should he be convicted of falsification of documents, and permanently removed from his position as judge from the KPA, this will vindicate Sevdari and provide a strong argument that the KPA is indeed not a “an independent and impartial tribunal” as established by art 6(1) of the European Convention of Human Rights.
If Sevdari wins her case, and the KPK and KPA are deemed not to be independent and impartial tribunals, the entire basis and justification of the Justice Reform will be removed, and process will have failed. All dismissed judges and prosecutors will arguably have the right to be reinstated, and the financial claims against the Albanian state will be considerable. The internationals will have lost the last remaining credibility they think they have.
Because of the Sevdari’s case at the Strasbourg Court, the stakes of the judgment in the Daci case have now become much higher than a mere decision on a single man’s career. If Daci is dismissed and receives a criminal conviction, Sevdari’s victory at Strasbourg has become a strong possibility. If he is cleared, the government and international community can breathe a sigh of relief.
Thus, ironically, the SPAK and the Special Anti-Corruption Court, the two most precious and promising institutions of the Justice Reform, now pose the most serious risk to its survival.
There is a famous saying: The revolution eats its own children. If justice is victorious, the Justice Reform will rightfully fall prey to itself. But if justice once again will be denied, the Justice Reform will be saved from its own hunger – for now.
We will soon see whether the Justice Reform is truly the revolution it is claimed to be.
