Project Management VII Research Paper

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Judicial Reform And Process Of Vetting In Albania Between An Effective Project And An Unsuccessful

Experiment Denitsa Dimitrova1

Abstract: Since Albania was granted candidate status in June 2014, the EU imposed a number of conditions to the country that it must fulfill to open accession negotiations. Over the past four years, the Albanian government has achieved some success, but the process of reforming the judicial system is still a major obstacle for the integration process.

Under intense pressure from the US and the EU, both the opposition Democratic Party and the government led by the Socialist Party agreed (July 2016) on the approval of a package of changes in Judicial reform. Despite the fact that Albanian parliament unanimously approved these changes, the re- evaluation of judges and prosecutors (or the so-called Vetting process) has triggered heated debate and controversial views on the political arena in Albania. The Vetting process1 is considered as a key to the political future of the country. However, while the Government claims the verification process will pave the way for talks with the EU, the opposition warns that the new rules will affect judiciary appointments and challenge the credibility of the new institutions.

The present paper aims at examining the process of Vetting in Albania by giving a brief chronology of the developments, describing the new major judicial institutions and reviewing the latest data from Independent Qualification Commission. Some of the vexing problems within the Albanian judicial reform are discussed reaching conclusions about the timing, sustainability and credibility of the new institutions. The possibility of making political decisions, contrary to the Constitution and laws of the country, most likely will put a negative perception on the whole judicial reform.

Keywords: Albania, Judicial reform, Vetting, Independent Qualification Commission

JEL: F02

I. INTRODUCTION

In June 2014, Albania was granted candidate status, but in strategy the EU imposed a

number of conditions2 to the country and their fulfillment is put as a prerequisite for the opening of the accession negotiations. Over the past four years, the process of reforming the judicial system is one of the main obstacles to the integration process.

After the fall of the totalitarian regime, there was no lustration in Albania, nor the people who worked in and controlled the judicial system during the previous (Enver Hoxha's) regime were subject to verification. The high level of corruption and the lack of integrity, accountability and transparency in the judicial system have also been sources

1 Denitsa Dimitrova, UniBIT Institute for Politics and Sustainable Development Bulgaria

of problems. These have been the main reasons behind the

restore citizens' trust in its courts. Under intense pressure from the US and the EU, the

govern ment3 and the opposition4 reached (July 2016) a mutual agreement on a package of changes in judicial reform. The package consists of 46 amendments of the Albanian constitution and a package of laws to create new judicial institutions. Despite the fact that the Albanian Parliament approved these changes by consensus, the re- evaluation of judges and prosecutors (also known as the Vetting process) has incited heated debates and controversial views on the political arena in Albania. The Vetting process is considered of key importance to the political future of the country. However, while the government believes it will pave the way towards negotiations with the EU, the opposition warns that the new rules will affect judiciary appointments and challenge the credibility of the new institutions.

It is quite often forgotten that the reform of justice, which is currently being implemented in Albania, is an experiment. The EU's approach to justice reform5 reflects the desire for crucial anti-corruption measures and similar actions previously have been supported by the EU in some Eastern European countries. However, there is no evidence that the reform of the judicial system implemented in Albania will actually bring the desired outcome - an independent, strong and uncorrupted judicial system.

Albania's justice reform consists of two main components: the reassessment of the entire judiciary (about 800 judges and prosecutors) by special investigating institutions elected by the Parliament, and the creation of a series of new judicial institutions. All candidates for these new judiciary institutions will have to be screened. The Vetting Law6 postulates that the re-evaluation process shall be carried out in three components: asset, background and proficiency assessment.

The Special investigation institutions are: Independent Qualification Commission (Komisioni i Pavarur i Kualifikimeve - KPK), Appeals Chamber (Kolegji i Apelimit - KA), Public Commissioner (Commisionerët Publik - KP) and the New judicial institutions are: High Prosecutors Council (Këshilli e Lartë Prokurorial - KLP), High Judicial Council (Këshilli e Lartë Gjyqësor - KLGj), Justice Appointments Council (Këshilli e Emërimeve ne Drejtësisë - KED) and High Inspectorate of Justice (Inspektorati i Lartë i Drejtësisë - ILD).

The aims of this study is to take a deep look at the process of Vetting in Albania by giving a brief chronology, describing the new major judicial institutions, reviewing the latest data (July 2018) from Independent Qualification

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Commission. Against this background some vexing problems in judicial reform are presented reaching conclusions about the timing, sustainability and credibility of the new institutions.

II. LAUNCHING AND DEVELOPMENT OF THE VETTING PROCESS

After many problems, such as the boycott of the opposition and delay for more than a year, the composition

shortly before the 2017 parliamentary elections. At an extraordinary parliamentary session (17.06.2017), all 27 members of the three vetting institutions7 were approved by 100 votes in favor and 2 against. Under the package the functioning of these three institutions is to be monitored by an International Monitoring Operation (IMO)8, composed by judges and prosecutors selected by different EU member states. According to this procedure, international observers do not hold a decision-making role in the vetting process. They have more a monitoring and supporting role in the overall process.9

The High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest (HIDAACI) had to begin its work in July 2017. Its task was to collect evidence of the property of judges and prosecutors as part of the investigation procedure10 by officially requesting data from several state institutions on the ownership and assets of 775 judges and prosecutors up to 16 January 2017. These data then was to be compared with the self-declaration forms submitted by the magistrates and collected into a final report which was to be evaluated by the KPK. The candidates for membership of the new judicial institutions KLP, KLGj, KED and ILD - awere the first to be checked.

After months of delay, the review of judges and prosecutors began in mid-November 2017 with the announcement of the first 47 files by the Independent Qualification Commission (KRK)11.

In a lottery principle, the KRK elect the judges from the Constitutional and Supreme Court and prosecutors who are to undergo reassessment. In that manner were selected 35 judges from the Constitutional and Supreme Court, 6 judges from the Tirana Court, 2 judges from the Criminal Court, and 4 prosecutors from the Tirana Prosecutor's Office. According to the rules each reassessed magistrate may

the Public Commissioners (KP) will file complaints if this is in the general public's interest.

Although it was unclear what happened to the 8 judges and 4 prosecutors' inquiries that began in November, KPK announced (01.12.2017) a new list of 57 judges and prosecutors to be screened12. All magistrates selected for this new batch belonged to the Supreme Court, the Constitutional Court, or applied for a post in the new institutions. The list of magistrates includes several figures who have been involved in recent changes to the prosecutor's office, including former General Prosecutor Adriatik Lalla, interim General Prosecutor Arta Marku and prosecutor Rovena Gashi.

Then in January 2018, the KPK published a second list of 36 names selected from the lottery, including KED candidates, prosecutors from the Chief Prosecutor's Office and directors from several regional courts and prosecution offices. A third list of 36 names with directors from several

regional courts and prosecution offices was published in March 16, 2018.

In its first decision on March 23, 2018, the KPK announced that Constitutional Judge Fatos Lulo has not passed the reassessment13. He was unable to justify all his assets and property, and was accused of not having paid taxes in the 1994-1997 period. The full KPK verdict had to be published within 30 days, after which Lulo could file a complaint in the Appeals Chamber (KA). Until KA's decision, Lulo is dismissed from his position and receive 75% of his salary. However, this means that the Constitutional Court remains without a quorum, and all the cases before it are therefore to be discontinued.

III. THE NEW JUDICIAL INSTITUTIONS

Justice Nominations Council (KED)

KED is one of the most important institutions arising from the reform of the judiciary in Albania. It will verify and assess the professional and moral qualities of candidates for the Constitutional Court and the Supreme Judicial Inspectorate. KED consists of 9 members, their term is one year, and members are selected by lottery and can serve more than one mandate. KED consists of 2 judges from the Constitutional Court, 1 judge from the Supreme Court, 1 prosecutor from the Prosecutor General's Office, 2 judges and 2 prosecutors from the Appellate Court and 1 judge from the Administrative Court14.

If the KED will not manage to be installed this year with 9 successfully vetted members, and to define and rank the candidates for the Constitutional Court, this task will transfer to the KED that will be elected next year (2019). Its member has to be vetted again and situation can be repeated. This could be the worst scenario. To avoid legal vacuum, in June 2018 the EU delegation in Tirana proposed to skip the vetting of KED members15. Such move would hinder the logic of the entire top-down verification procedure - the highest levels of the judiciary have passed the check before they start recruiting new magistrates.

Council (KLGj)

The KLP and KLGj will replace the current High Council of Justice. They will be the highest institutions to manage the nomination, promotion, and transfer of all judges (except those of the Constitutional Court) and prosecutors. According to the Constitution and legal framework16, the KLP will contain 11 members, 6 from the ranks of the prosecutors (which are currently being vetted), and 5 lawyers from the ranks of civil society, advocates, and pedagogues. These have earlier this year been elected by Parliament after three rounds of voting. The 6 members from the ranks of the prosecutors will be elected by the prosecutors of all levels17 at the Prosecution Office. The High Judicial Council (KLGj) has a comparable composition18.

Once the KLP is installed, it can nominate a new and legitimate General Prosecutor and take steps to install the Special Prosecution Office (SPAK) and the National Investigation Bureau (BKH).

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Data from the Independent Qualification Commission (KPK)

After the slow start of work, the KPK has increased its productivity. The initial pace of the committee was only 1-2 hearings a week, and in May it had more than two weeks of rest, but since the beginning of July there are 3-519 sessions a week. The KPK's progress is also evident in the number of announced decisions following the rising rate of hearings. It should be keep in mind, however, that some of the decisions

are appealed20 in the Special Chamber of Appeal (KA), which means that these are not the final figures. Until now, the KA has only confirmed the KPK's decision in the case of Adriatik Llalla21, whose study was interrupted, and Sulejman Tola, who resigned before the start of the investigation. In both cases, the complaint was filed by the Public Commissioner. Since the reform was introduced, 17 prosecutors and judges have left their positions22, but most have not taken this action within the time limit, so that they are subject to verification23.

Fig1.: KPK assessment results by institutions

At the end of July 2018, the KPK was opened an inspection of 176 dossiers, of which 60 were closed and only 27 were confirmed24. 39% of magistrates have passed the vetting, and 28% have been released from their posts. Based on these many preliminary figures, it is likely that a sufficient number of qualified candidates will be found, both for the High Prosecutor's Council (KLP) and for the High Judicial Council (KLGj), but that is not the case with the KED (Council for the Appointments in Justice).

IV. PROBLEMS OF JUDICIAL REFORM IN ALBANIA As a result of the slow pace with which the government

has adopted a number of laws and normative acts regulating the new institutions and the process of vetting, these new institutions have not yet been set up, despite the constitutional term that has expired more than a year ago (the institutions had to be created by February 2017). As a result, a vacuum occurs where old judicial structures can no longer function, and new ones are not yet created. This is also the reason why the judicial reform process in Albania is accompanied by a wide variety of issues.

One of these problems was that due to the lack of KLP, a Temporary General Prosecutor was elected from parliament,

in Albania. While there is not yet a functioning KLP, there will not be a new Prosecutor General, and the prosecution will be essentially under the political control of Edi Rama's government. Arta Marcu was elected25 (18 December 2017) by 69 votes in favor, 2 abstentions, and 2 against the post of interim Chief Prosecutor of Albania. She took an oath before Parliament during a session with smoke bombs, flying shoes, stolen voting cards, fake voices, and physical clashes between opposition MPs and the ruling majority26. This choice is part of the reform of the judiciary in Albania, but the problem comes from the fact that many analysts, as well as the opposition in the country, announce these actions of the government of Edi Rama as unconstitutional.

Following the amendments to the Albanian Constitution27 (July 2016) made in the context of judicial reform, it (Article 148) stipulates that the General Prosecutor (GP) must be elected by 3/5 of the votes in Parliament. The High Prosecutor's Council (KLP) approves and offers only three

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of candidates. The GP is elected for seven years and he has no right to take the position for second term. According to the same constitutional changes (Article 179), KLP should be created eight months after the entry into force of these changes. The constitutional amendments came into force on 11.08.2016, which meant that KLP had to be created by 11.02.2017. However, more than 18 months after these deadline it was not yet established.

In this circumstance, the SP, which is a majority in the current parliament, decided to elect a temporary GP with a simple majority who will serve in this post until the creation of KLP. The SP are aware that such elections can easily be attacked by the opposition, and for this reason Prime

international legal missions in Albania28 . In November 2017, Parliament requested the views of the international

Albania to interpret Albanian law and

confirming that a temporary GP could be elected by a simple majority of MPs present in Parliament if there was a quorum of 71 MPs (with a total of 140 MPs). This means that in theory the temporary GP can be elected with even 36 votes. Their statement was that the position of temporary GP practice was equal to the position of Deputy General Prosecutor, which also led to the possibility that he would be elected by a simple majority in Parliament, not to be vetted and his mandate not to be limited.

One of the first actions of the temporary GP Arta Marku, was the dismissal of the Director of the Decriminalization Directorate Rovena Gashi (29.12), which clearly showed that Marku would act as a full-fledged GP. According to the opposition, these actions are completely illegal and unconstitutional. DP leader Ljusim Basha said

he was rethinking the role of the opposition in parliament after Arta Marku's controversial election as General Prosecutor30. According to him, during the reign of Edi Rama, Albania has fallen into a deep crisis of democracy, in an institutional, constitutional and political crisis. He claims that Rama has actually taken over the Prosecutor's Office and has done this in violation of the Constitution with the aim of ending the investigation against several politicians close to him, Former Interior Minister Saimir Tahiri, Mayor of Durres Vangjush Dako, and Mayor of Elabasan Qasim Sejdani.

The balance of the situation regarding the election of a temporary GP in Albania shows that both sides - ruling and opposition - have lost. The Socialists missed an excellent opportunity to show that they respect and complies the rules, showing unnecessary greed for power. With its inflexible, Edi Rama contributed to the fiasco in parliament, reducing the credibility of judicial reform to minimum. At the same time, the opposition failed to block the decision of parliament, which was obvious from the beginning. It has failed to show itself as a reliable and credible opposition and to give a clear message to Albanian citizens.

According to some analysts, credibility in international legal missions and diplomats, which must be an undisputed defender of the legal and constitutional basis, was compromised and the reform of the judiciary should not be done at the cost of violating the constitution of a country.

Another painful problem of judicial reform in Albania is the state of the Constitutional Court (CC). After all members of the CC have been vetted by the KPK, there are only two judges left - Vitore Tusha and Bashkim Dedja. The Independent Qualification Commission (KPK) dismissed four judges (Gani Dizdari, Fatos Lulo, Altina Xhoxhaj, Fatmir Hoxha) and three other (Besnik Imeraj, Sokol Berberi, and Vladimir Kristo) resigned31.

According to the Constitution, 9 members of the Constitutional Court are elected by the President (3), by the Parliament (3) and by the Supreme Court (3). However, the Council for Appointments in Justice (KED) also appoints a set of candidates. Thus, while KED is not set up and its candidates have been undergoing the vetting, the vacancies in the Constitutional Court will remain, and the highest court in the country will remain dysfunctional32.

The Supreme Court (SC) is in a similar predicament. In its composition remain only 9 of the 19 judges remain. As a result, the SC has a deficit of nearly 24,000 cases33. This means that the judicial system in Albania enters in the

All this opening the possibility of a series of such cases at the European Court of Human Rights (ECHR) , which is likely to cause millions of Euros in damages to the Albanian state. Judges from the Supreme Court are appointed by the President on a proposal from KLGj. The absence of KLGj means a non-operating SC.

Meanwhile, as the entire vetting process will lead to a reassessment of all magistrates, prosecution and courts will not be fully operational, and there will be more job vacancies in them. It is not guaranteed that there will be enough candidates who have passed the verification process to fill all positions. In addition, all new appointees will need to have completed the School of the Magistrature (SM, Shkolla e Magjistraturës)35. The problem is that KLP and KLGj not only appoint graduates, but also determine the number of students entering the SM in each calendar year. As a result, not only the 16 magistrates who graduated in 2018 will be remain without job, but the SM will not be able to accept new 25 applications for the academic year 2018- 1936 . In relation to this problem, the opposition blocked the work of the parliament twice (10 July and 23 July) and did not allow the adoption of a correction to the Law related to the SM.

It is most likely that the Albanian Parliament will adopt a

next academic year without the approval of KLP and KLGj. -

for example, to fill vacancies in the Constitutional Court or

an absolute majority in parliament, will get the opportunity to guide the judicial reform.

V. CONCLUSIONON

Currently, many candidates for new institutions (KLP, KLGj, KED and ILD) have to be vetted by KPK. This leads to the conclusion that probability no one of these institutions will be created by the end of the year. The KLP has the greatest chance to be set up, but this still means months

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without a General Prosecutor. The absence of KED and KLGj means at least one year without a functioning Constitutional Court and a year in which cases in the Supreme Court will continue to accumulate. According to some analysts, reform of the judiciary in Albania is more likely to continue until the next parliamentary elections in 2021.

The delay in creation of KLP and KLGj not only directly affects the current lawsuit in Albania, but in the near future it is likely to affect the proper functioning of the whole judicial system after completion of vetting and will raise doubts about its independence from the current political power. The damage caused by the unsuccessful implementation of the judicial reform in Albania can permanently weaken the judiciary for years to come.

NOTES AND REFERENCES

[1.] The process of assessment and verification of eligibility [2.] Chankov, Georgi. 2018. The European Union and the Countries of

XI, issue 2/2018, See also Key findings of the 2016 Report on Albania - http://europa.eu/rapid/press-release_MEMO-16-3636_en.htm

[3.] Led by the Socialist Party of Albania (Partia Socialiste e Shqipërisë) leader Edi Rama

[4.] Democratic Party of Albania (Partia Demokratike e Shqipërisë) leader Lulzim Basha

[5.] EU Approach to Justice Reform in Southeastern and Eastern Europe - http://www.crpe.ro/wp-content/uploads/2012/10/CRPE-book.pdf

[6.] Law no.84/2016 on the Transitional re-evaluation of judges and prosecutors in the Republic of Albania - http://www.euralius.eu/index.php/en/library/albanian- legislation/send/98-vetting/1-law-on-transitional-re-evaluation-of- judges-and-prosecutors-en

[7.] Independent Qualification Commission (Komisioni i Pavarur i Kualifikimeve - KPK), Appeals Chamber (Kolegji i Apelimit - KA) and Public Commissioner (Commisionerët Publik - KP); Parliament Votes Vetting Institutions - https://exit.al/en/2017/06/17/parliament- votes-vetting-institutions/

[8.] Launched in February 2017 and headed by Genoveva Ruiz Calavera; [9.] Clarifying the role of the ONM Management Board -

https://eeas.europa.eu/sites/eeas/files/imoexplanatorynotecorrigendum1 .03.2017.pdf

[10.] ILDKPKI Starts Gathering Evidence for Vetting Commissions - https://exit.al/en/2017/07/10/ildkpki-starts-gathering-evidence-for- vetting-commissions/

[11.] http://kpk.al/rreth-nesh/ http://kpk.al/legjislacioni_3/#tab-1-0-baza- ligjore

[12.] -

evaluation procedures for the subjects of the list of priorities due to the law are initiated - http://kpk.al/2017/12/12/njoftim/

[13.] First judge in Albania dismissed under vetting law - http://www.xinhuanet.com/english/2018-03/24/c_137061215.htm

[14.] KED Vetting and the Constitutional Court - https://exit.al/en/2018/07/26/ked-vetting-and-the-constitutiona- court/http://www.whuced.com/show/?id=165&siteid=3

[15.] EU Delegation Proposed to Skip KED Vetting - https://exit.al/en/2018/06/26/eu-delegation-proposed-to-skip-ked- vetting/

[16.] [17.] KLP (art. 105(1)): Three (3) of the elected prosecutors shall be first

instance prosecutors. At least one of them shall be a prosecutor of a prosecution office attached to a court of first instance outside Tirana. Two (2) of the elected prosecutors shall be prosecutors of the prosecution offices attached to courts of appeal, including the Special Prosecution Office for combating corruption and organized crime. At least one of them shall be a prosecutor of a prosecution office attached to a court of appeal outside Tirana. One (1) of the elected prosecutors shall be a prosecutor attached to the General Prosecution Office.

[18.] KLGj (art. 7(1)): Three (3) of the elected judges are first instance judges. At least one of them is a judge of first instance in a court

outside Tirana. Two (2) of the elected judges are appellate judges. At least one of them is judge in an appeal court outside Tirana. One (1) of the elected judges is a judge at the High Court.

[19.] In the first week of July 2018 KPK have been heard Admir Thanza, Kostaq Beluri, Adriatik Cama, Gani Dizdari and Tom Ndreca and in the second week Artan Zeneli, Nertina Kosova, Antoneta Sevdari, Arben Nela, and Ervin Metalla have been scheduled.

[20.] Judges Fatos Lulo and Fatmir Hoxha from Constitutional Court and Besim Trezhnjeva from Appeal Court in the meantime are appealing their dismissals.

[21.] Appeal Chamber: No Vetting for Former General Prosecutor Llalla - https://exit.al/en/2018/06/11/appeal-chamber-no- vetting-for-former-general-prosecutor-llalla/

[22.] Vetting, the Numbers So Far - https://exit.al/en/2018/04/27/vetting-the-numbers-so-far/

[23.] Officials Resigned from the Judiciary So Far - https://exit.al/en/2017/07/28/7-officials-resigned-from-the- judiciary-so-far/

[24.] Vetting Picks Up Steam - https://exit.al/en/2018/07/16/vetting- picks-up-steam/

[25.] Albania Elects Temporary Prosecutor Amid Parliament Clashes - http://www.balkaninsight.com/en/article/albanian-new- temporary-prosecutor-elected-amid-tension-12-18-2017

[26.] - https://www.euronews.com/2017/12/31/albania-s-judicial- reforms-all-but-go-up-in-smoke

[27.] Constitution of the Republic of Albania - http://www.euralius.eu/index.php/en/library/albanian- legislation/send/9-constitution/178-constitution-of-the-republic- of-albania-en

[28.] The Impending Political Crisis over the New General Prosecutor - https://exit.al/en/2017/12/07/the-impending-political-crisis- over-the-new-general-prosecutor-exit-explains/

[29.] General Prosecutor To Be Nominated by a Simple Majority? - https://exit.al/en/2017/11/22/general-prosecutor-to-be- nominated-by-a-simple-majority/

[30.] Basha: OPDAT & EURALIUS Made a Mistake - https://exit.al/en/2017/12/27/basha-opdat-euralius-made- mistake/

[31.] Constitutional Court Fails to Pass Vetting, Only Two Judges Left - https://exit.al/en/2018/07/16/constitutional-court-fails-to- pass-vetting-only-two-judges-left/

[32.] KED Vetting and the Constitutional Court - https://exit.al/en/2018/07/26/ked-vetting-and-the-constitutiona- court/

[33.] - http://top- channel.tv/2018/04/25/kaos-dhe-pushime-ne-gjykaten-e-larte/

[34.] Consequences for Vetting - https://exit.al/en/2018/09/24/gashi- gina-ecthr-lawsuit-will-have-serious-consequences-for-vetting/

[35.] rën, Sokol Sadushi: Nuk është e bllokuar shkolla, por sistemi i drejtësisë - https://www.balkanweb.com/ngerci-me-magjistraturen-sokol- sadushi-nuk-eshte-e-bllokuar-shkolla-por-sistemi-i-drejtesise/

[36.] The Internationals Have Lost the Plot of the Justice Reform - https://exit.al/en/2018/07/25/the-internationals-have-lost-the- plot-of-the-justice-reform/

Volume XI Number 2 June 2018

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