Why the judicial reform in Albania will be more likely to have an incremental effect?
Widespread corruption in Albania has been the key term in all the progress reports by the EU and other international organizations (IOs) such as Freedom House and Transparency International. The 2013 EU Progress Report for Albania, for instance, states that corruption remains a serious problem and is spread in many fields, including the very institutions whose mission is to guarantee the implementation of the laws. Moreover, it stresses that corruption in the judicial branch remains a serious problem.
Many reports outline the close connections between judges and politicians, as well as political influence over the judicial branch. Over time, a system of impunity has established itself in Albanian society. Politicians are not sentenced for their wrongdoings, while many judges engage in corrupt practices.
Two years ago, the head of the EURALIUS[1] Mission in Albania, Joaquin Urias, declared that the “whole judicial system in Albania is corrupt” while, this year, investigative journalism played a major role in denouncing corruption in the judicial branch. BIRN has thus reported on several occasions on the level of impunity in the judiciary; recently they found that approximately 80% of Albania’s appellate judges could not provide an explanation regarding the wealth accumulated during their careers.
The dynamics behind closed doors - USA and the EU persist on reform passage
The much needed judicial reform in Albania was propelled by the pressure of the international community, namely the EU via its Delegation in Albania, and the USA via the US Embassy. The process took almost one year of negotiations between the government and opposition. The entire endeavor was rocky and the agreement on the final reform draft is perceived to be the work of the EU and US presence in Albania. Both the EU delegation Ambassador Romana Vlahutin and Donald Lu, the Ambassador of the US in Tirana, have made very strong statements, disposing of diplomatic subtleties.
US Ambassador Lu went so far as to threaten openly Albanian MPs if they refused to pass the reform. He even participated in a protest organized by some civil society organizations, during which he stated that the opposition (the Democratic Party) was bringing up new issues whenever an agreement was found. “Now, for the first time”, declared the Ambassador, “they (the DP) do not accept the vetting process, claiming it breaches the national sovereignty, even though DP leader Basha had himself stated that only the presence of the internationals in this process would guarantee the implementation of this reform”. Moreover, during this protest, he stated that the political leaders who would vote against this reform would face specific consequences. “I have provided to the political parties all the details in regards to these consequences originating from DC. I guarantee you that the consequences will be very severe and long-term”.
The EU, on the other hand, conditioned Albania by threatening that the country’s EU accession path would be frozen if the judicial reform were not to be passed. EU Ambassador Vlahutin was very clear in her public statements. She and the US Ambassador acted as a team in the negotiations, while she had quite a few meetings with students on this topic. Unlike the Ambassador, she was also attacked by the opposition media. One critical article presented allegations that she was hiding the source of her wealth during her career in the Croatian public administration.
Negotiations
The disagreements on the judicial reform draft were initially made transparent. However, the published information was neither processable, nor accessible for the public at large. During the final months, as the internationals were marking their first successes in the negotiations, the level of transparency was decreasing. Negotiations were happening literally behind closed doors. The Parliament unanimously passed the reform in the first minutes of July 21, thus modifying a third of the Constitution. Yet, the Albanian citizens and potentially the majority of the MPs were not aware of the new Constitution that was just adopted.
Another development that led to an increase in suspicion among the public in this matter occurred in the final days, when the much acclaimed international influence was reduced from decision making to monitoring in one of the crucial aspects of the reform, the vetting process. Furthermore, news from some Brussels meetings with Tanja Fajon (Vice-Chair of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament), mentioned that it would be “extremely difficult” to pass the judicial reform in Albania unless the main Albanian negotiators were not assured of their “immunity, when it comes to life, family and power base”. The final hours of the negotiations between the international community and the Albanian politicians lead to believe that indeed immunity might have been granted to them, particularly as all the main political leaders are alleged to have broken the law and engaged in corrupt practices during their mandates. Another problem revealed in this process were the declarations coming from Brussels that were not in accordance with those of the EU Delegation in Albania. Johannes Hahn, Commissioner for European Neighborhood Policy and Enlargement Negotiations, agreed to diminish the internationals’ role in the vetting process, while Ms. Vlahutin had publically opposed the idea until the last day of the negotiations.
Yet another reform institutionalized, without being socialized
The much lauded successful passing of the judicial reform leaves many questions unanswered, such as: how is this reform to be evaluated considering the social and the economic context? How does this reform fit into the current institutional framework in Albania, including civil society and the media?
Corruption in Albania exhibits all the patterns of collective action. It is not only the politicians, or bureaucrats/civil servants who are very likely to engage in corrupt practices. Untargeted corruption has led to a way of survival where people are more likely to engage in corruption than if they were in countries were institutions had not gone through such a rocky transition. When it comes to corruption in the judiciary, verdicts are made in favor of those who offer more money to the judges, or to the prosecutors and their civil servants, insiders who become operatives performing corrupt practices. Additionally, sociologically speaking, families in Albania are still strongly linked, and the love and solidarity for one’s family member surpasses the guilt or shame one may feel if they were to engage in drugs-related or other kinds of crime. People end up selling their houses, or taking out loans just to make the release of their family member possible.
Empirical studies are certainly needed to establish the degree of this phenomenon. Corruption theories relate it to the principal-agent (only the agent is corrupt), collective action (all are corrupt, the theory of Rothstein), or institutional/critical junctures (Acemoglu & Robinson). The current approach on the judicial reform in Albania fits under the principal-agent theory, although it is much more complex and technocratic. In this theory, the main tool is related to random audits. Its success conditions are related to transparency, publicized nature of information, agents sticking to principles etc.
I believe that, considering the Albanian context, the right diagnosis would have to lead us towards collective action approach in fighting systemic corruption/impunity and striving towards institutional consolidation. As such, this reform would be part of universal policies. Judicial reform in this sense would go in several directions to achieve direct impact, and indirect policies would be linked to education, human capital equality, media freedom, and the stimulation of a strong civil society. Consequently, it would lead to substantial reform in the political parties, where the problem seems to be essentially linked with all forms of corruption in Albanian institutions.
For the moment, this reform has encouraged many Albanians and internationals to believe that there will be one. Seen from the perspectives of corruption theories, the effects of this reform will only be incremental, among other issues, since they did not come from within. Albanian political leaders were not willing to initiate this reform or to sponsor it. Had this been the case, this reform would parallel the electoral reform, so as to guarantee free and fair elections and ensure transparency on party financing. As for the role of the EU – had it been realistic, it would have put pressure on the electoral reform and engaged in a constructive way towards Albania since 2001, when the negotiations on the Stabilization and Association Agreement started. From a policy analysis perspective, the process of developing a reform itself, should be as important as passing it. In this case, the public was neither informed about it, nor part of it.
