The vetting of judges and prosecutors: An Albanian experience

Abstract

This contribution discusses some aspects of the judicial reform and re-evaluation process of judges and prosecutors in Albania. Although the focus is on the vetting law, some attention is also paid to the reform in general and its main pillars. The vetting process is based on three criteria: assets, background and proficiency assessment. The author, a civil society activist, comments extra-officially the vetting developments and effects on the judiciary, with the final aim of ameliorating the independence and professionalism of the judicial system. She argues that the vetting may be seen as the starting point of a long process which will ensure the functioning of the rule of law in Albania, but which itself entails some systemic problems in the domestic judiciary.

1. General remarks

In autumn 2014 the European Commission’s Progress Report[1] highlighted for several times in a row the need for concrete interventions in the judiciary, as an indispensable measure to fight the high level of corruption in the system. Thus, the Albanian Assembly established the Special Parliamentary Commission on the Judicial Reform[2], which prepared the main analytical document underlining numerous problems in the judiciary, and emphasizing the necessity of legal amendments with the functioning and consolidation of the rule of law[3] as its final aim. The high level of corruption in the judiciary impedes its functioning, and has affected the public trust toward it[4]. Moreover, this situation has prevented further progress in terms of the European integration of the country. Three out of five priorities set by the European Commission were related to the judiciary. Namely, these priorities were the integral reformation of the judiciary, the fight against corruption and the protection of human rights and fundamental freedoms[5].

The analytical document delivered by the Parliamentary Commission on the Judicial Reform envisaged seven pillars in which there was a need for amendments. Concretely, the Constitution, the Law on the Organization of Judicial Power, criminal justice, public legal education and legal studies, legal services and professions, funding and infrastructure and, last but not least, legal provisions in the fight against corruption[6].

Except the existence of corruption, which entailed negative effects on the entire system, there was a need to take measures regarding some constitutional problems caused, among other factors, by constitutional amendments made in 2008. Moreover, the malfunctioning of high level judiciary institutions has caused different systemic problems.

According to a number of surveys conducted by civil society organizations, 76% of Albanian citizens believed that the judiciary was corrupt[7].  

Finally, the amendments to the Constitution were approved unanimously by the Members of the Parliament on July 2016. This article will thus shed light on some of the most important legal changes derived from the reform.

Firstly, there was a need to amend the operation and election of Constitutional Court judges. The jurisdiction of this court was previously limited to the constitutional review of the laws approved or adopted by the Assembly, and the right to a fair trial concerning individual cases. In addition, the election criteria for judges were not well defined, and the Assembly had full control over the elections. After the legal amendments regarding the implementation of the checks and balances principle, the Constitutional Court has been granted a wide jurisdiction[8], since among others it can now review even constitutional amendments.

In addition, the malfunctioning of the High Council of Justice which was in charge of managing all first-instance and appeal courts entailed several problems in the system, such as the failure to promote values and professionalism and lack of effective organization. This institution will be replaced with the High Council of the Judiciary (HCJ) which will have 11 members, namely 6 judges and 5 non-judges, one of whom a civil society representative. This institution will be in charge of electing Supreme Court members, the annual evaluation of judges, career promotion, disciplinary measures, finance management etc.[9]

Moreover, the constitutional reform reflected the decentralisation of the prosecution which was previously led and managed by the General Prosecutor. The High Prosecutorial Council will be composed according to the same logic as the HCJ, and will be in charge of the election of the General Prosecutor and the prosecutors of the Special Anticorruption Unit, and will have the same duties and responsibilities like the HCJ, but for the prosecution.

Another important novelty of the judicial reform in Albania is the constitution of the Special Anticorruption Unit[10] and the Anticorruption Investigation Bureau, which will be composed of national and international prosecutors engaged in the fight against corruption undertaken by high level state officials. Last but not least, one of the crucial laws of the “reform package” is the law “On the Re-Evaluation of Judges and Prosecutors in Albania”[11], commonly known as the “vetting law”. As I will discuss below, the vetting is the crucial segment of the reform, which has entailed a domino effect in the entire system.

2. The vetting: An Albanian experience

The existence of a high level of corruption in the judiciary made it necessary to find a sui generis solution to resolve this problem. As a consequence, and in line with the constitutional amendments, as above mentioned, the Assembly adopted the so-called vetting law. Its purpose is to determine specific rules for the re-evaluation of all judges and prosecutors in duty with the final aim to guarantee the functioning of the rule of law and the independence of the judiciary[12]. As the reform itself, the vetting law aims to rebuild public trust in the judiciary.

The re-evaluation process will be based on three criteria - assets, background and proficiency assessment. In order to understand how the vetting will be conducted, here I will explain each of these criteria.

Regarding the asset assessments, all judges and prosecutors in duty are obliged to fill out and deliver an official declaration of assets and all relevant documents justifying their authenticity and lawfulness to the High Inspectorate for the Declaration and Audit of Assets (HIDAAC). The aim of this criterion is the declaration and audit of assets, and proving the legitimacy of their source. Individuals related to the subject of the re-evaluation are also part of this assessment, namely, the spouse, cohabitant, adult children, as well as any other person mentioned in the family certificate as provided to the office for civil registry by the commissioners, public commissioners, or judges for the period of re-evaluation. HIDAAC has the duty to certify the asset declaration and to conclude if it is in accordance with the law, derived from legitimate financial sources. It needs to ascertain if the person lacks legitimate financial sources to justify their assets; is hiding their assets; or has made a false declaration; or is found in a situation of conflict of interest^[13]. As prescribed by law, the starting point of the asset declaration is the date when the judge or prosecutor was appointed to duty.  

The final aim of the second criterion of the background assessment is to identify and verify whether the assessee has (or has had) inappropriate contacts with persons involved in organized crime. Intelligence agencies will be responsible for helping the vetting bodies undertake this assessment^[14]. According to the provisions made in the Annex to the Constitution, the starting date for background assessment declaration is January 1^st 2012^[15]. However, it will not be easy to undertake an assessment based on this criterion. The law provides that even random photos of the re-evaluation subjects with persons with criminal records will be considered evidence.  

The third vetting criterion is the proficiency assessment, which aims to evaluate if the vetting subjects have performed their ethical and professional activities in compliance with the legislation in force. The re-evaluation period for it starts from January 1^st, 2006 for subjects who have had more than 3 years of professional experience or, for those with less than 3 years of experience, from the moment in which they started their mandate. This evaluation will be based on the performance of duties as prescribed by the law “On the organization and functioning of the prosecution office in the Republic of Albania”.^[16]

There are three possible results of the vetting, after the assessment of all the three  abovementioned criteria. The subject can be evaluated as competent, when s/he meets the three criteria, deficient when they demonstrate unacceptable quality of work, poor judgment, failure to routinely observe the rights of litigants or victims, or is inefficient or ineffective, or inadequate, having failed to satisfy one or all the criteria.

As stipulated by Article 5 of the law, there are several vetting institutions. The Independent Qualification Commission (IQC) deliberates in the first instance and is composed of 12 members, divided into 4 panels. The Appeal Chamber, with a jurisdiction to review appeals against the IQC decisions, is a specialized chamber of the Constitutional Court composed of 7 judges. The judges of the Appeal Chamber have disciplinary jurisdiction over all Constitutional Court judges and the members of all justice governing institutions. Moreover, the Appeals Chamber also has jurisdiction over the appeals against decisions of the High Judicial Council, High Prosecutorial Council, as well as the High Justice Inspector, imposing disciplinary sanctions against judges, prosecutors and other inspectors respectively[17].

The IQC and the Appeal Chamber are considered juridical institutions alias courts, even though they are not the classic model of it. Meanwhile, the Public Commissioners represent the citizens’ interest before the Appeal Chamber and can appeal against the decisions of IQC. The re-evaluation subjects are entitled to lodge an appeal against the decision of the Appeal Chamber before the Strasbourg Court.  

The vetting process is assisted by the International Monitoring Operation (IMO), which will monitor and oversee the entire process of the re-evaluation, and is led by the European Commission. Among other things, the IMO is entitled to file findings and opinions on issues examined by the Commission and the Appeals Chamber, and contributes to the background assessment. In those findings, the International Observers may request that the Commission or the Appeals Chamber consider evidence or present evidence obtained from state bodies, foreign entities or private persons, in accordance with the law. Moreover, they can submit recommendations to the Public Commissioners to lead appeals against IQC decisions[18].

An important role in the vetting is attributed to the Albanian citizens themselves, who can give a contribution in the re-evaluation process. Citizens can denounce corruption though an official form approved by the vetting bodies and submit it online or offline. These institutions are obliged by law to check the information received. Meanwhile, the citizens are protected by the whistle-blower law[19]. Another interesting provision of the law is made in Article 54 which stipulates that a person who has perpetrated the criminal offence of corruption in conjunction with a re-evaluation subject has the right to address the responsible prosecution office in order to investigate this case, and will be granted the status of justice collaborator. In this case the collaborator of justice shall not be prosecuted, but s/he has the duty to give a detailed testimony[20]. According to IQC declarations, up to now the majority of the citizens have misunderstood these provisions, considering them as an opportunity to change the final decisions delivered by the courts[21].

3. Implementation challenges

Even though the law was adopted at the end of August 2016, after several obstacles such as two pleas before the Constitutional Court, in late 2017 the vetting bodies drew the lot for the first 36 re-evaluation subjects to be vetted. Priority was given to high-level court judges and candidates for the HCJ and HPC. Now, more than six months after the start of the re-evaluation procedure, we can shed some light to this process so far.

The vetting is on delay. I am taking into account here the time since the hearings have started. It entailed a domino effect in impeding the establishment of almost all institutions and processes of the juridical reform itself. During this period the IQC delivered only a few hearings. Meanwhile, after the declarations by civil society representatives, the Commission planned to re-organize its schedule, and hold numerous hearings per day[22]. In other words, the vetting caused problems in the constitution of the Justice Appointments Council, HCJ, HPC, the court and special prosecution unit for combating corruption and organized crime and, last but not least, the election of the General Prosecutor. As mentioned, all possible candidates who want to be elected in these institutions should previously be vetted.

According to civil society organizations reports[23] there is a need of transparency of the subsidiary bodies which assist the IQC and Appeal Chamber during the re-evaluation process. Moreover, more attention should be paid to the background and proficiency criteria of the re-evaluation procedure, because it seems that all the attention is focused on the asset assessment.

The most serious problem entailed by the results of the vetting so far is the de facto non-existence of the Constitutional Court. After the re-evaluation of the judges of this court, 7 out of 9 proved to be inadequate to be part of the judiciary. This is an unprecedented situation which has opened the floor for possible violations of the Constitution and a threat to the rule of law in the country. The Supreme Court is going through this situation, because now this court has in duty 4 out of 19 judges[24], and it is almost impossible to deliberate in public hearings because of the quorum.     

In conclusion, I would like to underline that, even though, as the Venice Commission emphasized in its amicus curia[25], the re-evaluation processes is a necessary measure for fighting corruption in the Albania judiciary, the vetting bodies should accelerate the re-evaluation process and thus open the floor to other reform effects. However, one should always bear in mind the fulfilment of fair trial standards. The need to fight corruption in the judiciary is no exception in this respect.

Bibliography

Legislation:

Law no. 8417 date 21.10.1998 “Constitution of the Republic of Albania”, as amended.

Law no. 84/2016 “On transitional re-evaluation of judges and prosecutors”.

Law no. 8577/2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania”, as amended.

Law nr. 8737/2001 “On the organization and functioning of the prosecution office in the Republic of Albania”, as     amended.

Law no. 95/2016 “On the organization and functioning of institutions for combating corruption and organized crime”.

Law no. 115/2016 “Governance institutions of the judiciary”.

Law no. 60/2016 “On whistleblowing and whistle-blower protection”.

Albanian Assembly Decision no. 96/2014.

Albanian Assembly “Analysis of the juridical system in Albania” January 2015.

Other relevant materials:

European Commission. (2014). Albanian Progress Report, pg. 2 https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2014/20141008-albania-progress-report_en.pdf [consulted on 25.07.2018]

European Commission for Democracy through Law (Venice Commission). Opinion no. 868/2016 “Albania: Amicus Curiae Brief for the Constitutional Court on the Vetting Law”. http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)036-e [consulted on 25.07.2018]

Muiznieks, N. (2014). Council of Europe High Commissioner on Human Rights. Report on Albania 2013.

IDRA. (2016) Korrupsioni në Shqipëri: perceptime dhe përvoja 2015-2016. http://www.idrainstitute.org/files/reports/Corruption%202016/Gjetjet%20Kryesore%20Studimi%20i%20Korrupsionit%20IDRA%20_Grafike.pdf  [consulted on 25.07.2018]

http://kpk.al/2018/01/09/njoftim-per-shtyp/ [consulted on 25.07.2018]

Albanian Helsinki Committee. Monitoring report of the vetting in Albania (Draft). June 2018.

https://www.ahc.org.al/vettingu-ne-vezhgimin-e-komitetit-shqiptar-te-helsinkit/  [consulted on 25.07.2018]