Albania is currently reforming its judicial system. Many corrupt judges and prosecutors have already had to leave their posts. The reform promises far-reaching changes. This makes it the subject of domestic power struggles.
The judicial reform is intended to depoliticize the authorities, create an independent judiciary and build up public confidence in the legal system. To this end, new anti-corruption institutions are being set up and the criminal justice system is being decentralized. At the core of the reform is the so-called vetting process. This involves checking all judges and prosecutors for professional qualifications, assets and possible connections to organized crime. Every judicial officer is screened and must answer questions posed by a commission. Those who, for example, cannot prove the lawful origin of their property are suspended. Family members are also investigated.
A successful implementation of the reform is one of the key criteria in order to start the EU accession talks. It is required because a systematic depoliticization of the judicial structures has never taken place. Even after the end of the communist dictatorship, every government exerted its influence on the judicial system. Moreover, corruption is pervasive. So far, criminals have been able to influence sentences using bribery. It’s not surprising that the population’s trust in the judicial system is low.
In July 2016, all 140 MPs voted for the necessary constitutional change. It was a rare moment of unity in the Albanian parliament, whose dominant parties (PS and PD) have been irreconcilably opposed to each other since their foundation. Shortly afterwards, the reform began with the resignation of several high-ranking judicial officials. The legal framework allowed them to leave the system voluntarily. The resignations were considered a clear indicator of the success of the process. A spirit of optimism prevailed. A magistrate who has successfully undergone the process reports: “The process came at the right moment. I was totally fascinated.”
Accusations and Smoke Bombs
But even before the first candidate was vetted, the tensions between the two parties became apparent. Since the re-election of Edi Rama in June 2017, his party (PS) has ruled with an absolute majority and was no longer dependent on its coalition partner (LSI). Rama used the room for maneuver when appointing the new Attorney General. According to the new legal situation, the High Prosecutorial Council (KLP) should have drawn up a list of candidates. As the body had not yet been created at that time, the government resorted to a controversial method: It elected the public prosecutor Arta Marku as the provisional representative with the votes of the ruling party in parliament. Because Marku’s career had begun in Shkodër, while the current PS politician Ulsi Manja was the chief prosecutor there, the opposition accused her of being close to the ruling party and regarded her appointment as an attempt by the government to gain control of the public prosecutor’s office. PD leader Lulzim Basha called the procedure a “coup d’état”. Thus, a destructive narrative was born: The government was abusing the reform to influence the judicial appointment. However, instead of convincing arguments, Basha only provided insults. He continuously referred to Marku as Rama’s “puppet” and “slave”.
Some opposition members tried to unsuccessfully boycott the election by standing in the middle of the hall and lighting smoke bombs. Nevertheless, the vote took place. Video recordings from parliament show the new Attorney General surrounded by red wafts of mist. The scene symbolizes the subsequent politics: While the PS tried to push through the reform under all circumstances, the opposition tried to prevent exactly that.
The Vetting Commission made the first decision in March 2018 with the dismissal of Fatos Lulos. The constitutional judge could not justify assets of several hundred thousand euros. Since then 276 cases have been processed. Only 113 people were confirmed in office and 101 were dismissed – the majority because of unjustified assets. In addition, 35 officials resigned, 22 cases were closed and two officials were temporarily suspended.[i] To ensure correct decisions, several control bodies were implemented: A Qualification Chamber as an appeal body and two Public Commissioners. In addition, an International Monitoring Mission (IMO) monitors and advises the institutions. So far, the Chamber of Appeal has reviewed 63 cases and amended 15 decisions.[ii]
But the large number of dismissals had profound consequences. Because the mandates of some judges ended at the same time, only one of nine judges remained at the Constitutional Court in the meantime. Even at the Supreme Court, only one of 17 judges was confirmed in office. This meant that the two highest courts in the country were unable to act.
While one official after the other left the judicial system, the old feud between PS and PD intensified. Since the parliamentary elections in June 2017, allegations of vote-rigging and vote-buying have increased. The PD diagnosed a complete failure of the democratic structures: No free elections could take place under Rama. Only riots could overthrow the prime minister. Hence, the opposition deputies resigned and refused to participate in the local elections in June 2019.
Trying to boycott parliamentary work through absence has a long tradition in Albanian politics. Time and again, opposition members (of both parties) stayed away from the plenary session. This time the remaining parliamentarians continued their work after a short interruption. Following through on their word, the PD organized protests and called for Rama’s resignation. There were several violent clashes between police and demonstrators. Thereupon President Ilir Meta responded. He canceled the election date on the grounds that he wanted to avoid further confrontation. However other motives have been suggested, due to his attachment to the opposition party LSI, that he chaired and that is led by his wife today.
The parliament overruled Meta’s decision and the local elections were held without PD and LSI. In many communities only one candidate competed. Consequently, the PS won almost nationwide. The opposition refused to recognize the results and portrayed Rama as an autocrat at the head of a one-party state. President Meta called for new elections, whereupon the government initiated impeachment proceedings against him. Everyone involved accused each other of anti-democratic behavior. As the Constitutional Court was no longer functional at this point, the validity of the election could not be assessed. Also, the President’s dismissal was impossible without the Constitutional Court. The Venice Commission later rebuked both sides. The President had exceeded his competences, but the impeachment procedure was not proportionate.[iii]
Sharks and Fishes
The constitutional crisis became one of the main challenges in the judicial reform. Not least because it provided material for the united opposition. Now it was said that Rama would abuse the paralyzed courts when passing unconstitutional laws, in the absence of the opposition and the Constitutional Court.
Did the reform fall victim to its own success? Has the level of corruption been underestimated? No, says political scientist Ledion Krisafi, vacancies were also expected at the highest level. After all, it also applies to Albania, “the fish rots from the head down”. In the end, the reform is fulfilling its purpose.
In contrast, the assessment of the judicial officer quoted above is less positive. Her initial optimism was followed by doubts: At some point she noticed that some “small fish” had been dismissed, while some “big sharks” managed to escape the assessments. The fact that she wants to remain anonymous suggests that the politicians have not yet lost their influence. She fears that the statements could harm her career.
Her statement fits in with the opposition’s narrative. The relevant media call it the commissions “double standard”. Can the multi-stage process be manipulated in the sight of international observers? For Krisafi it is clear: “Here we are on the level of rumors.” In fact, some hard-to-believe stories are circulating through the Albanian media landscape, where the reporting is as polarized as politics. Disinformation mostly aims to defame the political opponent. This leads to widespread distrust. At the same time, it makes it possible to label every criticism as “Fake News” and disqualify critics as opponents.
Repressive Tendencies and Destruction Tactics
Prime Minister Rama counters this development with a repressive policy. In December 2018, the government published a draft law aimed at tightening control over online media. The Audiovisual Media Authority (AMA) should be empowered to require online media to remove content from websites, to impose fines where applicable or to delete websites. Critics saw this as the beginnings of a censorship agency and feared increasing self-censorship by journalists. It can be assumed that the political influence harms the judicial reform. After all, without independent reporting, neither corruption can be combated nor the trust of the population won. Instead, Rama's proposal only strengthened the image of him as an autocrat.
When filling the vacancies at the Constitutional Court, the power struggle entered the next phase. According to the constitution, the judges would have to be appointed by the Parliament, the President and the Supreme Court on rotation basis. As the Supreme Court had no quorum, Rama once again came up with an alternative solution: Parliament and the president were each to appoint two candidates. Opposition leader Basha then spoke again of a “coup d'état”, while Meta tried to block the procedure by nominating Besnik Muçi, the only candidate who had not yet passed the vetting process. He then declared the procedure unconstitutional and refused to appoint a second judge. Later, exactly that happened which Meta had predicted or at least accepted. Muçi was dismissed by the Special Appeal Chamber. Thereby the Constitutional Court lost one of the few judges. The reactions made Basha and Meta increasingly implausible. Having complained about the absence of the Constitutional Court, they now worked against its appointment.
The behavior reflects the prevailing political culture, which is characterized by friend-foe thinking and mostly aims to harm the political opponent. The reform promises success, that’s why it is attacked. It is not the cause but the object of the power struggle.
Delaying the reform is an effective means to harm the government. First, the government’s failure to meet deadlines can be interpreted as a lack of political will. Secondly, it means that unvetted judges continue to hand down sentences – as in the case of Samir Tahiri. In October 2017, the prosecutor’s office filed charges against the then Minister of the Interior for alleged involvement in drug trafficking and involvement in a criminal organization. In September 2019, the court sentenced him to three years and four months probation for abuse of office and acquitted of all other allegations due to lack of evidence. Because at that time none of the deciding judges had been vetted, the verdict had a negative connotation.
In any case, the public perception of the reform is ambivalent. When asked about the vetting process, the keyword “show” is often used to dismiss the topic. After decades of disappointment, a fair justice system seems difficult to imagine. At the same time, it is clear that the reform is obligatory for the long-awaited EU accession.
To date, only one third of all judicial officers have been re-evaluated. “We are still in the old system”, states Krisafi. Therefore, it is still too early to make a final assessment. All hope now lies in SPAK. The newly established independent authority for the fight against corruption and organized crime will also investigate high-ranking politicians. SPAK’s success could convince the population of the effectiveness of the reform. But initially the establishment of the authority was delayed several times due to a lack of applicants. One of the few was Besnik Muçi. With his nomination as Constitutional Judge, Meta reduced the pool by one candidate. Coincidence? In the end, the government decided to establish the authority with 8 instead of 10 officials.
Perhaps it is also the fear of SPAK that prompted Meta to attempt boycott. After all, he is considered one of the most corrupt figures in Albanian politics. During his time as deputy prime minister, a video appeared showing him trying to manipulate the tender for a hydroelectric power plant. Because the video had been secretly recorded, the court rejected it as evidence. Today, his enormous fortune is being discussed on television shows. In a way, the Meta case represents the problem that the reform is intended to solve. His resistance ultimately speaks for its effectiveness.
Despite all attempts to undermine the process, the judicial reform continues. So earlier this year, President Meta reached deeper into his bag of tricks. What strategy remains in an asymmetrical conflict for the resource-defeated side? Nationalism. In March he gathered his supporters on the boulevard in front of the parliament for a “demonstration against the coup d’état”. To nationalist music, he kneeled in front of the crowd and formed the silhouette of the Albanian double-headed eagle with his hands. The fact that probably everyone present knew of his wealth did not stop him from denouncing the exploitation of the population, whose “blood is drunk by the oligarchy”. Those present shouted “Rama ik” (Rama go!) and waved the red-black national flags.[iv]
In the end, the demonstration of power can be interpreted as a sign of weakness. There will not be many moments left where the reform can be blocked. The new judicial institutions are in place. The Constitutional Court today counts four members (women only). A new Attorney General has been formally appointed. Also, the media law was dropped at the last minute and SPAK started its investigations. Clear progress can be seen – and the further the reform progresses, the less vulnerable the judicial system becomes.
[i] Information from the Vetting Commission (KPK) on 27.07.2020.
[iii] Venice Commission: OPINIONON THE SCOPE OF THE POWER OF THE PRESIDENT TO SET THE DATES OF ELECTIONS, 14.10.2019, URL: https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2019)019-e, 16.07.2019.
[iv] Ilir Meta [Facebook]: Manifestimi madhështor Mbarëkombëtar! Së bashku për Pranverën Kuqezi!, 02.03.2020. URL: https://www.facebook.com/1477517792294489/videos/281911042781620, 16.07.2019.