How to Undermine the Rule of Law (with a Little Help from the EU)
Ten years ago, the then recently elected first government of Prime Minister Edi Rama started to develop a judicial reform strategy for the period 2014–2020. According to the European Commission’s “Report on Albania’s Progress in the Fight Against Corruption and Organised Crime and in the Judicial Reform” from June 2014, the main aim of this reform was to “enhance the effectiveness of the judicial system.”
As the drafting of the reform strategy progressed, other goals were added. In the 2015 European Commission Report on Albania, we find that the justice reform would also have to result in adequate training for judges and prosecutors, ensure their independence, and address their accountability as well as the widespread corruption in the justice system. This broad set of desired outcomes, with little actual analysis to support them, was closely informed by the idea of the “rule of law,” illustrated by the fact that the European Commission annually reports on the Justice Reform precisely under this heading.
It is rarely made explicit, however, that the rule of law is a political and not a legal concept. The idea of the rule of law tells us something about the norms we collectively aspire to adhere to vis-à-vis our legal system, a shared sense of responsibility for and accountability toward this system, as is symbolized by the phrase that “no one is above the law.” The phrase “no one is above the law” cannot be found in any law; this is an ethical and political idea. This idea in turn provides us with one of the foundations for the separation of powers and non-interference of the government into judicial proceedings, concepts that we associate closely with the rule of law, but always originate in political practice.
The contradiction of the Albanian Justice Reform as it was actually implemented lies precisely in this: that the most brutal tools of executive action, political pressure, and ad-hoc legislation were deployed in the nominal pursuit of strengthening the rule of law. And in the process, the reform itself became a tool, in fact, to undermine the rule of law and expand the latitude of executive power under the Rama government.
This is nowhere more apparent than in statements of Prima Minister Edi Rama himself, who when commenting on the judicial system never addressed issues of efficiency or adequate training, but always aimed directly at undermining and attacking the judiciary. Already in the early days of the reform he spoke of “courts occupied by criminals,” before eventually coining in 2019 the term “KÇK”:
I am speaking about a criminal organization with constitutional immunity, with legal immunity, about the criminal organization of super-corrupt prosecutors and judges who know that they won’t pass the vetting and work the whole day to grab what they can grab [kap ça të kapësh (KÇK)]. About them I’m talking.
But it was certainly not only the Albanian government that tried to manipulate the stated aims of the Justice Reform for its own purposes. Also the European Commission, being an executive body, exerted extensive pressure on the Albanian political system to pass the reform along the lines that it deemed desirable, not in the least through its own International Monitoring Operation (ONM), half of whose members were transfers from the corruption-plagued EULEX mission in Kosovo, and a justice assistance mission tendered out to an international consortium, EURALIUS, which in the process closely aligned itself with the Albanian government.
This dynamic resulted in the creation of a set of legal and constitutional amendments that had to satisfy two conflicting agendas: the Albanian government’s (and opposition’s) attempt at maximizing their political influence on the implementation of the reform and thus the future shape of the judiciary, and the European Commissions’s attempt at limiting Albanian political influence on the reform’s implementation while retaining theirs, creating a “success story” in the painfully long EU accession process of the Western Balkans. As the then director of the ONM, Genoveva Ruiz Calavera stated, the goal was “to consolidate in an incontrovertible manner, once and for all, the rule of law in Albania.”1
Eventually, and under intense political pressure of the United States and the European Union, a set of laws and constitutional amendments approved by Parliament in August 2016 finally mandated the implementation of far-reaching reforms that included the creation of two new institutions that would undertake the re-evaluation, or vetting, of the entire judiciary: the Independent Qualification Commission (KPK) and the Special Appeals Chamber (KPA) attached to the Constitutional Court.
The peculiarity of the Albanian Justice Reform was that these vetting institutions were not headed by supposedly impartial international specialists, but were supposed to be selected and approved by Albanian parliament. This structural aspect of the Justice Reform, despite the many procedural safeguards that were put in place, in essence allowed Albanian politicians ultimate decision power over the fate of the justice system – precisely what the reform was supposed to counteract.
The establishment of the vetting institutions took place during the tumultuous electoral campaign season of spring 2017. Parliament had set up several ad-hoc committees to evaluate vetting institution candidates presorted by the National Ombudsman and the ONM. One of these candidates was Luan Daci. His election to and tenure at the KPA is illustrative for the way in which the reform was implemented with very little sense of due process with regard any of those involved, and with, in my view, disastrous consequences for both the credibility of the reform itself and its international “rule of law” supporters.
The nomination process itself was marred with deliberate attempts to deviate from the justice reform legislation, thus seriously damaging the entire process from the start. The ONM failed in this precarious early phase to protect the integrity of the procedure. This would be only the first of many times where the ONM abandoned its mission to “monitor and oversee” the actual implementation of the Justice Reform, allowing it to proceed precisely in violation of the rule of law that it was supposed to strengthen.
As it turns out, Daci had omitted from his CV that he was fired from his position at the Court of Tirana for “violation of the law and incompetence in office” in 1997. This fact had in 2016 disqualified him from a position as judge at the District Court of Tirana, and rendered him ineligible as a candidate for the vetting institutions. This, of course, could have been easily found out by the ONM had it fulfilled its constitutional assessment function properly. Likewise, the parliamentary ad-hoc committee, given the right resources and time, could have unearthed this fact. But there was no time, only minimal funding, and the internationals proved inept. The deadlines in the Constitution proved unworkable and everything was rushed through as constitutionally mandated deadlines were ignored. So Daci cleaned up his CV, lied in front of the committee, and was duly elected to the KPA by a decision of Parliament on June 17, 2017.
Daci’s past came back to haunt the vetting process with the case of Antoneta Sevdari, a member of the 2018 High Prosecutorial Council (KLP). Being KLP member, Sevdari’s vetting was expedited. On July 18, 2018, the KPK confirmed her in office, but this was decision was overturned on February 28, 2019 by the KPA. Subsequently, Sevdari filed a complaint against two KPA members, including Daci, at the ONM. Sevdari alleged that her vetting had violated art. 6 § 1 of the European Convention on Human Rights (ECHR), namely the right to be “entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law,” as a result of the fact that Daci had been elected despite not meeting the minimal eligibility criteria.
The ONM ignored her complaint, refusing to file it at the KPA on her behalf. Again, this episode shows clearly that the ONM had less interest in protecting the rule of law than protecting the political process of the Justice Reform championed by the European Commission. Sevdari escalated her case to the European Court for Human Rights (ECtHR), but her complaint based on ECHR art. 6 § 1 did not hold up.2 A similar case, however, filed by another 2018 KLP member, Besnik Cani, whose confirmation by the KPK was overturned by the KPA on February 27, 2020, turned out to be successful.
In its judgment Besnik Cani v. Albania, finalized on January 4, 2023, the ECtHR indeed concluded that the irregular appointment of Daci to the KPA had resulted in the KPA not constituting “an independent and impartial tribunal established by law.” The ECtHR further emphasized that “the institutional requirements of Article 6 § 1 shared the ordinary purpose of upholding the fundamental principles of the rule of law and the separation of powers” (§87). And precisely those principles, principles that were supposed to be strengthened by the vetting and Justice Reform, the highest court in Europe had now proven seriously violated.
The ECtHR judged that the KPA had not fulfilled the requirements of a court of law. Any of its verdicts that included Daci as one of the judges before he was eventually removed ought thus be considered null and void, inexistent: ordinary pieces of paper drawn up by a bunch of random people selected by Parliament. The total number of cases in which a KPA college including Daci overturned a decision of the lower vetting institution, the KPK, and thus had a material effect on the vetting process is not very large: nine. But the symbolic damage of this verdict was immeasurable.
As the ECtHR judgment implied the nullity of his dismissal by the KPA, Cani’s previous confirmation by the KPK had come again into force, which in theory should allow him to return to his former post as prosecutor in Elbasan. Indeed, he requested such to the KLP, which scheduled a deliberation for its March 30, 2023 meeting. The KLP’s Career Commission had already given its green light and there was also a draft resolution to be approved during the meeting to this effect. But during the meeting, the matter was withdrawn from the agenda.
“The International Monitoring Operation will continue to monitor the thoroughness of the vetting process, including its full compliance with human rights and principles underlying the system of the European Convention of Human Rights.”
– The International Monitoring Operation
Then, on March 31, the ONM requested from the KLP documents concerning its pending decision about Cani, and the next day the Board of the ONM, comprised of high-level representatives from the EU and US, released a press statement, for the first time since its controversial establishment in 2017.
It was understandable why the ONM Board was in a rush to release a press statement, citing “public sources” rather than waiting for the documents they had requested. As I explained above, the Besnik Cani v. Albania judgment touched upon the core paradox of the Albanian Justice Reform: the undermining of the rule of law while claiming to strenghen it. In order to keep this charade going, even the slightest hint of “legal uncertainty” must be stamped out immediately, which was precisely what this press statement aimed to accomplish.
However, the ONM Board statement, which KLP chairman Alfred Balla not without a sense of irony described as “reactions from our international friends,” only compounded the impression that self-preservation, not the rule of law, was the driving force of the ONM.
First of all, it completely ignored the fact that the ECtHR had established that the KPA college that had judged Cani was no “independent and impartial tribunal established by law.” It appeared to accuse the KLP of threatening the “independence and the exclusive jurisdiction of the vetting bodies” by “taking actions which directly contradict final vetting decisions,” while the ECtHR’s judgment directly means that the KPA’s “final vetting decision” never existed in the first place.
Second, the ONM selectively quoted from the verdict to serve its own narrative, claiming that “the most appropriate form of redress for the violation of the applicant’s right would be to reopen the judicial proceedings,” as stated in the ECtHR verdict. The ONM here left out essential elements: “… to reopen the proceedings, should the applicant request such reopening, and to re-examine the case in a manner that is keeping with all the requirements of Article 6 § 1 of the Convention.” In other words, Cani was under no obligation to request reopening of the proceedings, and, moreover, any retrial by the KPA would not be in keeping with requirements of ECHR art. 6 § 1, as he would again face a KPA in which by necessity several of the judges who issued the 2020 verdict would once again review his case.
And finally, and this is perhaps one of the finest examples of delusional EU bureaucrat speak I have seen in recent years, the ONM claimed that it would continue to monitor the vetting’s “full compliance with human rights and principles underlying the system of the European Convention of Human Rights.” That is a remarkably bold statement to make, after the European Court of Human Rights literally unmade the highest vetting body that the ONM supposedly “monitored,” concluding that it failed to comply with precisely those “human rights and principles underlying the system of the European Convention of Human Rights.”
A lawyer involved in some of these cases told me recently, and not without a heavy dose of cynicism, that the only effect of the Justice Reform has been a price increase. Since the cost of passing the vetting for judges and prosecutors is so high, bribes have now become more expensive.
In 2018, the EU justice assistance mission EURALIUS predicted that the vetting would last until 2021. But by 2021, as the mission closed down, not even 60% of the judges and prosecutors had been vetted. By means of the vetting process, the Justice Reform effectively disabled large parts of the Albanian judiciary system, including the Constitutional Court and High Court, for substantial periods of time. Political blockades, failure to meet legally mandated deadlines, and bylaws that remained undrafted amounted to what was basically a weaponization of the Justice Reform process by the Albanian government to sustain a lenghty period of de facto lawlessness, during which it handed out concessions in the fields of healthcare, education, border control, gambling, and infrastructure, all for periods from 10 to 30 years.
As now is becoming slowly apparent from several investigations by the Special Structure against Corruption and Organized Crime (SPAK), many if not all of these concessions were rigged and steeped in corruption. But the utter constitutional and legal chaos caused by the Justice Reform provided precisely the political opportunity for the executive to conclude these backroom deals with little or no immediate consequence. So from the perspective of the Albanian government, the Justice Reform has been a huge success.
Also the European Commission may claim success. The implementation of the Justice Reform – regardless of the quality of this implementation – facilitated the opening of EU accession negotiations that it had desired for years, while producing “tangible” change in a hopeless area.
But glossy statistics of the number of magistrates vetted, number of legal amendments passed, and number of cases opened by SPAK obfuscate the fundemental issues the Justice Reform was supposed to address: What about the rule of law? What about the question of efficiency and the real issue of the access to justice with which ordinary Albanians struggle on a daily basis? Did the reform bring any improvement in this regard, as was envisioned ten years ago? It suffices to cite the European Commission’s 2023 Report on Albania:
The efficiency of the judicial system and access to justice continued to be affected by the length of [vetting] proceedings, the increased workload and the large backlog of cases, which remains significant.3
The Albanian Mechanism is part of Manifesto GREAT WAVE.
When arriving in Albania, Ruiz Calavera had claimed that “the only voice that will be commenting on our work is the public website” of the ONM. However, like all other internationals, also she didn’t resist the attraction of the Albanian spotlight for long. Also ONM members themselves started talking to the press.
Sevdari won her case in Strasbourg based on other violations of the ECHR during her vetting process.
This is echoed by a 2023 report of the European Commission for the Efficiency of Justice (CEPEJ): “In Albania, the vetting procedure affected not only the number of professionals but also the number of resolved cases (because of the lower number of judges) and, consequently, the Clearance Rate (CR) and the Disposition Time (DT) (especially in the second and third instances where many judges were dismissed or voluntarily retired). Thus, judges were not able to cope with the influx of cases, and the CR was always below 100% in 2019, 2020, 2021 and 2022. In particular, the CR for second- instance cases in 2022 was well below 100%. However, the Disposition Time (DT) in the first instance is lower than the WB median in the three categories of cases. The DT was extremely high in 2020, especially for civil and commercial litigious cases (1 742 days in the second instance) and for administrative cases (4 485 days in the second instance). In 2021 the situation improved, and the DT decreased for all categories of cases in the first and second instances, except for administrative cases in the second instance. In particular, DT for civil and commercial litigious cases changed from 366 days to 279 days, while for criminal law cases, it decreased from 294 days to 67 days, lower than in 2018. However, in 2022 the efficiency deteriorated again, with an increase in the disposition time for all categories of cases in the two instances. The reasons for inefficiencies can be traced back to the lack of judges but also to the unequal distribution of cases among courts.”