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Despite its weaknesses, the vetting process remains the reform of paramount importance in Albania

A session of the appeals chamber, June 2022; Photo: Institucioni i Komisionerëve Publikë

The main tool of justice reform in Albania, known as the vetting process, was extended by the Parliament of Albania at the beginning of this year. With many magistrates leaving the system in the past couple of years, the process revealed how corruption had penetrated it. However, due to obstacles present from the start, it turned out much more complex than expected, thus leading to the question of when the process will end and whether its benefits will prevail.

In 2016, the Parliament of Albania approved constitutional amendments required to reform the justice system in the country. This reform was set as a critical precondition for the beginning of Albania’s accession talks with the EU after it was granted a candidate status. Considering that no evaluation of the judges and prosecutors had been conducted in the past twenty years, the European Union had been highlighting the need for it.

Thus, the constitutional amendments led to the adoption of the Vetting Law – the most important tool used by Albania to reform its justice system, through the re-evaluation of the existing judges and prosecutors.

This process included the examination of the legality of their assets, their professional standing, as well as possible connections to organized crime. It has been conducted by the newly appointed Independent Qualification Commission (IQC) and the Appeal Commission, monitored by the International Monitoring Operation, composed of judges and prosecutors selected by different EU member states. They aimed to ensure the integrity and effectiveness of the justice system, as well as the public’s trust in the institutions.

As Rovena Sulstarova, Governance Program Manager at Institute for Democracy and Mediation, explains, justice reform represents the key anti-corruption initiative in Albania in the last decade. The expectations that it would clean up the judicial system and advance the country’s European perspective have been high.

“The reform has affected more than one-third of the provisions of the constitution. Moreover, about 40 new laws or legal amendments have been drafted and approved within the framework of this reform”, she states.

When the package of the justice reform was approved in 2016, experts forecasted that the vetting process could clean up about 30% of magistrates in Albania. Yet, Sulstarova noted that five years after the start of the reform, the clean-ups in the system have doubled that figure.

“Today, 45% of the 408 judges are out of the system, due to the vetting process, resignations or other reasons. 37% of the 321 prosecutors are out of the system due to the vetting, resignations or removal of prosecutors in the new Justice Institutions”, Sulstarova points out.

Unexpected difficulties – high expectations unmet?

The number of people that left the system showed the process is much more complex than expected. Although this confirmed how deep the corruption had infiltrated, the disproportionate performance created with more people leaving the system than entering it has formed a gap in human resources. This significantly affected the functioning of the justice system in Albania and the expectations of Albanian citizens, whose trust in the judiciary remained very low.

According to Nino Strati, Project Coordinator at the Centre for the Study of Democracy and Good Governance, this happened because a deeper analysis of the vetting process had not been conducted.

“To transform the justice system and to make substantial interventions in it, there should have been a long-term plan on all the consequences that the vetting process could cause. This analysis has been lacking and as a result, the mass removal of judges and prosecutors from the justice system has led to a significant lack of magistrates in courts and prosecutor offices of all levels”, explains Strati.

He adds that this has caused delays in the trials and raised questions about the quality of the decisions of judges and prosecutors that had to deal with a huge number of cases.

The high number of dismissals and terminations, led to the problem of the recruitment of the new magistrates as well, notes Zef Preci, Executive Director of the Albanian Centre for Economic Research.

“There is also a number of other concerns, such as the risk of political control on the new justice management bodies, some questionable decision on firing some individuals from the system, etc. Despite that, in my judgment, such consequences are expected to happen but I hope they will be temporary, and less and less influential in the entire functioning of the system. It’s because the main result of the up-to-date justice reform has been already achieved: there are no more untouchable judges and prosecutors”, says Preci.

Everyone could be held responsible

Despite all the obstacles, the vetting process remains the biggest reform of the judiciary in Albania, and in the wider region. The main opponents of this process from the beginning have warned that public officials could use the new rules to influence judicial appointments, hence hindering the credibility of an already fragile system. Yet, some of the most controversial cases demonstrated that the accountability of different people could be established sooner or later.

One of the examples is the case of judge Artur Malaj, who was a candidate for the office of High Inspector of Justice and the Constitutional Court.

“In 2018, the Independent Qualification Commission (IQC) confirmed him in the Administrative Court of Appeal, Tirana, but the decision was appealed by the Public Commissioner with the recommendation of the International Monitoring Operation,” Sulstarova says.

“The report from the secret services stated that Judge Malaj had received money for decisions and had invested them in construction projects. According to this report, in one case Malaj had received money from a person accused of prostitution trafficking. However, this fact was ignored by IQC, together with the evidence that Malaj owned a three-floor villa, a property of dubious origin because it was registered in the mortgage in the name of his former secretary”, she adds.

As Sulstarova explains, although the International Monitoring Operation had concluded that Malaj should have been dismissed from the system because he had not shown a reliable level of professionalism, the IQC declared the report of the Directorate of the Classified Information was incorrect and confirmed Malaj.  Yet, the decision was appealed by the Public Commissioner (PC) with the recommendation of the International Monitoring Operation and the Special Appeal Panel in 2019 decided to dismiss him.

The end of the process – will it be successful?

In February this year, the Parliament in Albania voted to extend the 5-years mandate of key justice-vetting bodies to continue to control judges and prosecutors until the end of 2024. This move has been welcomed both by the US and EU. However, since the process has been more challenging than expected, the question remains whether two and a half years more will be enough for it to end successfully.

Nino Strati explains that the new deadline is justified given the delay at the beginning of the process implementation and the fact that vetting is a sui generis process, implemented for the first time in Albania.

As he says, it took time for a consolidated practice of controlling the assets, figures, and professionalism of the vetting subjects to be established. Besides, during the COVID-19 pandemic the decision-making of vetting bodies slowed down and the new pace resumed at the end of 2020.

“All these problems caused the deadline of the vetting process to be postponed. In my opinion, the postponement of the deadline is fair and necessary to conclude the process within the set standards. If the vetting bodies follow the current pace, the process can be completed within 2024,” he states.

Zef Preci agreed the extension is justifiable and noted the extension was influenced by a large number of contests of the fired prosecutors and judges and some contradictory reactions of some political key figures against the reform in general.

According to Preci, although the reform is progressing in general, there are few obstacles.

“Among main barriers remains the political will of governmental agencies to provide the necessary financial, institutional and the staff support. So, the ongoing international support to make sure that it (political will) will continue without interruption, beyond the questionable cases, remains critical for the whole process” he highlights.

He adds the more active and transparent role of the prosecutors’ and judges’ councils will speed up the process of vetting which will significantly improve the public confidence in the new, reformed justice system in Albania.

“In my judgment, the success of vetting will be ensured when the majority of Albanian citizens, voters and tax-payers, and business community will better rely on the new justice administration bodies, such us the prosecutors’ and judges’ councils”, Preci concludes.

This article was published as part of the project “Civil society for good governance and anti-corruption in southeast Europe: Capacity building for monitoring, advocacy and awareness-raising (SELDI)” funded by the European Union.

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