FACULTY OF LAW
UNIVERSITY OF AMSTERDAM
MASTER THESIS
The vetting process of judges and prosecutors – the compliance with the rule of law accession criterion– Albanian Case
Master’s Programme in International and European Law (European Union Law track)
Supervisor: Prof. Steven Blockmans Student: Manjola Xhaxho
Table of contents
Abstract ... 3
Abbreviations ... 4
I. Introduction ... 5
II. The meaning of the rule of law principle within the EU accession law ... 7
1. The Treaty provisions ... 7
2. The Copenhagen accession criteria ... 7
3. The Thessaloniki accession criteria ... 8
4. The Copenhagen – related accession documents ... 10
5. The normative influence of the standards of the CoE on the rule of law principle of EU accession law ... 13
5.1 The member states and the rule of law standards ... 14
5.2 The EU rule of law standards ... 14
III. The vetting process in Albania ... 17
1. The necessity of the vetting process ... 17
1.1 EU requirements ... 17
1.2 Response of Albania ... 18
2. The legal framework of the vetting process ... 20
2.1 The institutional independence of the vetting process ... 20
a. The independence of the vetting institutions ... 21
b. The role of the IMO ... 23
2.2 The vetting procedure ... 24
a. The role of state institutions ... 26
b. The role of the vetting institutions ... 28
c. The role of IOs ... 29
IV. Vetting process a model for Western Balkan countries ... 30
1. Venice Commission’s opinions on vetting process ... 31
1.1 Case of Hungary ... 31
1.2 Case of Albania ... 31
2. The level of corruption in Western Balkan countries ... 32
3. The commitment to the Western Balkan countries to the EU ... 34
V. Conclusion ... 36
Abstract
The re-evaluation of judges and prosecutors (vetting process) is part of the judicial reform undertaken by Albania in order to comply with the rule of law requirements of the integration process to the European Union. The thesis examines in the context of the European Union accession law (i) whether the vetting process is in compliance with the rule of law principle and (ii) whether the vetting process could be introduced in the judicial reforms of the Western Balkan countries.
In achieving this scope the thesis analyses the meaning of the rule of law principle of European Union accession law and its development through employment of the relevant Council of Europe standards in particular those elaborated by the Venice Commission. The accession rule of law standards refer to the independence, accountability and efficiency of the judiciary, which include the independence, impartiality, integrity and proficiency of judges and prosecutors.
The vetting process is considered the response to the need to ensure an independent, impartial and uncorrupted judicial system and to strengthen the requirements of rule of law principle. To achieve this scope, its compliance with the rule of law principle becomes crucial. Therefore, independent vetting institutions, independent vetting procedure coupled with the assistance offered by the International Monitoring Operation are necessary in order to enhance transparency and safeguard the process against abuses and external influences.
European Union institutions acknowledged and welcomed the newly established vetting process in Albania. Therefore, the high level of corruption in the judiciary that the Western Balkan countries face might justify the introduction of the vetting process in their judicial reforms. However, its implementation remains a political choice of Western Balkan countries committed to join the European Union.
Keywords: European Union; Council of Europe; Venice Commission; rule of law;
Copenhagen criteria; Thessaloniki criteria; accession law; accession process; judicial reform; vetting process; independence, impartiality, efficiency, judiciary, corruption.
Abbreviations
AC Appeal Chamber
Ad Hoc Committee Ad Hoc Parliamentary Committee on Justice System Reform
AP Agreement Partnership
CISD Classified Information Security Directorate
CJEU Court of Justice of European Union
Commission European Commission
Constitution Constitution of Republic of Albania
Council European Council
EU European Union
HIDAACI High Inspectorate of the Declaration and Audit of Assets and Conflict of Interest
IMO International Monitoring Operation IO International Observer
IQC Independent Qualification Commission PC Public Commissioner
SAP Stabilisation and Association Partnership SAA Stabilisation and Association Agreement TEU Treaty of the European Union
TFEU Treaty of the Functioning of the European Union Vetting law Law no 84/2016 “On the transitional re-evaluation of judges and prosecutors in the Republic of
Albania
Vetting process Re-evaluation of the judges and prosecutors
VC European Commission of Democracy though
Law -Venice Commission
I. Introduction
Strengthening the rule of law is considered to be of vital importance for the accession process of WB countries namely Albania, Bosnia, Kosovo, Former Yugoslav Republic of Macedonia, Montenegro and Serbia to the EU1. Therefore, undertaking
the reforms to comply with such principle is one of the most significant requirements in the accession process2. Accordingly, the judicial reform is deemed to be one of the key priorities3 that the WBs included Albania should take on in order to meet the accession criteria4. A pivotal component of this reform is the re-evaluation process of sitting judges and prosecutors undertaken in Albania. This process was launched with the overall objectives of strengthening professionalism across the sector, eradicating corruption, consolidating independence and impartiality and, ultimately, rebuilding public confidence in the judiciary5.
The accession process of a candidate country to the EU requires that country to take steps and introduce reforms to improve its current situation in order to comply with EU founding values stipulated in Article 2 of the TEU such as democracy, rule of law, etc. The EU Institutions, on the other hand, assist that country in drafting and implementing the reforms6, assess such reforms through the country reports and establish the priorities that the candidate country has to undertake in order to fulfill the criteria of the EU accession law. The thesis will discuss the vetting process in Albania from the abovementioned perspectives.
Particularly, the thesis will examine in the context of the EU accession law (i) whether the vetting process is in compliance with the rule of law principle related to the judiciary and (ii) whether the vetting process could be a model and subsequently could be introduced as part of the judicial reform in the WB countries.
In order to achieve this purpose the thesis is organized in five sections. The first
section is this introduction. The second section will elaborate the meaning of the rule
of law principle with regard to the judiciary within the EU accession law. In this regard the thesis will look at the concept of the rule of law as described in the TEU provisions, Copenhagen and Thessaloniki documents and the related accession
1 Ardit Mehmeti, “Rule of Law through judicial reform: A key to the EU accession of Western Balkans”, Contemporary Southeastern Europe, 2014, 1(1), page 58
2 Commission’s Country Report on Albania 2018; SWD (2018) 151final, 17.04.2018 3 Ibid 2
4 Ibid 2
5 Ibid 1; Article 179/b(1), Constitution of Albania retrieved at
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)064-e
6 EURALIUS IV is designed as the EU technical assistance project that supports and assists Albanian
justice institutions to bring their performance closer to EU standards and is found by European Commission under the IPA 2013 funds. The overall objective of the EURALIUS IV project "was to strengthen the independence, transparency, efficiency, accountability and public trust in the Albanian justice system in line with the EU acquis and best practices"; http://www.euralius.eu/index.php/en/
documents. Additionally, the thesis will examine the reference of the EU institutions to the CoE’s standards of the rule of law in assisting and assessing the judicial reform that a candidate country takes in order to enforce this principle of EU accession law. Subsequently, it will be discussed the normative influence of rule of law standards of the CoE in the EU accession law. For this purpose the thesis will look at the relation between the rule of law standards of CoE on the one hand and the EU legal order and the member states’ legal systems on the other hand. The third section deals with the vetting process, which is a tool for achieving an independent, impartial and not corrupted judicial system and subsequently strengthening the requirements of rule of law principle of the EU accession law. Therefore, this section will explore the compliance of the vetting process with the rule of law principle. In this regard the thesis firstly will explain the necessity for introducing such radical measure in Albania and secondly will elaborate the legal provisions of the vetting process that deals with (i) the establishment and functioning of the vetting institutions and (ii) the vetting procedure. The analysis will also address the role of IMO and states agencies in assisting the vetting process and their relation with the vetting institutions namely IQCs, AC, PCs. The fourth section of the thesis will discuss whether the vetting process might have an impact on the EU accession law. In other words whether such process can be suggested and subsequently introduced as part of the judicial reform in other candidate countries in the WB region. For this reason, the thesis will look at the standards that the VC indicated in order to introduce the vetting process in Albania. Additionally, it will examine if such standards can be applied in the WBs. The fifth
II. The meaning of the rule of law principle within the EU accession Law
The rule of law is one of the founding values of the EU that the candidate country to the membership of the EU must comply with. Accordingly, the thesis will elaborate the meaning and the elements of the rule of law principle of the EU accession law as they are stipulated in the TEU as well in the Copenhagen, Thessaloniki and the related accession documents.
1. The Treaty provisions
According to Article 49(1) of TEU the European State that applies to become a member of the Union should respect and promote the values stipulated in Article 2 of the TEU7. The latter provision provides that the Union is founded on the values of
respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Article 2 of TEU does not give a definition of the rule of law principle. However, it is clear from its wording that the rule of law is one of the values that underpins the EU, which is common to the Member States. Apparently the EU law provides the guidance, which governs the accession of new member states to the EU8. In reality the rule of law accession condition was an incorporation of the Copenhagen political criteria9, which will be discussed in details in the next sub-section. However as will
be examined in sub-section 4 the rule of law requirement is elaborated in the enlargements related documents10.
2. The Copenhagen accession criteria
The Copenhagen European Council established the so-called Copenhagen accession criteria in 199311, which were strengthened by the Madrid European Council in
7 For a comprehensive discussion on Article 49 see Dimitry Kochenov, “EU enlargement and the failure of conditionality Pre-accession conditionality in the fields of democracy and the rule of law”, Kluwer Law International, 2008, pages 22-36
8 Ibid 7, page 13. 9 Ibid 7, page 21 10 Ibid 9
199512. They were designed to develop more stringent conditions to measure the level
of preparedness for the accession process of both candidates and the EU13. Since 1993, membership requires:
1. that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities (so-called political criteria);
2. the existence of a functioning market economy and the ability to cope with competitive pressure and market forces within the EU (so-called economic criteria);
3. ability to take on the obligations of membership, including adhering to the aims of political, economic and monetary union (so-called – legislative alignment); 4. the Union's capacity to absorb new members, while maintaining the momentum of
European integration, is also an important consideration in the general interest of both the Union and the candidate countries.14
Notwithstanding the criticism of the Copenhagen political criteria as being too broad and insufficiently precise, they enabled the EU Institutions (at that time Community Institutions) and most notably the Commission, to steer the pre-accession development in the candidate countries15. The Commission, using the Copenhagen criteria as a legal set of guiding principles could direct the reform process in the candidate countries in order to achieve better compliance with these criteria16. Accordingly, the European Council vested the Commission with far-reaching power to monitor the way the candidate countries prepared their accession and more generally, to establish the pre-accession strategy17. In this way the rule of law Copenhagen accession criterion was further elaborated. This issue will be discussed further in sub-section 4.
Additionally, the EU in relation to the WB countries introduced the Thessaloniki criteria for membership in 2003.
3. The Thessaloniki accession criteria
In the case of the countries of the WB additional conditions for membership were set out in the so-called “Stabilisation and Association Process” (SAP). The latter was
12 http://www.europarl.europa.eu/summits/mad3_en.htm#annex6
13 Steven Blockmans, chapter 4 “Consolidating the enlargement agenda for south eastern Europe” in
“Reconciling the deepening and widening of the EU”, TMC Asser Press, 2007, page 84.
14 http://europa.eu/rapid/press-release_DOC-93-3_en.htm?locale=en 15 Ibid 7, page 34
16 Ibid 15
17 Christophe Hillion. Chapter 8 ‘EU Enlargement”, in Paul Craig and Grainne De Burca “The
launched in June 1999 taking over elements of the accession process18. The SAP is
the European Union's policy towards the WBs that aim to accede the EU19.
The SAP was strengthened and enriched at the Thessaloniki Summit in June 200320, in order to meet the new challenges as the countries move from stabilization and reconstruction to sustainable development and integration into European structures21. Additionally, at the Thessaloniki Summit, the European Council and the acceding candidate countries of the WB agreed inter alia that the latter“…share the values of democracy, the rule of law, respect for human and minority rights, solidarity and a market economy, fully aware that they constitute the very foundations of the European Union.22”
In the light of this development, the conditions of the accession process for the WB countries have been upgraded23. In addition to criteria of Articles 49 and 2 of TEU and the 1993 Copenhagen criteria, pre-accession conditionality for WB countries is established by:
a) the conditions flowing from 1999 Stability Pact for South Eastern Europe and the SAP, which reiterate the Copenhagen criteria and add the conditions of regional cooperation through political dialogue and the conclusion (free trade) agreements with countries in South Eastern Europe24, and
b) the country-specific conditions for the opening and conclusions of Stabilisation and Association Agreement (SAA) talks25. For implementing the SAP, between the European Union and the Western Balkan countries were signed the SAAs. In the context of accession to the European Union, the agreement serves as the basis for implementation of the accession process26.
The Copenhagen and further the Thessaloniki documents do not elaborate the meaning of rule of law accession criterion. That being said the rule of law principle stipulated in Thessaloniki was a repetition of the Copenhagen criteria. Subsequently a detailed framework of instruments (which complemented the text of the Copenhagen criteria) were needed in order to (i) ensure the effective assessment of the progress made by the candidate countries, which framed clear sub-criteria to fall within Copenhagen pre-accession standard and (ii) provide a functional and reliable mechanism to encourage the better performing candidates and punish those failing to
18 COM(99)235, final, Brussels, 26.05.1999 retrieved at http://aei.pitt.edu/3571/1/3571.pdf 19 Ibid 18 20 http://europa.eu/rapid/press-release_PRES-03-163_en.htm 21 Ibid 13, page 66 22 Ibid 20 23 Ibid 13, page 76 24 Ibid 13, page 77 25 Ibid 24 26 Ibid 24
comply27. Accordingly the so-called Copenhagen-related documents elaborated the
concept of the rule of law that the candidate country should comply and promote in order to become a member of the EU. The following sub-section looks at the so-called Copenhagen –related documents.
4. The Copenhagen – related accession documents
The so-called Copenhagen – related documents, drafted by the Commission, represent legal and political instruments that aim at (i) ensuring the daily application of the Copenhagen criteria, (ii) checking the extent of the candidate countries’ preparedness for accession and (iii) analyzing the relevant developments in the candidate countries, along with the promotion of those reforms the Commission views as necessary28.
Such a system also provides reliable information to the European Council, on the basis of which the most important decisions ultimately leading to enlargement are to be taken29.
The monitoring (assessing and reviewing) process was launched by 1994 Essen European Council and continued by the 1997 Luxemburg European Council30. Based on the conclusions of the above meetings the European Council created and reinforced the pre-accession strategy, which enabled the Commission to translate the Copenhagen criteria into indicators and priorities for the candidate country to carry out the required reforms31. Therefore, following the formulation of the accession criteria the EU Institutions established a system of compliance control and sanctions as part of enlargement policy and its management32.
On the basis of the framework of AP regulation adopted by the Council33 the Commission drafted individual partnerships containing the list of principles, priorities, intermediate objectives and conditions on which the adaptation of the candidate country should focus in order to meet the Copenhagen criteria34. The AP
also established a system whereby the Council, on the proposal from the Commission, could grant the EU financial assistance and review it if progress in meeting the Copenhagen criteria was deemed insufficient35. Therefore, the Copenhagen political criteria became de facto legally enforceable, since the pre-accession financial assistance awarded to the candidate countries was made directly dependent on their
27 Ibid 7, page 66 28 Ibid 7, page 65 29 Ibid 28
30 Ibid 17; Presidency Conclusions, Essen European Council 9-10 December 1994; retrieved at
http://www.consilium.europa.eu/media/21198/essen-european-council.pdf ; Presidency Conclusions, Luxembourg European Council 12-13 December 1997; retrieved at
http://www.europarl.europa.eu/summits/lux1_en.htm
31 Ibid 17 32 Ibid 17
33 Council Regulation 662/98; [1998] OJ L85/1 34 Ibid 17; Article 2, Council Regulation 662/98
progress towards meeting criteria36.
The so called Copenhagen related documents include: the Commission’s Opinions on the Application for Membership of EU, the Commission’s Regular Reports on candidate countries’ progress towards accession; the Commission’s Comprehensive Country Monitoring Reports; Accession Partnerships or Stabilisation and Association Agreements with WB countries; Commission’s Agenda for enlargement, Composite Papers and Strategy Papers and Comprehensive Monitoring Reports37.
Structurally all these documents are clearly rooted in the Copenhagen Criteria38. At the core of them are the criteria for membership which are divided in sub–sections such as: (i) political criteria (democracy, rule of law, human rights, and respect for protection of minorities); (ii) economic criteria (the existence of functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union); (iii) ability to take on the obligation of membership including adherence to the aims of political, economic and monetary Union (that is, the acquis as expressed in the Treaties, the secondary legislation and the policies of the Union) and also administrative capacity to implement the acquis39. The last sub-section
includes the 35 acquis chapters (different EU policy fields). Among them chapter 23 is relevant to this thesis because it deals inter alia with the judiciary.
In 2012, the Commission introduced a new approach, which prioritises reforms in the area of the judiciary together with human rights protection, anticorruption measures, ensuring that they are addressed as early as possible in the accession process40. For that reason, chapter 23 - Judiciary and fundamental rights- was presented in the sub-section of political criteria under the rule of law criterion41.
The adoption of the acquis and its implementation by the candidate country has become a condition for the membership42. The chapters of the acquis are part of the
36 Ibid 7, page 34; Article 4 of the Council regulation (EC) no. 662/98, OJ L 85/1, 1998 37 Ibid 28
38 Ibid 7, page 77; see also COM(2016)517; SWD(2018)154 final 39 Ibid 38
40 Commission EU enlargement Strategy 2015;
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52015DC0611 ; see also annual Commission report from 2012;
https://ec.europa.eu/neighbourhood-enlargement/news_corner/key-documents_en?field_file_theme_tid[0]=96&field_file_country_tid[0]=79
41
https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2012/package/al_rapport_2012_en.pdf
42At the Hague Summit in 1969 the Heads of States or Governments of Member States reaffirmed their agreement that in so far as the applicant States accept the Treaties and their political finality, the decisions taken since the entry into force of the Treaties and the options made in the sphere of development, the Heads of State or Government have indicated their agreement to the opening of negotiations between the Community on the one hand and the applicant States on the other. This condition to the membership was strengthen by the Copenhagen Summit and Madrid Summit. The latter made it clear that the admission would entail more than the mere political commitment to accept the integration acquis, which were required at the 1969 Hague Summit; see Christophe Hillion Ibid 17
APs and are translated into indicators by the Commission through the related-documents (opinions, reports) and subsequently are binding on the candidate country. The Commission on the conditions for membership regarding chapter 23 on Judiciary and Fundamental Rights provides the following explanation (rules)43:
EU policies in the area of judiciary and fundamental rights aim to maintain and further develop the Union as an area of freedom, security and justice. The establishment of an independent and efficient judiciary is of paramount importance. Impartiality, integrity and a high standard of adjudication by the courts are essential for safeguarding the rule of law. This requires a firm commitment to eliminating external influences over the judiciary and to devoting adequate financial resources and training. Legal guarantees for fair trial procedures must be in place. Equally, Member States must fight corruption effectively, as it represents a threat to the stability of democratic institutions and the rule of law. A solid legal framework and reliable institutions are required to underpin a coherent policy of prevention and deterrence of corruption. Member States must ensure respect for fundamental rights and EU citizens’ rights, as guaranteed by the acquis and by the Fundamental Rights Charter.
In accordance with chapter 23, the judicial reforms of the candidate countries should aim at ensuring and promoting the rule of law principle. These rules indicate that in order to fulfill the accession criteria the following elements of rule of law in relation to the judiciary should be complied with:
a) independent judiciary - elimination of external influences over the judiciary b) efficient judiciary
c) high standard of adjudication
d) impartiality and integrity of the judges e) adequate financial resources
f) training of the judges
Only by complying with the above elements of the rule of law principle would the judiciary system in the candidate country ensure the respect for fundamental rights of individuals, guarantee the fair trial, fight and effectively deter the corruption in that country.
The Copenhagen–related documents do not give the explicit definition of the rule of law principle in relation to the judiciary. However, they do provide for its elements namely the independence of the judiciary, impartiality and integrity of the judges, efficiency of the judiciary. Additionally, these documents refer to the standards of
43 Ibid 1, page 63; see also
such principle drawn up in the CoE legal instruments, building notably on the expertise of the VC44.
Therefore the Commission through its opinions, country reports and other related accession documents filled the role of law criterion with normative content that may have been lacking in view of the limited, if not non-existent relevant EU norms45.
Subsequently, based on such documents (country reports, opinions etc.) the Commission mainly looked at the following indicators46:
a) institutional independence of the judiciary. The approach of the Commission is to promote a model of judicial independence where the self-governance of the judiciary was to play a leading role. This reflects the principle that the separation of judicial power from the executive and the legislature at least is an essential feature of the rule of law.
b) independence and impartiality of the individual judges. Regarding this element the Commission looks, among others, at the personal immunity of the judges coupled with their accountability, criminal and disciplinary behaviour.
c) budgetary independence of the judiciary. The Commission promotes the duty of ensuring that judges have the means necessary to accomplish their tasks, and preserve their impartiality and efficiency of the judiciary, drafting of the budget by the self-governing bodies within the judiciary without interference of the government.
d) efficiency of the judiciary. The approach of the Commission is to assess the length of the processing, the backlog of the cases, the delivery of the decisions in due time, the allocation procedure of the cases, access to justice and enforcement of the judicial decisions.
e) professional quality of the judges which includes as well initial and continuous training of the judges .
Bearing in mind that the Commission takes into account the CoE’s standards when assessing the compliance of the candidate country with the rule of law criterion, the thesis will subsequently discuss the influence of the rule of law standards of the CoE in the EU accession Law.
5. The normative influence of the standards of the CoE on the rule of law principle of EU accession law.
The so called Copenhagen – related documents made references to the documents lying outside the field of EU law, allowing international organizations in particular the CoE to play a role, albeit indirectly in the assessment of the compliance with the
44 Communication from the European Commission to the European Parliament and the Council, ‘A
new EU Framework to strengthen the Rule of Law’, COM(2014) 158 final/2; http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf
45 Ibid 17 46 Ibid 7
Copenhagen criteria of the candidate country47. A clear example of this is the vetting
process in Albania that will be discussed in section III.
CoE is the benchmark of rule of law in Europe as far as it was established to safeguard such principle by its member states48. This role of the CoE was also recognized by the EU in the Memorandum of Understanding between the CoE and the EU adopted on 10 May 200749. The thesis will explore the legal justification of the inclusion of the CoE’s standards of rule of law related to the judiciary in the EU accession law. For this purpose it will compare the impact of the CoE’ standards to the member states’ legal systems and the EU law.
5.1 Member states and the rule of law standards
The member states of the EU are parties to the CoE50. Therefore, the member states
themselves have to comply with the standards of the rule of law of the CoE. Yet similar to the EU treaties, the definition of the rule of law principle is not provided in the CoE legal instuments. However, it has developed its elements through the legal documents and commons rules set up by its Advisory Bodies namely VC.
The main CoE legal instrument that provides the standards of the rule of law principle in relation to the judiciary is the Council of Europe’s Recommendations on the Independence, Efficiency and Responsibilities51. Additionally, several reports and opinions on the rule of law principle52 have been issued by the VC aiming at elaborating furthermore the rule of law standards. Subsequently, in as far as the member states are parties to the CoE, they have to comply with its elaborated standards of rule of law that subsequently have a binding nature in their national legal systems.
5.2 The EU and the rule of law standards
Even though the CoE’s standards of rule of law are binding to the member states of the EU because they are parties to that organization, the EU is not a member of the CoE. Therefore it is important to explore how such standards can be engaged within the EU accession law. From the outset it should be said that the CJEU has established the principles of supremacy53 and autonomous interpretation of the EU law, which is
47 Open Society Institute “Judicial independence in the EU accession process”, 2001, page 76 48 Article 3 of Statute of CoE;
https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680306052
49Memorandum of Understanding between the CoE and the EU , para 10
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000 16804e437b
50 https://www.coe.int/en/web/about-us/our-member-states 51 https://rm.coe.int/16807096c1
52 Report on the Independence of the Judicial System part I: the Independence of judges CDL-AD
(2010)004; Joint Opinion on the Draft Law on the Judicial System and the Status of Judges of Ukraine by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe CDL-AD(2010)003
independent from the legal concepts used by different national legal orders of the member states54 and also by other international legal orders55. For that reason the thesis will address the meaning of the rule of law in relation to the judiciary in the EU legal order.
The CJEU in its judgment known as Les Verts, referred to the then European Community as a “Community based on the rule of law” which ensures an effective system of legal remedies56. Starting from this landmark case the CJEU has pointed out in several cases the important role of the judges of the member states within the EU legal order57. Accordingly, they have the duty to ensure the effective legal protection in the field of EU Law in accordance with Article 19(1) of TEU and the uniform application of EU law by the CJEU58 through the preliminary ruling procedure provided in Article 267 of the TFEU. In regard to this the CJEU in its ruling Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, (case
C-64/16) emphasized that:
40. Consequently, to the extent that the Tribunal de Contas (Court of Auditors) may rule, as a ‘court or tribunal’, … , on questions concerning the application or interpretation of EU law, which it is for the referring court to verify, the Member State concerned must ensure that that court meets the requirements essential to effective judicial protection, in accordance with the second subparagraph of Article 19(1) TEU.
41 In order for that protection to be ensured, maintaining such a court or tribunal’s independence is essential, as confirmed by the second subparagraph of Article 47 of the Charter, which refers to the access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy.
42 The guarantee of independence, which is inherent in the task of adjudication … is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts.
43 The independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that, … , that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence.
54 Van Gend en Loos V Nederlandse Administratie der Belastingen CJEU; C-26/62; See also Christina
Eckes “International Rulings and the EU legal Order: Autonomy as Legitimacy? CLEER Papers; TMC Asser Institute, 2016/2
55 See further Christina Eckes, “International rulings and the EU legal order. Autonomy as
legitimacy?” Centre for the Law of EU External Relations, T.M.C. Asser Instituut inter-university research centre, the Hague 2016/12
56 Les Verts v Parliament CJEU case 294/93, para 23 57 Foto – Frost; CJEU case 314/85
44 The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions…
From the above case it can be concluded that the EU legal order guarantees the principle of establishing an independent, efficient and impartial judiciary in the member states in order to ensure the effectiveness of judicial protection of EU law. Therefore, according to the EU legal order the EU and its member states share the same standards of the rule of law related to the judiciary similar to those provided for in the CoE legal instruments. Subsequently, the EU Institutions (mainly the Commission) through the monitoring and assessing the accession process transpose the same value of rule of law to the candidate countries. Therefore they refer to the rule of law standards established by the CoE.
III. The vetting process in Albania
In the context of complying with the rule of law principle of EU accession law, Albania undertook a comprehensive judicial reform to reinforce the independence, efficiency, accountability and proficiency of the judiciary and to fight the widespread corruption among the judges and prosecutors59. Part of this reform is the vetting process. It is an extraordinary and temporary measure intended to vet the sustainability of the existing judges and prosecutors and to cleanse the judicial system of those who are found to be incompetent, corrupted or linked to organized crime60. It includes an overall control of the assets, the links to organized crime and the proficiency of judges and prosecutors61. If the final outcome of the three components results negative or insufficient, the relevant decision will vary from the obligation of a judge or prosecutor to undertake a yearly legal training - if professional skills are insufficient - until removal from office62.
This radical measure was justified by the fact that the general public considered the Albanian judiciary to be corrupted and lacking the proficiency and efficiency63. Although, such initiative creates enormous tensions within the judiciary for instance destabilizes its work, diverts the judges’ attention from their normal tasks and creates the risk of the capture of the judiciary by the political force, which control the process64. Consequently, it may jeopardize the independence, accountability, and efficiency of the judiciary. For this reason, it becomes of vital importance the compliance of the vetting process with the rule of law principle. This section looks at this issue. Firstly, it describes the necessity principle that was applied in order to justify the vetting process. Secondly, it analyzes the legal framework of the vetting process. The latter analysis will be done by taking into consideration the role and the relation between the vetting institutions from one hand and IMO and the state agencies that are involved in the re-evaluation process on the other hand.
1. The necessity of the vetting process 1.1 EU requirements
In June 2014, the Council granted Albania the candidate status65 in the light of the Commission’s report. It concluded that the country had continued to implement and
59 For Key priorities see Commission Progress Rapport on Albania 2014, COM(2014)700
final,8.10.2014
60 Venice Commission Final Opinion no 824/2015, March 2016, CDL-ad(2016)009, 61 Explanatory notes of Amendments of the Constitution of Albania, available at
http://www.euralius.eu/images/Recommendations/Explanatory-Note-on-the-Constitutional-Amendments.pdf
62 Ibid 61, Annex Article Ë, Constitution 63 Ibid 61
64 Ibid 60
65 European Council Conclusions on Albania adopted on the European Council Meeting on Luxemburg
consolidate its EU-related reform measures, in particular those regarding the candidate status66. At the same time, the EU institutions reiterated that Albania should take further steps to achieve sustainable results for the reforms.
Particularly to the judicial reform, the Council in its conclusions in June 2014 stated that: “Following the granting of candidate status, Albania should act decisively on all
of the recommendations in the Commission’s report and intensify its efforts to ensure a sustained, comprehensive and inclusive implementation of the key priorities, notably the reform of … the judiciary, the fight against organised crime and corruption, … The Council underlined the importance for Albania to strengthen the independence, transparency and accountability of the judiciary, …67”
Additionally, in October 2014 the Commission in its Progress Rapport on Albania68 stated that “… many shortcomings remain, in particular in the rule of law field.
….Fighting corruption and organised crime are significant challenges. Albania will need to undertake substantial and sustained efforts to address the implementation of the key priorities identified for the opening of accession negotiations. Albania will need to act decisively to: ... pursue a comprehensive reform of the judiciary to reinforce its independence, efficiency and accountability through an inclusive process and in close consultation with the Venice Commission; … there is an overall awareness that deep reform of the judiciary is urgently needed. Further substantial efforts to ensure the independence, efficiency and accountability of the judiciary will need to be made, including through constitutional amendments. Albania will need to vigorously pursue this process with the constructive cooperation of all stakeholders, including through continued cooperation with the Venice Commission… The functioning of the judicial system continues to be affected by politicisation, limited accountability, poor inter-institutional cooperation, insufficient resources and backlogs. … Corruption in the judiciary remains a serious concern.”
1.2 Response of Albania
In order to pursue the judicial reforms in line with the above mentioned recommendations, the Albanian Parliament decided on November 2014 to establish an Ad Hoc Parliamentary Committee on Justice System Reform69 with the aim of undertaking a comprehensive Analysis70 of the justice system in Albania. The Analysis presented many concerns related to the independence, accountability and proficiency in the judiciary. Particularly, it considered the high level of corruption of
66 COM(2014)700 final,8.10.2014 67 Ibid 65
68 Commission Progress Rapport on Albania COM(2014) final, 08.10.2014;
https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2014/20141008-albania-progress-report_en.pdf
69 http://www.reformanedrejtesi.al/baza-ligjore
70 The analysis was completed in June 2015;
the judges and prosecutors as the core problem of the judicial system 71. Accordingly,
it indicated that even though the perception of the public for a corrupted judiciary was high, the level of punishment of the judiciary functionaries was low72. Additionally, according to Ad Hoc Committee a survey of Albania’s judges found that 25% of those judges themselves admitted that their system was corrupted; while 57% of judges admitted that the judicial system was not free, or partly free from political influence (external influences)73.
In July 2015 the Ad Hoc Committee drafted the Strategy74 for the future reform of the justice system and the Action Plan75 for its implementation. The Ad Hoc Committee focused its work among others on finding the legal measures for establishing a corpus of judges and prosecutors with high ethical and professional integrity76 that will strengthen the independence of the judiciary and fight the widespread corruption. Therefore, the Ad Hoc Committee suggested to the Parliament that legislative steps should be taken in order to establish a qualified, independent and impartial ad hoc mechanism that will be tasked to conduct the re-evaluation of judges and prosecutors. The Ad Hoc Committee suggested also that this review process should (i) be based on clear criteria; (ii) be individual and transparent; (iii) be conducted by a professional, independent and impartial corps; (iv) guarantee the right to complain before a body that has the same characteristics as the body tasked with the review, and (v) in accordance with all other guarantees articulated by the Opinion of the Venice Commission on Ukraine; and (vi) with direct assistance for and control on the process by international agencies monitoring and assisting the country’s justice system77. The Parliament of Albania adopted on the 22nd of July 2016 the constitutional temporary provisions related to the vetting process78. It also adopted the Law no 84/2016 “On the transitional re-evaluation of judges and prosecutors in the Republic of Albania.
As the Commission recommended79, the Albanian authorities cooperated with the VC in drafting the vetting legislation in order to guarantee its compliance with the rule of law principle. The VC sustained that the extremely high level of corruption in the Albanian judiciary justified the vetting process80. Furthermore, the VC pointed out that such measure was not only justified but also necessary for Albania to protect 71 Ibid 70, page 251 72 Ibid 71 73 Ibid 71 74 http://www.euralius.eu/images/Justice-Reform/Strategy-on-Justice-System-Reform_24-07-2015.pdf 75 http://www.euralius.eu/images/Justice-Reform/Action-Plan.pdf 76 Ibid 74, page 40 77 Ibid 76
78 Commission “Albania report 2016”, COM(2016)517, 09.11.2016;
https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_documents/2016/20161109_report_albania.pdf
79 COM(2014)331 final, 04.06.2014; COM(2014) final, 08.10.2014
itself from the scourge of corruption, which, if not addressed, could completely destroy its judicial system81.
The EU institutions welcomed the vetting process 82 as a tool that intends to fight the corruption in the judiciary and strengthen the accountability, impartiality and independence of the judges and prosecutors.
The vetting process is in compliance with the rule of law principle if it is introduced in extraordinary situation in order to fight the widespread corruption in the judiciary83. However, it remains important to address the issue whether the legal provisions that establish this measure are in compliance with the rule of law principle.
2. The legal framework of the vetting process
The Constitutional Amendments84 and the Vetting Law85 stipulate the legal provisions of the vetting process. From the outset it should be said that the amended Constitution recognizes in Article 179/b that the vetting process was adopted in order to re-establish the proper function of rule of law and true independence of the judiciary system, as well the public trust and confidence in the judicial institutions.
In order to accomplish this scope the vetting process consists on the re-evaluation of all the sitting judges and prosecutors on three grounds: the assets, background (inappropriate links with organised crime) and proficiency86. The vetting institutions namely IQC, two PCs and AC conduct the vetting process87. Additionally, the IMO was established with the aim to support the vetting process by monitoring and overseeing the entire process88.
2.1 The institutional independence of the vetting process
The members of the vetting institutions are selected and appointed by the Parliament89. Consequently, concerns were raised about their independence90. The
81 Venice Commission, Final Opinion, 14 March 2016, CDL-AD(2016)009
82 Commission report on Albania 2018, SWD(2018) 151 final, 17.04.2018 ; Council Conclusions on
Enlargement and Stabilisation and Association Process, 26 June 2018; http://www.consilium.europa.eu/media/35863/st10555-en18.pdf
83 See Venice Commission Joint Opinion on Hungary, CDL-AD(2015)007,
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282015%29007-e
84 http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)064-e 85 http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)062-e 86 Annex Articles D, DH,E of Constitution
87 Article 179b(5) of Constitution 88 Annex Article B of Constitution 89 Annex Article C, Constitution
90 See the complaints of (i) the Opposition Democratic Party and (ii) the Association of the Judges to
the Constitutional Court of Albania about the alleged violation of the independence of the judiciary by the vetting legislation; Decision no 2/2017 and decision no. 78/2017 of the Constitution Count of Albania
thesis will address this issue by assessing the legal provisions of the status of the members of vetting institutions and the role of the IMO in relation to their status.
a) The independence of the vetting institutions
The re-evaluation process is conducted by the IQC, which consists of four permanent first instance panels having three members each91. The assesse or the PC can appeal its decision to the AC 92. The PC shall present the public interest93. The AC operates within the Constitutional Court and consists of seven judges, which decide in panels of five members94. The members of the IQC and the PCs have the status of the judge
at the High Court95, whereas the members of AC have the status of judges of the Constitutional Court96. The mandate of IQC and PC will expires after five years of operation, whereas the mandate of AC will cease after nine years of operation97. They may not hold any other position or employment during their mandate98.
The legal requirement for appointment to the IQC, PC and AC99 are the same
stringent as those for appointment of the judges100. The members of the vetting institutions have the obligation to disclose their annually assets, that will be made public101, declare and avoid any situation of conflict of interests, which amounts to serious disciplinary misconduct102. The members of the vetting institutions are subject to disciplinary liability103 for any improper or poor performance and for committing acts that harm their independence and impartiality104. The disciplinary procedure is initiated upon the request of another member. A judge elected among the members of AC carries out the investigation. A Disciplinary Commission composed by three elected judges of the AC decides on the alleged misconduct105. The disciplinary
91 Article 179/b; Annex Article C, Constitution 92 Ibid 91
93 Annex Article C, Constitution 94 Annex Article F(1), Constitution 95 Ibid 91
96 Ibid 91
97 Article 179b(8), Constitution 98 Annex Article C(13), Constitution
99 Annex Article C, Constitution ; Article 6,Vetting Law
100 The requirements are the same as for appointment of a judge to the Constitutional Court as well as
to the Supreme Court provided respectively in Article 125 and 136 of the Constitution. According to Article C(5) the member of the vetting institutions shall have a university degree in law, and no less than fifteen years’ experience as a judge, prosecutor, law professor, advocate, notary, senior employees in public administration, or other legal profession related to the justice sector. Candidates for member of the Commission and judges at the Appeal Chamber may not have been judges, prosecutors or legal advisors or legal assistants in the two years prior to their nomination. They shall not have held a political post in the public administration or a leadership position in a political party for the past 10 years before becoming a nominee.
101 Annex Article C(4) of Constitution 102 Article 27(1), Vetting Law 103 Annex Article C(5), Constitution 104 Article 16,Vetting Law
measures are regulated in accordance with the law of the status of the judges and prosecutors 106.
The Constitution provides that the vetting institutions operate and decide independently and impartially107. They perform with accountability, integrity and transparency and with the objective of promoting an independent and competent system of justice free from corruption108.
The abovementioned legal provisions determine the impartiality and independence of the vetting institutions, establish a self–governing disciplinary mechanism and a system for examining the accountability and integrity of their members. Additionally, the law guarantees a transparent vetting process that respects the fair trial principle. Therefore according to the vetting legislation the IQC and AC possess the characteristics of the judicial bodies109.
Nevertheless, in the context of an enormous public perception of widespread corruption and political influence on every areas of governance110, the reliability of the vetting process111 urged the Parliament of Albania to ask for the international assistance in the process. As already mentioned the re-establishment of the public trust and confidence on the judiciary is one of the objectives of the vetting process. Accordingly, the amended Constitution provides for the establishment of IMO that will strengthen the transparency, re-established the public trust in the judiciary and monitor and assist the lawfulness of process112. The VC considered the establishment of the IMO in compliance with rule of law principle as far as it has not decision making.
106 Ibid 105
107 Article 179/b(6); Annex Article C, Constitution 108 Annex Article C(3), Constitution
109 See further VC Amicus Curia for the Constitutional Court of Albania, 12 December 2016,
CDL-Ad(2016)036; ECtHR defines the “tribunal” as a body that must also satisfy a series of further requirements – independence, in particular of the executive; impartiality; duration of its members’ terms of office; guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 (Le Compte, Van Leuven and De Meyere v. Belgium, § 55; Cyprus v. Turkey[GC], § 233)
110 For corruption in Albania see Commission Report on Albania 2018, SWD(2018) 151 final,
18.04.2018.
111 The explanatory notes on the amendments of the Constitution of Albania reads as follow: “This process will be conducted by local structures under strict international supervision, in order to increase the reliability of the process. The presence of international observers shall also be provided, who will have access to the files of judges / prosecutors and shall supervise the entire decision-making process, will assist the process and will provide any kind of assistance that will be necessary for the commission” retrieved at http://www.euralius.eu/images/Recommendations/Explanatory-Note-on-the-Constitutional-Amendments.pdf
b) The role of IMO
The Constitution and the Vetting Law stipulate that the IMO should support the
vetting process113 in order to create a climate of trust and guarantee that the process is conducted with full responsibility114. The IMO is established within the framework of the European integration process and the Euro-Atlantic cooperation and shall be led
by the European Commission115. It appoints the International Observers (IOs), who
monitor and oversee the entire vetting process116. The IOs have at least 15 years
experience as judges or prosecutors in the judiciary in their own countries. IMO and the IOs assist the entire vetting process and are entitled:
• to give recommendations for selecting the candidates of the vetting institutions;
• to request for initiation of the disciplinary proceedings of the vetting institutions; and
• to monitor and oversee the entire vetting procedure.
The role of IMO in the selection of the candidates to the vetting institutions is deemed crucial for guaranteeing a responsible and transparent process. The IMO has to assess
all the applicants and prepare a list with those that fulfill the legal criteria117. The list
of these candidates has to be recommended to the Parliament. The latter has the
constitutional competence to appoint the members of the vetting institutions118. In
January 2017 following a request from the Albanian authorities, the Commission had deployed under its aegis the IMO119. The short term IOs assessed the applicants120. The IMO recommended a list of 67 out of 193 candidates121. The Ad Hoc Committee of the Parliament selected all the candidates recommended by IMO with the exception of one candidate122. The members of the vetting institutions were chosen from the above selected candidates.
Additionally, the IOs play an important role regarding the disciplinary liability of the members of the vetting institutions. The IOs can initiate the disciplinary
113Annex Article B, Constitution
114 Article 17(2) of Vetting Law provides that the reports on disciplinary violations by the public shall
be submitted to the IOs.
115 Ibid 113 116 Ibid 113
117 Annex Article C, Constitution 118 Ibid 117
119 Letter from Director General of Directorate – General Neighborhood and Enlargement Negotiations,
26.01.2017; https://eeas.europa.eu/sites/eeas/files/imoofficial26.01.2017.pdf
120 Annex Article B of the Constitution; Letters on 22.03.2017 and on 07.02.2017, from Genoveva Ruiz
Calavera, Director for Western Balkans for Directorate-General Neighbourħood & Enlargement Negotiations;https://eeas.europa.eu/sites/eeas/files/letter_on_imo_re-deployment.pdf
https://eeas.europa.eu/sites/eeas/files/imoofficial07.02.2017.pdf
121 https://eeas.europa.eu/sites/eeas/files/imo_grc_transmission_letter_to_ombudsperson_april_6.pdf 122
investigation123 of the members of the vetting institutions. The public has the right to
report alleged disciplinary violations only to the IOs. Accordingly, the involvement of IOs in the disciplinary procedure intends to enhance the public trust and to monitor the self-governing disciplinary mechanism.
Until now, a member of the vetting institutions, namely one of the PCs, was found
liable for committing gross violations of the vetting law124. The Disciplinary
Commission dismissed him125. The investigation was initiated by the IOs. Recently,
allegations are made regarding a member of the IQC for taking the decision in conflict of interest. The relevant vetting procedure is about a judge of the Supreme Court who was conformed in the office by the IQC. It was the media that reported this
case to the IMO that is assessing the facts126.
The IOs also have the authority to monitor and oversee the entire re-evaluation process, which will be examined in the next sub-section.
2.2 The vetting procedure
The independence of the vetting institutions shall go along with the independence of the vetting procedure in order to ensure the rule of law principle and guarantee the independence, impartiality and accountability of the judges and prosecutors.
The vetting procedure begins with the compilation of the declarations by the judges and prosecutors. They submit them to the relevant authorities. Accordingly, the proficiency declaration shall be submitted to the proficiency assessment body, namely the current Inspectorate of the High Council of Justice in the case of the judges and the relevant institution at the General Prosecutor office in the case of the prosecutors127; the asset declaration shall be submitted to the HIDAACI128; the background declaration shall be submitted to the CISD129. These institutions
123 Article 17(1) of Vetting Law reads as follow: “…The initiation of disciplinary investigation can be requested by following persons: a) Every commissioner against commissioners; b) Every judge against judges of the Appeal Chamber; c) Every international observer against the Public Commissioner, the Commissioner and judges of the Appeal Chamber.”
124 The Disciplinary Commission in its Decision no 1 date 12.03.2018 listed the following disciplinary
misconducts committed by the PC which are provided in article 16 of the Vetting Law: “4. interference or any other improper influence to exercise the duty of another member; 5. unjustified, intentional or repeated non-performance of his or her respective functions; ….7. repeated or serious breach of the rules of solemnity and rules of conduct in relations with litigants and with the members and personnel of the re-evaluation institutions; 8. repeated and unjustified delays and procrastinations of procedural actions and during the exercise of function”
125 Decision no 1 date 12.03.2018,
http://www.kpa.al/wp-content/uploads/2018/03/vendimi-nr.1-Dt.12.03.2018.pdf; see also https://exit.al/en/2018/03/06/public-commissioner-heral-saraci-accused-of-sabotaging-vetting/
126 https://exit.al/en/2018/06/01/oto nm-reviewing-kpk-commissioner-zhegus-conflict-of-interest/ 127 Article 41, Vetting Law
128 Article 31, Vetting Law 129 Article 35, Vetting Law
respectively review the declarations. Each of them prepares a report for each assesse and submits it to the vetting institutions.
Upon receiving the reports, declarations and the relevant documents of the files of the assesses the IQC initially and AC in case of appeal shall investigate on the facts and assess all necessary circumstances130. The process shall be based on the principles of equality before the law, constitutionality, lawfulness and proportionality. It shall guarantee the rights of the fair trial131 and respect the fundamental rights of the assesse132.
In establishing facts and circumstances the IQC and AC may obtain legal documents; collect statements from the assesse and the public, testimony form witnesses, expertise; take inspections etc.133 They cooperate with state institutions, individuals or
legal entities, domestic or foreign, aiming at verifying the truthfulness and accuracy of the declarations made by assesse. The IOs have similar authorities regarding the investigation procedures.
Part of the investigation and verification process is the information of facts and circumstances related to each component of the vetting process gathered by the
public134. For this purpose any individual can file the relevant complaint on the IQC
webpage.
During the investigation process the assesse is obliged to cooperate with vetting institutions and his/her readiness to the cooperation is taken into account on the
decision making process135.
At the termination of the investigation, the assesse has the right of access to his/her file. Afterwards the IQC invites the assesse to a public hearing. The IO takes part in it. The assesse is heard about the findings of the IQC and can answer the questions made by IQC and IO.
If the IQC determines that an assessee requires disciplinary measures, it shall issue a reasoned decision that order either the disciplinary measure of one-year suspension in order to undertake professional training or the disciplinary measure of dismissal136. Otherwise it shall confirm the judge or the prosecutor in the office137.
130 Annex Article Ç , Constitution; Article 45, Vetting Law 131 Article 4(5), Vetting Law
132 Article 179/d, Constitution 133 Article 45, Vetting Law 134 Article 53, Vetting Law 135 Article 48, Vetting Law 136 Annex Article E, Constitution 137 Annex Article B, Constitution
Against the decision of the IQC the assessee and the PC can file an appeal to the AC138. The IOs are entitled to submit recommendation to the PC to file an appeal. For the decision not to follow such recommendations, the PC is required to issue a written
justification139. The IO has exercised this task by recommending on 13th of July 2018
the appeal against the decision no 24, date 13.07.2018 of the IQC that confirmed in
office the President of the Constitutional Court of Albania140. The PC has to take a
decision until 28th of July 2018.
The AC has the right to review the facts and remedy any procedural errors of IQC
taking into account assessees’ fundamental rights141. The AC may uphold, modify or
overrule the IQC’s decision and may not remit the case to the IQC142.
The written decision of the IQC or AC is taken in closed door, in the presence of the
IOs and announced publicly at the end of the hearing143. The dissenting or concurring
opinions should be written as well144. The IOs are entitled to write a dissenting or
concurring opinion that shall be attached to the decision145.
Although the legal provisions guarantee the rule of law principle, the concern that they might violate the independence, impartiality and accountability of the judges and prosecutors was raised146. It deals with the involvement in the vetting procedure of the state institutions namely HIDAACI, CISD, Inspectorate of the High Council of Justice in the case of judges and relevant institution at the General Prosecutor office in the case of prosecutors. The claim is whether the involvement of these institutions in the assessment procedure violates the principle of separation and balancing of powers and subsequently endangers the independence of the judiciary. The thesis will examine this concern with the aim of showing how the law should be applied in order to safeguard the judicial system from the external influences.
a) The role of state institutions
The asset assessment is done with the purpose of identifying assessees who possess or use assets greater than can be legitimately justified, or who have failed to accurately and fully disclose their assets and those of their related persons. After receiving the declaration, the HIDAACI will carry out its audit. When the review is completed a detailed and reasoned report is prepared and submitted to the vetting institutions. The
138 Annex Article F(2), Constitution with exception that PC shall not the appeal in case IQC decides on
one year suspension with education
139 Annex Article B(3)(c), Constitution
140 http://www.oranews.tv/article/kpk-e-konfirmoi-ne-detyre-onm-kerkon-apelimin-bashkim-dedjan 141 Annex Article F(3), Constitution
142 Ibid 141; Article 66, Vetting Law 143 Article 55, Vetting Law
144 Annex Article F(4), Constitution; Article 55, Vetting Law 145 Ibid 90
