Albania

Published on ottobre 25th, 2021 | by Eurasia News

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The role of Open society foundation in putting the justice system under the control of the Albanian socialist party through the judicial reform

International Institute for Middle East and Balkan Studies (IFIMES)[1] from Ljubljana, Slovenia, regularly analyses developments in the Middle East, Balkans and also around the world. Prof. Dr. Sali Berisha is former President & Prime Minister of the Republic of Albania. In his text entitled “The role of Open society foundation in putting the justice system under the control of the Albanian socialist party through the judicial reform” he analyses the Justice System reform in Albania and the role of OSF by replacing the rule of law with the direction of the party-state, which now controls ninety percent of all powers in Albania.

Executive Summary

July 2021 marks five years since the approval by Parliament of the constitutional package for the Reform of the Judiciary in Albania. It is a body of legislation that brought about a judicial system under the total control of the executive. Despite efforts to deny, the reform is the brainchild of the Open Society Foundation (OSF), which initiated, promoted and financed the process. OSF associates drafted its legislation. Following its failure and the dramatic collapse of public support for the reform and the judicial system[2], prominent OSF representatives in Albania and Europe have tried to deny the role of OSF as the crucial driving force of the reform[3].

Despite this, OSF’s documents, as well as other official ones, prove that:

  1. OSF put forward the idea to reform the judicial system following Edi Rama coming to power. It laid out this idea in OSF’s Strategic Plan 2014-2017, published in December 2013[4].
  2. The OSF was not simply the originator and initiator of the reform but also its financier and promotor[5].
  3. In May 2014, the OSF organized a series of round tables with representatives of interest groups to debate essential elements of the reform[6] .
  4. Soon after, the OSF and the government established the brain of the reform – the Group of High-Level Experts of the Reform (GHLE), which consisted of OSF associates, former ministers, former deputy ministers, and senior Socialist Party (SP) officials, as well as legal experts from the US and EU embassies[7]. Adopting the principle ‘he who pays decides’ OSF paid GHLE members throughout the reform[8]. GHLE denied membership to opposition experts or civil society political unaffiliated experts. 
  5. In its capacity as the brains of the reform, GHLE’s mission was to draft the judicial reform’s constitutional amendments and organic laws, which were approved only by majority members in the Special Parliamentary Commission for the Reform (SPC). Although the opposition had no veto rights and its experts were not admitted as GHLE members, it decided to take its seats in the SPC, under the sole condition, that the draft of the constitutional amendments prepared by GHLE and approved only by majority votes in SPC be submitted for review to the Venice Commission together with the objections of the opposition. Parties also had to accept the recommendations of the Venice Commission.
  6. OSF undertook to carry out opinion polls regarding the judiciary and its reform process. The outcome of such opinion polls was in contrast to those conducted previously by other serious international polling companies. The OSF used its polling results to orient the GHLE and to promote its reform propaganda.
  7. After the start of the reform process, it became clear that GHLE had: a) proposed a sui generis model of a judicial system unlike anywhere else in the world and b) under GHLE’s model, the primary purpose of the reform was to put the judicial system under the control of the government.
  8. The 2015 two drafts of the judicial reform were sent to the Venice Commission, as persistently required by the opposition. The latter appended a list of observations to these drafts. In December 2015 and March 2016, the Venice Commission rejected two drafts of constitutional amendments presented by GHLE, arguing that the draft amendments would put the judiciary under the control of the executive[9]. In contrast, the opposition’s observations accompanying the draft amendments were in line with the recommendations of the Venice Commission.
  9. Following the Venice Commission’s rejection of both drafts of GHLE and SPC, and at the persistent request of the opposition and the intervention of senior international officials, the final draft of constitutional amendments did not include the constitutional provisions for the capture of the judicial system. On 21st July 2016, the Parliament consensually voted the package of constitutional amendments for reform of the judiciary, which was in line with the recommendations of the Venice Commission. For its role in defending the democratic principles of justice, the opposition received congratulations from some international officials of the highest level. It happened despite efforts by the OSF and the government to present the opposition as an anti-reform political force to cover up their failure.
  10. After the parliamentary approval of the constitutional package, the government and GHLE broke the agreement that was reached with the opposition. They reintroduced all the screening bodies to select candidates in the governing bodies of the judiciary in the organic laws. The opposition and the Venice Commission previously rejected these screening bodies as mechanisms for capturing the court. The government pushed these laws through Parliament using only its votes and violated the agreement with the opposition to approve this legislation through consensus.
  11. Once the legal amendments had received parliamentary approval, the government run to capture the judiciary, by appointing its most loyal devotees, Sokol Sadushi, Ardian Dvorani, and Maksim Haxhia, all GHLE members and OSF associates, to chair the screening bodies that selected the candidates from civil society, academia, and advocacy for the governing bodies of the judiciary.
  12. By using double standards, these screening bodes selected candidates for the governing bodies of the judiciary people who were politically loyal to the majority but did not meet the legal and constitutional criteria for their positions. They eliminated primarily those candidates who did not have political affiliation or support by the SP.
  13. Parliament appointed the selected candidates to lead the governing bodies of the judicial system in clear violation of the constitutional and legal criteria. These included former judges and prosecutors of political trials during the communist dictatorship, ex-ministers and deputy ministers, brothers, and relatives of Socialist Party ministers, OSF former staff and associates such as Artur Metani, Genti Ibrahimi, Ilir Panda, Sokol Sadushi, Ardian Dvorani, and others[10].
  14. In addition, Mr. Edi Rama blocked the Judicial Appointments Council (JAC) activity for two consecutive years to capture the High Inspectorate of Justice and the Constitutional Court as JAC selects the candidates for the above institutions[11]. In one of these blocks, the US Ambassador in Tirana D. Lu, without any legal argument, publicly stood against JAC and supported Mr. Rama[12]. Consequently, throughout this period, the country remained without a Constitutional Court and High Inspectorate of Justice. The official reason for this deadlock was that JAC members had not undergone the vetting process. The real reason was that in 2017 and 2018, the government could not control the makeup of JAC as the selection of its members was done by lottery. Meanwhile, the Venice Commission observed that the Constitution or the law does not require the vetting of JAC members, and JAC’s activity shouldn’t be blocked [13]. Following the appointment of A. Dvorani as chair of JAC in 2019, the socialist government, did not demand that JAC members undergo a vetting process.
  15. Furthermore, in its efforts to capture the justice system, the government used the vetting of judges and prosecutors as a witch hunt and an instrument of political pressure. Adopting double standards, the government used the vetting process to dispense with most judges and prosecutors who had ruled against the government interests in court cases or against criminal gang leaders connected to the government. Meanwhile, other judges and prosecutors found to have committed the same or much more serious breaches remained in their positions because they were considered loyal to the Socialist Party. Moreover, the law on vetting does not apply to the candidates coming from outside the judiciary – their vetting is done by HCJ but not by the vetting institution – the Independent Qualification Commission and the Appeals Chamber – it is unique in the world that criteria and procedure for the election of new judges are much less demanding and rigorous that the confirmation of serving judges. Some of these judges, who were vetted by the HJC are the High Court judges S. Sadushi, I. Panda, and E. Pupo. Not only their vetting was not done following the same criteria that applies for the serving judges, but the results of their vetting by the HJC, have been kept confidential in clear violation of the constitution and, undoubtedly, also as a means of blackmail towards them. 
  16. To ensure the capture of the justice system, GHLE and the government selected the top – down method for the vetting process, which means the process had to start with the Constitutional and Supreme Courts. Indeed, a decision taken by district courts judges does not have political implications and can always be ‘corrected’ in appeal. This destructive method allows for intervention from above in the process and creates a vacuum. Still, the opposition considered vetting a vital process and supported it. However, the opposition condemned the use of double standards and has insisted on using the bottom-up method, which does not allow for intervention from above and does not create a vacuum in the judicial system[14].
  17. The Top-Down method of vetting and the ensuing judicial vacuum, and the open attempts by the government to capture at any cost the Constitutional Court and the High Inspectorate of Justice left the country for almost four years without the High Inspectorate of Justice, Constitutional Court, and Supreme Court. To this day, Appeal Courts and Courts of First Instance have only a quarter of the required judges, the Supreme Court half of judges and the Constitutional Court is not yet complete. The judicial vacuum of the last five years has created a backlog of a hundred thousand cases, some 36000 of which are still waiting to be considered by the Supreme Court, a body that today has only nine out of nineteen judges. Experts believe that it would take two decades to clear the current backlog of legal cases. Five years from the parliamentary approval of the judicial reforms legislation, only 420 out of 830 judges and prosecutors have undergone the vetting process, and 200 have failed in vetting and have left the justice system. 
  18. The coup de grace of the capture of the judiciary was the decision by the High Judicial Council to outsource the administration of case files of the Supreme Court to the East-West Management Institute (EWMI), in an illegal and unconstitutional agreement. The head of EWMI in Albania is Delina Fico, spouse of the Minister of Interior B. Çuçi and former wife of Edi Rama. Mrs. Fico is also a former head of OSF. EWMI legal experts are members of the Lawyers Club of the Socialist Youths and do not meet the minimum legal standards for legal advisors to the Supreme Court. The law envisages that such advisors should be magistrates or have specified work experience and qualifications and that they, as per Article 179/2 § 4 of the Constitution should undergo the vetting system same as the judges. None of these persons filtering the Supreme Court cases has undergone any form of vetting[15]. Not only such agreement is in breach of Article 179/2 § 4, but it also violate the right to a court established by law, as provided by Article 6 § 1 of the European Convention of Human Rights. 
  19. Today, ninety percent of court cases go in the government’s favor or favor of gangs and drug cartels connected to the government. Before 2013, 65-70 percent of court cases against the government favored citizens or businesses. From September 2005 to December 2006, the Serious Crime Prosecution Office, an anti-corruption task force, successfully prosecuted 1050 members and gang-leaders of criminal groups in the country, including hundreds of low and high-level officials on corruption charges. Albania became a member of NATO, signed the Stabilization and Association Agreement, got visa liberalization within the Schengen area and the recommendation by the European Commission to grant Albania candidate status, a four-fold increase of foreign investments and economic progress, lifted the country from a poor to the middle-upper-income level.
  20. In the past five years, the bosses of the brutal criminal gangs and drug cartels linked with the government have become untouchable. Many gang leaders and serial killers who have been serving prison sentences for life before 2013 have got freedom, released due to their connections with the government officials. Albania has become the top producer of cannabis in Europe, the main road of heroin to the continent, and a crucial hub of cocaine from South America in the region. Albania is considered the first and unique Narco-state in Europe[16]. The fight against corruption targets minor cases and low-level officials. Files on high-level corruption are left untouched. According to the World Bank, Albania today ranks second highest in the world for bribes[17]. State capture is the most advanced in the region[18]. No major foreign investor has ventured into the country, and some of those here have left. The non-functioning of the Supreme Court and the Constitutional Court for almost four years has been one of the main reasons for the EU’s refusal to open membership negotiations with Albania.
  21. In conclusion: Albania’s judiciary reform initiated, sponsored, and promoted by the OSF destroyed the existing fragile judicial system. It replaced it with a sui generis system that the socialist government fully captured. In doing so, it broke the backbone of the rule of law in Albania.
For the past five years and in future decades, this reform has denied and will continue to deny Albanian citizens the right to a fair judicial process. Thousands and thousands of elderly citizens, due to the giant stock of court files, will not be able to live long enough to see the court rulings on their claims.

The partisan actions of the OSF have done incalculable damage to Albania’s fragile democracy. First, by firmly placing the NGO networks under the Socialist Party umbrella, the OSF reintroduced the monist model in Albania. Today, NGOs are no longer independent voices in society; instead, they have become organizations manipulated by the former communist party. Secondly, by placing the judiciary under the control of persons belonging to or with close ties with members of former communist government, the OSF has de facto contributed in replacing the rule of law with the direction of the party-state, which now controls ninety percent of all powers in Albania[19] .

For all the above, it is imminent for the US Congress, European Parliament, and Parliamentary Assembly of the Council of Europe to legislate against the partisan political interference by multi-billionaire George Soros outside the US territory or at least in former communist countries.

In the end, it is most urgent to implement the recommendation of the Venice Commission to expedite or amend the vetting process, as it is imminent to perform other legal interventions – with the assistance of the Venice Commission:

  • to address the question of the enormous stock of court files based on legal procedure, and
  • Getting the justice system out of government control is vital for the rule of law and the future of democracy in Albania.

1. The role of the Open Society Foundation of George Soros in putting the Albanian judiciary under the control of the Socialist Party of Albania through the judicial reform

In Albania and elsewhere, it is widely acknowledged that George Soros has managed to exert almost total control over the Albanian non-governmental organizations (NGOs) by financing them through the Open Society Foundation in Tirana (OSFA)[20].

In doing so, other actors that could have expressed different views from those of the network sponsored by the OSF have been outpriced from the market. This lack of diversity, or almost monist control of civil society, has caused incalculable damage to a country and society that emerged from absolute monism in the not too distant past. The NGOs in Albania today are under almost the total influence of the Socialist Party of Albania. This has diminished their diversity and standing in public opinion.

Using the same modus operandi, the OSF has played an essential role in restructuring the Albanian judiciary through the so-called reform of the judiciary. The sole purpose has been to put the justice system to the service of the Socialist Party of Edi Rama – a close friend and protégé of George Soros[21]. The OSF achieved this by taking over the brain of the reform process through the appointment of people financed and controlled by the OSF and the Socialist Party. These include positions to the Group of High-Level Experts and other institutions established as parts of the judicial reform, such as Independent Commission of Qualifications (ICQ), The Special Appeal Chamber (SAC), High Inspectorate of Justice (HIJ), High Council of Prosecutors (HCP), or the High Judicial Council (HJC). In almost all cases, these appointments violated constitutional or legal criteria.

Following a series of evident failures of judicial reform in Albania and a clear drop of the trust of it in society, there is now a widespread debate, both outside and in the country, about the role played in this process by George Soros and the Tirana office of Open Society Foundation. At present, leaders of this Foundation in Albania and Europe are trying hard to deny the role of the organization in the forewarned failure of the judicial reform[22].

The Democratic Party was determined to participate in the judicial reform process and contribute to setting up the universal principles of checks and balances and the rule of law. But, as it will be outline below through facts and documents, the OSF and the Socialist Party of Albania (SPA) did all they could to take over the Albanian justice system and thus destroy any hope of reforming it.

1. 1.  Following the elections of 2013, the Open Society Foundation in Tirana instigated a package of constitutional changes and a series of debating forums on the reform of the judiciary. These were done to support the government of Edi Rama, a close friend of George Soros, to put the Albanian judiciary under the firm control of persons belonging to or with close ties with members of former communist government party, like had already happened with the NGOs. To this end, by the end of 2013, the OSF compiled the 2014-2017 Strategic Plan, which outlined the constitutional and legal changes that were necessary to pave the way for Albania’s judicial and electoral reforms[23] .
1. 2. From 8th to 12th May 2014, OSFA organized, ran, and financed several debating forums and workshops on constitutional changes and various aspects of judicial reform[24].
1. 3. In the aftermath of these consultations, the majority, in cooperation with the OSF, established the Special Parliamentary Commission for the Reform of the Judicial System (SPC). They also found the Group of High-Level Experts as the brain of the reform of the judiciary (GHLE). The members included former ministers and deputy ministers of the Socialist Party such as I. Panda, and others, judges and prosecutors of political trials from the time of the Stalinist dictatorship, such as A. Dvorani, S. Sadushi, the author of the Stalinist Constitution of 1974 and nephew of the dictator Enver Hoxha, L. Omari. In addition, it included lawyers from the OSF branches in Albania and elsewhere. In general, all the Albanian experts of this Commission were either former staff or associates of OSF[25]. There were no representatives of other foundations or groupings.
1. 4. The duty of the Group of High-Level Experts (GHLE), as the brain of the reform, was to compile the constitutional amendments and the necessary legislation for the judiciary reform. Members of GHLE, working on the principle he who pays decides, were directly financed by the Soros Foundation until the completion of the reform[26].
1. 5. To legitimize the OSF’s role in the reform process, at the latter’s request, the Special Parliamentary Commission headed by Fatmir Xhafa, a former prosecutor of political trials during the dictatorship, and now a socialist deputy, on December 2nd, 2014, issued decision number 5 to: “1. Approach the Soros Foundation with a request for cooperation, based on the expressed interest of the leaders of the Foundation to support the work of the Commission in general and that of the group of experts and the Technical Secretary in particular; 2. Prepare and sign a memorandum of cooperation between the Special Commission and Soros Foundation which would specify the terms of reference of such cooperation”[27].
1. 6. In early 2015, OSFA started carrying out opinion polls to support the Group of High-Level Experts’ work to gauge the direction of travel of the judicial reform. For example, the Foundation, among other things, emailed a questionnaire to the academic staff of the Law Faculty of the University of Tirana.
1. 7. The decisive role of the Soros Foundation in the judicial reform process was publicly confirmed in December 2015 in a declaration by the chairman of the Special Parliamentary Committee, Fatmir Xhafa. In his address, Mr. Xhafa stated: “I would like to express my gratitude to the Soros Foundation, to Andi: the Executive Director and his tireless staff for their strong technical and financial support which has been decisive in the initiation and good progress so far and the need for a project of constitutional changes in the country.[28]”
1. 8. As the Rama government lacked the necessary parliamentary votes for constitutional changes, it invited the opposition to participate in the Special Parliamentary Commission for this reform. It did not, however, against all precedents, agree to approve the project for constitutional and legislative changes in consensus with the opposition. Its refusal to do so was publicly endorsed by the EU Ambassador in Tirana, Romana Vlahutin, an old associate of the OSF’s branch in her country. She publicly declared there was no need for such an agreement.
1. 9. Similarly, the Group of High-Level Experts (GHLE) flatly refused to include members from the opposition under the absurd excuse that they were affiliated party experts while allowing membership to former ministers, former deputy ministers, and former senior officials of the Socialist Party. Experts from the opposition were generally not allowed to attend meetings of the GHLE. Even the few sessions they were allowed to participate in, they had no power to put forward any draft legislation or vote through their implementation. They acted as consulting experts to opposition MP’s who were members of the Special Parliamentary Commission.
1. 10. Despite the refusal by the majority and the Group of High-Level Experts (GHLE) to approve through consensus the draft legislation for the judicial reform and not admitting opposition experts as members in GHLE, the opposition accepted the invitation to join the Special Parliamentary Commission for the Reform of the Judiciary (SPC). The opposition decided to participate under the condition that the draft legislation that would come out of GHLE and voted by SPC without opposition consensus should be submitted for assessment to the Venice Commission together with the opposition’s objections and for both parties to accept the Commission’s recommendations. Initially, the government turned down the opposition’s proposal to take the Venice Commission as arbitrator, but it was later forced to agree under pressure from the USA and EU.
1. 11. The opposition MP’s committed themselves in the process with the best intentions. They did everything in their power could for the reform to succeed and consolidate an independent judicial system that would not allow the government to use it as a branch of the executive. But it soon became clear that the Group of High-Level Experts, was planning a sui generis model of the judicial system that did not exist anywhere else. This was done to capture the judicial system and put it under the control of the government of the Socialist Party.
1. 12. In October 2015, the Group of High-Level Experts (GHLE) completed their work on the draft of constitutional amendments, approved in the SPC only by the majority. The legislation was submitted for the attention of the Venice Commission, together with the objections of the opposition. In December that year, the Venice Commission rejected 37 of 63 articles of the draft constitutional amendments compiled by GHLE and voted by SPC, arguing that the articles contravened the international principles on the judiciary’s independence and placed the justice system under the control of the executive. The opposition’s objections to this project were generally in line with the recommendations of the Venice Commission[29].
1. 13. After the first failure, the majority once again did not agree to work by consensus with the opposition. In January 2016, a new draft of constitutional amendments was submitted to the Venice Commission. This was prepared by the GHLE and approved by the SPC with the votes of the majority. Once again, the draft amendments were sent together by a record of objections of the opposition.
1. 14. In March 2016, the Venice Commission, in its assessment, rejected several amendments from the second draft, considering them once again as a means of putting the judiciary under the control of the executive. Again, the objections of the opposition were generally in line with the recommendations of the Venice Commission[30].
1. 15. Following these two failures, the majority was compelled to accept in principle to work through consensus with the opposition in drafting the articles of the constitutional package and the organic laws on the Judiciary Reform and following the Venice Commission recommendations.
1. 16. But the OSF, civil society organizations financed by the OSF, media outlets controlled by the government, and even Ambassador Lu and Ambassador Vllahutin engaged in a propaganda campaign to cover up their apparent attempts to capture the judiciary demonstrated by the rejection of the draft amendments by the Venice Commission. They presented the majority as the force in favor of the judicial reform and the opposition as a force against it. Their only argument in this regard was the unwavering position of the opposition for full implementation of the recommendation of the paragraph 88(1) of the of Venice Commission opinion, also known as the recommendation of reserved seats, to avert the capture of the judiciary[31].
1. 17. In this context, from early April until July 21st, 2016, the Group of High-Level Experts, members of the majority in the Special Parliamentary Commission and Ambassadors Lu and Vllahutin, did all they could to put pressure on the opposition to drop its insistence on the application of recommendation 88(1) of the Venice Commission. This recommendation prevented the capture of the judiciary by the majority. It stipulated: If the political parties do not agree on the qualified majority required to elect lay members of the new institutions, they may opt for a proportionate system guaranteeing the opposition a representation within those collective bodies[32]. The majority was categorically against this recommendation of the Venice Commission, insisting on imposing controlling barriers in the selection process of candidates for the senior positions in the judiciary. This deadlock was resolved by the direct involvement of Mrs Victoria Nuland, then US Assistant Secretary of State for European and Euroasian Affairs, during her visit to Tirana in the second week of June 2016. She managed to unblock the situation through a proposal that fully preserved recommendation 88 of the Venice Commission[33]. But once again, the majority continued in its determined attempts to block the reserved seat formula until two hours before the vote on the constitutional package.
1. 18. The pressure on the opposition to withdraw its support for the formula of the reserved seats culminated in a protest by a group of youths in front of the parliament building on July 19th, 2016. Heading the protest was US Ambassador Donald Lu, who, in his effort to portray the opposition as the stumbling block of reform, addressed the demonstrators through a loudspeaker and called on the leader of the opposition, Mr. Basha, to keep his promise and approve the amendments demanded by the majority[34].The majority was categorically against this recommendation of the Venice Commission, insisting on imposing controlling barriers in the selection process of candidates for the senior positions in the judiciary.
1. 19. Furthermore, Ambassador Lu carried out a campaign of intimidation by sending threatening messages to some Democratic Party MP’s. This was done to ensure that the constitutional amendments were voted through, as wanted by the majority, a move that was in contradiction to the recommendations of the Venice Commission and Assistant Secretary Victoria Nuland’s proposal. The media published the threatening messages of the ambassador Lu sent to the opposition MP to incite their rebellion over the principled stand of their party[35].
1. 20. This situation was unblocked by another direct intervention of Assistant Secretary Victoria Nuland and the involvement of others, including the Commissioner for Enlargement and Neighbourhood policy of the European Commission Johannes Hahn, senior officials from the German Chancellery and Bundestag MP’s. All of them supported the correct position of the opposition towards recommendation 88(1) of the Venice Commission. The Socialist League for Integration party left the majority coalition, and its MP’s threw their support behind the opposition. This made it possible for the draft amendments on the Reform of the Judiciary to be voted unanimously in parliament on July 26th, 2016. The next day, the leader of the opposition, Lulzim Basha, received congratulatory phone calls from the German Chancellor Angela Merkel, Assistant Secretary Ambassador Victoria Nuland, and the EU Commissioner for Enlargement and Neighborhood Policy J. Hahn. They all praised the essential role played by the opposition in the reform process.

2.    The opposition’s determined objection to the capture of the judiciary by the Socialist Party

2. 1. The opposition vehemently opposed the complete capture of the judicial system by the ruling majority with the support of OSF that followed the parliamentary approval of the constitutional package. This happened through two primary organic laws for the judiciary reform; the Law on Governing Bodies of the Judicial System and the vetting law.Soon after the unanimous parliamentary approval of the constitutional package, the government decided to approve the organic laws using only its parliamentary votes, with the sole purpose of capturing the judicial system. This violated the agreement between parties for consensual voting of the constitutional amendments and the organic laws on the judiciary. In the Bill on the Governing Bodies of the Judicial System, the government reintroduced articles to establish screening bodies rejected by Venice Commission and refused by the opposition. The purpose of these screening bodies was to enable the government to control the selection process of candidates from the civil society, universities and advocacy for lay members of the governing bodies of the judicial system. To this end, on October 6th, 2016, just twenty-four hours before the parliamentary vote, only one deputy from the ruling majority submitted 103 amendments to the Bill on the Governing Bodies of the Judicial System, which completely changed the legislation. This was done in complete silent agreement with the Group of the High-Level Experts and ambassadors Donald Lu and Romana Vllahutin. Following parliamentary approval of the Act, the opposition appealed it to the Constitutional Court, which had only seven out of nine members. The Constitutional Court ruled against the screening bodies envisaged in the Act and voted by four votes to three to reject it. But the legislation remained in force ex-lege as the ruling to veto the legislation required five votes. The sessions of the Constitutional Court were closely followed by the US and EU ambassadors Mr. Lu and Mrs Vlahutin, who were present in the courtroom in a clear demonstration of outside pressure[36]. After adopting the legal basis for capturing the judicial system, the government started the implementation of the process. To this end, it appointed Socialist Party’s loyalists in charge of the screening bodies that would put forward for parliamentary approval a list of lay candidates from civil society, universities, and advocacy for the new governing bodies of the judiciary.
  • For instance, Sokol Sadushi, a member of the Group of the High-Level Experts (GHLE) and director of the School of Magistrates, was appointed to lead the body selecting the candidates from the universities. He had previously been a member of the Constitutional Court and had violated impartiality regulations by attending meetings of the Socialist Party when in opposition.
  • Ardian Dovrani, a member of the GHLE, was appointed head of the body, selecting candidates from civil society. When he was a member of the Supreme Court, he also attended meetings of the Socialist Party. He delegated the responsibility of chairing every session of this selecting body to the Executive Director of the Open Society Foundation in Tirana, Andi Dobrusha.
  • Maksim Haxhia, a member of the GHLE, Head of the Chamber of Advocates, was appointed head of the body, selecting candidates from the advocacy according to the wishes of Edi Rama. He had been implicated in a multi-million-euro sordid affair, directly linked to Edi Rama, for the construction of the School of Advocates. The matter has been exposed extensively in the media[37].
The selection process carried out by these three bodies was done in violation of the Constitution, the law, and through double standards. In many cases, the selected candidates did not meet the minimum constitutional and legal requirements. Some were former prosecutors, judges, or investigators in the political trials of the communist dictatorship. Others were former collaborators of the communist secret police, former ministers of the Socialist Party, people with an apparent conflict of interest or who could not prove to have regularly paid their taxes or who had been fined by revenue authorities. Under the constitutional and legal requirements, these misdemeanors warranted their disqualification. Finally, the International Monitoring Operation (IMO) observes that most selected candidates were of average professional quality, while the Constitution stipulates that they should be outstanding lawyers.

According to the Constitution, the secretary-general of parliament, in agreement with the IMO, selects and submits the list of candidates for the governing bodies of the judiciary to the parliament.

Contrary to this constitutional requirement, the secretary-general of parliament, Genc Gjoncaj, a former senior Socialist Party high official, presented parliament with lists of candidates without considering the opinion of IMO. Most of them did not fulfill the minimal constitutional and legal requirements. The IMO had disqualified a lot of them, but the candidates won. They had the support of the Socialist Party. The opposition considered these lists invalid and brought a suit against Mr. Gjoncaj for a constitutional violation.

Finally, the whole selection process of candidates by the screening bodes and the parliamentary secretary-general was entirely conducted without the critical oversight of the Independent Monitoring Commission. This body had a legal duty to monitor the selection process of candidates who would be submitted for parliamentary approval as leaders of the Governing Bodies of the Judiciary. But this did not happen because parliament, in violation of law and to avoid such monitoring, never established the Commission.

2. 2.  The opposition took a critical standing towards the capture of the Governing Bodies of the Judiciary, the Justice Appointment Council, High Prosecutorial Council, the High Judicial Council, and the High Justice Inspector

The appointments of all high officials of the new institutions were in clear violation of constitutional or legal criteria, in a conflict of interest, and by applying double standards. The sole purpose of such appointments was to facilitate the capture of these institutions by the government. Let us look at the following facts:

2. 2. 1. The three leaders of the high institutions of the justice system, Messrs Dvorani, Sadushi, Ibrahimi, Vorpsi and others, such as Ilir Panda, a member of the Group of High-Level Experts (GHLE), were appointed in violation of the agreement between the ruling majority and the opposition. The agreement specified that to avoid a conflict of interest, members of the GHLE would not stand for office in any of the governing bodies of the judiciary for six years. This was because the legislation that GHLE, among other perks drafted, accorded to these high positions a remuneration of up to 15 times higher than the average salary in the country.

2. 2. 2. Head of the Justice Appointments Council (JAC) was appointed Ardian Dvorani, a member of the Group of High-Level Experts and a collaborator of OSFA. Mr.Dovrani is a former zealous prosecutor during the communist regime who, on 13 December 1990, had terrorized a detained group of youths in Shkodra who had pulled down a statue of Stalin. He had requested that they be given a 15-year prison sentence for acts of terrorism against people’s power[38]. In violation of the Lustration Law, in February 2005, Ardian Dvorani was appointed by former communists as a member of the Supreme Court for a 9-year term. At the end of his tenure, he continued in this position despite a decision in 2016 by the Constitutional Court requesting him to step down. He finally left office in 2020 when he was removed through a particular ruling of the High Judicial Council[39]. The ruling followed a report by the Venice Commission on June 19th, 2020, no.978/2020[40], which had argued that as head of JAC, Mr. Dvorani had violated the law and the Constitution. The report points out that Mr. Dvorani had prevented the JAC from working transparently. Furthermore, the report of the Venice Commission says that article 41 of JAC regulation had violated the Constitution and the law by denying the constitutionally mandatory presence of the People’s Advocate (Ombudsperson) as an observer in the meetings and operations of the JAC[41]. The report stresses that Mr. Dvorani broke the law by failing to ensure the audio recordings of the meetings of the Council and to publish on the website of the Supreme Court summaries of minutes of these meetings. Additionally, the Venice Commission found that Mr. Dvorani had not informed or consulted other JAC members, as required by law, about the order of submitting to the president and parliament the nominations for the vacant posts of the Constitutional Court. Through his actions, Dvorani had caused a deep constitutional crisis according to the Venice Commission that had rendered all but one appointment to the Constitutional Court potentially unconstitutional[42]. Despite all of these findings by the Venice Commission, The US Department of State selected Dvorani as one of the champions of Judiciary Reform of Albania[43] .

The vetting process of Ardian Dvorani by the Independent Commission of Qualifications (ICQ) is a classic example of double standards when assessing the source of assets and of his rulings in total conflict of interest as a Justice of Supreme Court. During the vetting process, it emerged that Mr. Dvorani had not declared 82 thousand euros belonging to him and his family. He justified this omission by claiming a memory lapse, and surprisingly, this justification was accepted by the members of the ICQ. A similar memory lapse by a member of the Constitutional Court, Besnik Music, who had forgotten to declare 16 thousand euros, was deemed unacceptable by the ICQ. He was forced to step down. In contrast to the stance they took on Dvoran’s “forgetfulness,” the KPC considered that Judge Fatmir Hoxha of the Constitutional Court had concealed assets by not mentioning in the 2003 annual statement of his wife’s deposit of ALL 330,000 (approximately EUR 2,500), which he had later declared in 2004, and decided to dismiss him[44]. Similarly, the KPC also ordered the dismissal of Judge Besnik Trezhnjeva, stating, among other things, that he had concealed assets when he did not mention in his “declaration of assets” his daughter’s bank account created entirely from her salary in a state institution, all worth about 1,000 euro (148.226 Lek)[45].

Also, how Mr. Dvorani acquired an apartment in 2001 when he worked for the state company, Albtelecom, presented a severe lack of transparency and conflict of interest. According to the initial purchase contract, the title deeds of the apartment had a surface area of 93m2 and was under the name of a different person. Initially, from 2004, Mr. Dvorani had been making mortgage payments. But following the privatization of Albtelecom in 2013, the new private owners decided to write off the remaining mortgage balance of 17 thousand euros to Mr.Dvorani, who was by now a member of the Supreme Court, and also donate him an additional surface, which increased the surface of the apartment from 93 to 120 square meters. While serving as Supreme Court judge, Mr. Dvorani, in conflict of interest, ruled several times as chairman or member of the panel, in cases in which Albtelecom was a party and the delivered decisions that favored Albtelecom. Some of these cases involve claims against the state entities, such as the tax authorities, municipalities, or regulatory bodies of the telecommunication domain[46]. By contrast, many other judges, when found to have received preferential treatment to acquire mortgages at lower than market rates or when they had to rule on cases involving banks that provided them credit, were removed from office. In addition, in another case, regarding a high-profile criminal investigation, a registration was leaked in which the interested party said A Dvorani would vote in their favor. But after the registration was leaked, Dvorani voted in favor of the other party. Despite all these strange occurrences, in February 2021, Ardian Dvorani was declared by State Department as one of the ten world champions in the fight against corruption[47], and in April 2021 as one of the champions of the judiciary reform in Albania[48].

2. 2. 3. The selection of Sokol Sadushi as deputy chair of the Supreme Court was contrary to the law. He is a former member of the Group of High-Level Experts and a former prosecutor during the communist regime. In April 1998, in violation of the Lustration Law, Mr. Sadushi was appointed by the political majority of former communists as a member of the Constitutional Court, a position he remained in until 2011. Together with Mr. Dvorani and in violation of the law, he has attended public meetings of the Socialist Party, which was then in opposition. In 2020, Mr. Sadushi, was appointed member of the Supreme Court and later deputy chair of that Court. The position of the chair of the Supreme Court remains vacant to this day. Mr. Sadushi did not undergo a vetting process by the Independent Commission of Qualifications, nor did he submit himself to vetting by the High Judicial Council. Following his appointment to the Supreme Court, the High Judicial Council declared that it had carried out a vetting process, but contrary to the law, details of that process are still confidential. Ironically, the serious issues relating to S. Sadushi’s assets came to light during the vetting process by the Independent Commission of Qualification (ICQ) of his wife, Mrs. Edlira Petri, a member of the Court of Appeal in Tirana. Mr. Sadushi had declared the sale of an apartment for 55 thousand euros, but strangely, the deal had not been registered with the Office of the Real Estates Register, as required by law. Instead, the same apartment had been put up as collateral for a bank loan taken by him. The dissenting ICQ judge, in her opinion, underlines that the buyer of the apartment had not proved that they had the financial resources to purchase the property for 55 thousand euros, which they claim to have been carried out privately with payment made outside the banking system. The ICQ judges were also divided in their opinion regarding the origin of 20 thousand euros that Mr. Sadushi claimed to have inherited, as well as on the integrity of documents presented as proof that his daughter had had a free of charge medical operation in the United States. The panel accepted emails as evidence of health costs – including communication from the pediatric surgeon who had performed the intervention in the US hospital – while as the minority judge in the ICQ notes, the practice established by the ICQ and SAC (Special Appeal Chamber) in other cases has found inadmissible as evidence, those acts that did not have the formal elements of recognition of a document issued by a foreign country, and upon this practice decided to exclude the other judges in question from the justice system[49]. Furthermore, the dissenting ICQ judge also mentions that the joint income of Mr. Sadushi and Ms. Petri could not cover the declared expense for the enhancement and furnishing of their apartment in Tirana[50]. In the end, Ms. Petri successfully passed the vetting process, but the ICQ judges disagreed on most aspects of verifying the assets. This is the only case where the Public Commissioner has not appealed a non-unanimous ICQ vetting decisions to the Special Appeal Chamber. This clearly explains why, after two years, the High Judicial Council has still not made public the results of the vetting process of the deputy chair of the Supreme Court, S. Sadushi.

2. 2. 4. The selection of Gent Ibrahimi as chair of the High Prosecutorial Council. Mr. Ibrahimi is a brother-in-law of Mimi Kodheli, a former Defence Minister, Socialist and an actual MP. Mr. Ibrahimi is a former OSF representative in Albania[51] and a member of the Group of High-Level Experts for the reform of the judiciary. He is appointed in his current position in violating the Constitution as he was disqualified by the International Monitoring Operation (IMO). However, Mr. Ibrahimi managed to pass this constitutional hurdle due to his political connections. Other people facing similar situations have been struck off the justice system. In his vetting process, the ICQ accepted his explanation that 30 thousand euros in his bank account were a gift from his parents. Although clearly sourced, the ICQ has not extended the same leniency to other judges and prosecutors who had claimed even smaller parental monetary donations.

2. 2. 5.  High Inspector of Justice (HIJ) was appointed Artur Metani, brother of the former Socialist minister E. Gjermeni. He had been a member of the Group of High-Level Experts for judicial reform. He is also a former OSF representative and advisor to the Albanian President and prime minister, Edi Rama[52]. Mr. Metani was appointed to this post in violation of the Constitution and the country’s legislation because advisors to the President and the Prime Minister are considered to be senior political officials and, as such, cannot be appointed to HIJ, because the law establishes that candidates should have no political affiliation. The Judicial Appointments Council (JAC) has applied this legal requirement to other candidates for HIJ or other organs, but for Artur Metani, the JAC took another view and ignored the law. (For more details on this, please see the section below on the capture of the High Inspector of Justice). Following his appointment to HIJ, Mr. Metani was involved in a scandal when his name was mentioned in a police wire-tapping operation. In the secret recording of a conversation at a hotel in Tirana, Mr. Metani is promised 500 thousand euros to intervene in the Supreme Court in favor of someone who had been sentenced for murder. Despite the high public interest on the matter, Mr. Metani’s name was wiped out from the case, possibly on orders from high authority.

2. 2. 6. Chair of the High Judicial Council (HJC), Naureda Llagami. Mrs. Llagami was appointed to this position in violation of some of the constitutional and legal criteria. For example, the People’s Advocate observed that Mrs. Llagami, who was a civil society candidate, did not meet the constitutional standard of having 15 years of experience as a lawyer. Other candidates who had not met this criterion, such as B. Ilia and E. Decka, had been disqualified. Mrs. Llagami also did not meet the criterion of having five years of uninterrupted work experience in civil society, which had been a stumbling block for other candidates. When working as an advisor to the Supreme Court, she had violated the law on the conflict of interests by signing contracts with a non-governmental organization[53] . Another candidate for the chair of HIJ, P. Ndreca, had failed the selection process for a similar violation. The documents presented by Mrs. Llagami for the vetting process contained inconsistencies with the dates she had declared herself as self-employed and that recorded in the income revenue document. Similar inconsistencies had disqualified other candidates. Two people involved in Mrs. Llagami’s selection process had a conflict of interest and should not have been part of the process.

2. 2. 7.  As it is explained later in point 2.4, another expert of the judicial reform, Mrs. Arta Vorpsi, being a Constitutional Court nominee from the Socialist Party, replaced the constitutional public obligation of swearing before the President of the Republic[54] with taking a private oath before a notary, as suggested and supported by the Socialist Party and some foreign Ambassadors in Albania. This is the ultimate example of the collapse of any legal concept within the judicial reform. Mrs. Vorpsi is the only ever member of the judiciary to have committed a flagrant breach of the Constitution, as also suggested by the Venice Commission[55]. However, after failing to get elected in as Constitutional court judge, she was employed and is currently working as Chief of Cabinet of the President of the Supreme Court, Mr. Sadushi.

2. 3 The Capture of the Judicial Appointments Council (JAC) by the government

According to the Constitution, the JAC consists of nine members selected by lot for a one-year period from the ranks of judges and prosecutors who have not had disciplinary measures taken against them. The JAC’s duty is to verify and rank the candidates for the Constitutional Court candidates and submit them in a strict sequential order to the President of the Republic and parliament lists of three candidates for each vacant position. This body also verifies, ranks, and submits to parliament candidates for the High Inspector of Justice.

On January 27th, 2017, following constitutional procedures, parliament had selected by lot nine members of JAC. After observing that the make-up of the selected JAC would make it harder for him to control this body, and consequently, he would not be able to capture the Constitutional Court, on January 31st Edi Rama embarked on a fierce public attack of JAC members. He threatened that JAC members who had not been subject to the vetting process should do it[56]. The next day, some JAC members who had not been vetted offered their resignation. On February 6th, 2017, US ambassador Donald Lu joined Mr. Rama’s attack on JAC members. He published a statement on the Embassy’s website declaring: The General Prosecutor had violated the spirit of the Constitution when he sent a list of just three candidates for three vacant positions[57]. However, upon verification, it turned out that the General Prosecution Office, in this case, had followed to the letter the constitutional requirements and article 221 of Act no 115/2016. In addition, in his statement, Ambassador Lu, like Mr. Rama, threatened JAC members with vetting saying. “Some Council members have resigned this week rather than be first to face vetting. We will be watching closely to see whether the Vetting Commissions comply with this Constitutional requirement and whether all the members of the Judicial Appointments Council pass the vetting process.”[58] . For these reasons, the JAC did not convene throughout 2017, while the country remained without a Constitutional Court.

On December 7th, 2017, the parliament selected the JAC for 2018 by random lottery. Once again, Prime Minister Rama was not happy with it. As a result, on March 5th, 2018, the chair of the Parliamentary Law Commission, a Socialist Party deputy, Ulsi Manja, publicly urged JAC members to submit to the vetting process before selecting the candidates for the Constitutional Court[59]. JAC of 2018 convened only once, on March 19th, and the country remained without a Constitutional Court. From early 2017, all JAC members except one stepped aside or resigned after failing the vetting process. It was clear that the government’s main aim was not to establish the Constitutional Court but to capture it.

After appointing Mr. Ardian Dvorani as chair of JAC in 2019 and 2020, the need for vetting of JAC members was forgotten. Neither Mr. Rama nor anyone else made any public demands for the vetting of JAC members.

The two-year-long blocking of the JAC under the excuse of the vetting process was anti-constitutional and illegal. The Venice Commission, in its function as an arbitrator at certain moments of the judicial reform, has described the operation of the JAC and that of its chair as one of two serious problems in the implementation of judicial reform and the functioning of the new institutions. In its report of June 20th, 2020, the Venice Commission says, “JACs of 2017 and 2018 should not have been impeded in their work as ‘neither the Constitution nor the law requires them to undergo the vetting[60].

2. 4. The government’s illegal attempts to capture the Constitutional Court

Following the capture of the Judicial Appointment Commission (JAC) in 2019, the Socialist government, through Mr.Ardian Dvorani, started immediately to capture the Constitutional Court, whose nine members are constitutionally mandated to be appointed by the parliament, the President, and the Supreme Court at three members each.

On April 13th, 2019, the JAC chair, Mr. Dvorani, submitted to parliament and the President the names of candidates for four vacant seats in the Constitutional Court, two of which would be appointed by the Parliament and two by the President. He sent the lists without notifying other JAC members nor respecting the timing and sequence of the process. By manipulating the sequence and the timing of submission of the lists of candidates to the parliament and the President, JAC unconstitutionally deprived the President of the right to appoint a third judge to the Constitutional Court. Instead, the JAC announced itself the appointment of the candidate A.Vorpsi to the Constitutional Court. When the President refused to conduct the oath ceremony for Ms. Vorpsi, in an unprecedented move, she went ahead and conducted her ceremony in front of a notary public, and on the same day, the government published in the Official Gazette her confirmation as a member of the Constitutional Court. Ms. Vorpsi was appointed as a JAC candidate and was not selected by parliament nor by the President. Furthermore, the majority accused the President of violating the Constitution by refusing the confirm Ms. Vorpsi’s appointment and started impeachment proceedings to remove him from office. The government also amended the legal requirement for the swearing-in of members of the Constitutional Court to allow for the process to be conducted by other officials and the President.

At the request of parties, the Venice Commission analyzed the constitutional crisis. It issued a report that remarks that the President ‘cannot be denied the constitutional right to appoint the three judges.’ The reports also say the President had acted per a ‘reasonable interpretation of the constitution,’ and the oath ceremony of constitutional judges could not be changed. The Venice Commission also said that the chair of JAC had not worked transparently and had infringed the Constitution and the law[61] . The report of the Venice Commission says that article 41 of JAC regulation had violated the Constitution and the law by denying the constitutionally mandatory presence of the People’s Advocate as an observer in the meetings and operations of the JAC. It stresses also that Mr. Dvorani broke the law by failing to ensure the audio recordings of the meetings of the Council and to publish on the website of the Supreme Court summaries of minutes of these meetings.

Additionally, the JAC violated its constitutional obligations of compiling lists of candidates to select Constitutional Court members loyal to the Socialist Party. The JAC chair did not send 12 candidates for four vacancies, as required by law. Instead, the JAC chair sent only six candidates for four vacancies by including the same candidates in two out of three lists[62]. According to the Venice Commission, this action by JAC chair A Dvorani makes “all, but one, appointments to the Constitutional Court potentially unconstitutional.”[63]. This is because the appointment of Constitutional judges by parliament without a due selection process and the absence of three candidates for each vacant position is an infringement of the Constitution and the law. For all the above reasons, the Venice Commission remarks that the JAC activity was one of two factors that severely perturbed the model of appointing Constitutional judges in Albania[64] .

2. 5. The capture of the High Inspector of Justice (HIJ) by the government in flagrant violation of the Constitution and the laws of the country

According to the Constitution, the HIJ chairperson should have been appointed six months after the coming into force of the constitutional amendments for the reform of the judiciary, and this should have been between February and March 2017. This did not happen because, as explained above, the government blocked the functioning of JAC for two years.

Consequently, appointment of the HIJ started only after the government had captured the JAC through Ardian Dvorani, who was to ensure the appointment of the government-preferred candidate, Artur Metani as HIJ. In January 2020, from a list sent by JAC, Parliament selected Artur Metani as High Inspector of Justice (HIJ). Mr. Metani is the brother of the Socialist former minister E. Gjermeni. He is also a former member of the Group of High-Level Experts for the judicial reform, a former representative of OSF, and a former advisor to the President and Prime Minister, Edi Rama[65].

Mr. Metani was appointed in violation of the Constitution and the laws of the country and in aa obvious application of double standards. Article 147/d/40, paragraph 3 of the Constitution says the person appointed to the governing bodies of the justice system “shall not have held a political post in the public administration or a leadership position in a political party in the last past ten years before becoming a candidate.” Also, the Law On Public Servants (articles 3 and 4) and the Law on the Council of Ministers (article 4) describe advisors as political appointees and bars them from holding any civil service positions[66].

Based on these arguments, the JAC deselected from the race for the Constitutional Court the former advisor to the President and former judge, Shaqir Hasani, but approved as chair of HIJ Artur Metani, the former advisor to the President and the Prime minister. In its ruling number 100, on July 30th, 2019, the JAC allowed Artur Metani to be selected as the candidate for the position of High Inspector of Justice, arguing that “the Council concludes that the position of legal advisor to the President of the Republic cannot be considered a political position, as envisaged in Act 115/2016” and, as such, “it does not preclude him from the selection process”. Meanwhile, in another ruling, number 15, of July 17th, 2020, to deselect from the race for the Constitutional Court the former legal advisor to the President of the Republic, the former judge Shaqir Hasani, the JAC argued that “the Council finds that candidate Shaqir Hasani has been legal advisor to the President of the Republic and therefore does not meet the selection requirements”[67].

The reason for the JAC rulings is that, unlike Mr. Metani, Mr. Hasani, a former judge widely known for his integrity, is not the brother of a socialist minister, a former advisor to Prime minister Edi Rama or an associate of OSF. Instead, Mr. Hasani comes from a family that has faced severe persecution during the communist regime.

Furthermore, to position Mr. Metani at the top of the list of 5 candidates, the JAC accorded his application 86.8 points. The second candidate on the list, a prosecutor who had successfully passed the vetting process and met all the selection criteria, was accorded 86 points.

2. 6. The capture of the justice system through the vetting process of judges and prosecutors.

The opposition has fully supported the vetting process of judges and prosecutors as an indispensable condition for the justice system. We have also been in favor of extending vetting to include politicians. To this end, we drafted and submitted a separate bill to parliament, but the socialist majority refused to vote it.

The opposition insisted that the vetting process should guarantee a just legal process, and denounced the political capture of the vetting process by the majority. This capture has been done through the political appointment to vetting commissioners, including former vice-ministers and functionaries of socialist government, or family members of currently serving ministers of Rama government, such as P. Qirko-Balluku, sister of minister B. Balluku, and V. Sanxhaktari – former spouse of one of the prominent leaders of the terrorist gang that planted the car bomb in Tirana in 1996. Another example is the appointment as Public Commissioner of F Ballhysa, former chief of the cabinet to the former Socialist minister and member of parliament, Fatmir Xhafa.

In particular, the opposition has opposed the application of double standards in the vetting process and the intentional use in this process for this purpose of top-down instead of bottom-up methods.

By using double standards, the government managed to turn the vetting process into a witch hunt. One example is the Dvorani versus B.Muçi case, which has been explained earlier, but there are many more. Another example of double standards and anti-constitutional practice is the High Council of Justice (HCJ)’s refusal to publish the vetting results for the newly appointed members of the Supreme Court, S Sadushi, I Panda, and E Pupe. Regarding the vetting process, the Venice Commission of June 19th, 2020, noted that the Vetting Commission applied a rigid two-week application deadline for some individual candidates. Those who failed to submit the requested documents in time were removed from office, whereas others were granted extension of the deadline for no legal reason[68].

In applying double standards, the government used its agencies, such as the tax authority, the police, the Directorate for the Security of Classified Information (DSCI), and the State Intelligence Service (SIS). These agencies, by law, had the legal duty to present the data they had on the individual who was subject to the vetting process. However, the DSCI and SIS information were not given to the individual who was subject to vetting. The Secretary-General of the Council of Ministers, Mr. Engjell Agaçi –who controlled the data that these agencies had on the person under vetting – took a critical extra-legal role in selecting the data handed to the vetting process commissioners, on each person going through the vetting. Furthermore, the Prime Minister changed the heads of DSCI and SIS agencies without any legal motive at the beginning of the vetting process.

Applying the top-down instead of bottom-up method presents a major divergence between the government and the opposition. The opposition opposed the top-down approach because it is destructive and it allows interference from above, in this case, from the executive. In Albania, this method left the country without its Constitutional and Supreme Courts for four years. The consequences of this judicial vacuum were a grave constitutional crisis, the decapitation of rule of law, and billions of euros of economic damage caused by the blocking of some 36 thousand legal cases at the Supreme Court, which still has only nine out of nineteen judges. This vacuum could have been entirely prevented had the government not blocked for two years the functioning of the JAC and if the vetting process had applied the bottom-up method that the opposition had requested. Furthermore, according to the chair of the High Judicial Council, today, all the appeal courts “are collapsing and just 25 out of 78 judges are carrying out their duties, a number that continues to decrease due to the vetting process”[69]. The first instance courts are in a more precarious situation as in many cases the courts cannot reach a quorum of three judges.

2. 7. The capture of justice by the Socialist Party through the East-West Institute of Management.

An extensive stock of around one hundred thousand files due to the vacuum created by the top-down method is waiting to be reviewed by the courts. Only in the Supreme Court, the stock of files is over 30,000, and according to some estimates, the review of stock files will need at least two decades. Under the pretext of speeding up the trial of files, the President of the High Judicial Council (HJC) N. Llagami, in July 2021, in violation of the constitution and country codes, signed an agreement for the “management” of these files by the East-West Management Institute (EWMI), an organization sponsored by George Soros. The head of EWMI in Albania is Delina Fico, the wife of Interior Minister B. Çuçi, the former wife of Edi Rama and a former chair of the OSFA Board. According to the agreement, EWMI’s task is to prepare the trial cases for the judges of the Supreme Court (HC)[70].

The concession of the management of judicial files of the Supreme Court is an illegal practice, as the task of preparing the files belongs to the legal advisors of the Supreme Court. According to the legal framework in force, they must have a qualification specified by law. Some of them – magistrate advisers – get this position after special training and years of full-time study at the School of Magistrates, where they enter on a competitive basis. The other non-magistrate legal advisors of the Supreme Court come from the ranks of lawyers who meet the quantitative and qualitative criteria set out in the law (law no.98 / 2016, article 34). The law stipulates that the administration of files is done within the judicial system by persons who meet the legal criteria for exercising such functions and are selected by the relevant institutions only based on the requirements for their appointment. Importantly, as explained above, all legal advisors of the Supreme Court have to undergo the vetting process according to Article 179/b § 4 of the Constitution[71]. In contrast, the EWMI experts who will administer the vast number of court cases are generally lawyers who have not completed their studies at the School of Magistrates. In addition, they have no status in the judiciary or civil service of the country and do not meet the other criteria required by the law. They are mainly members of the Lawyers’ Club (section of the Socialist Party Youth Organization – FRESSHA), who have graduated from the FRESSHA Law Academy. The US Ambassador to Tirana Yuri Kim encouraged and intermediated the agreement between the HJC and EWMI, according to the statements released by the embassy[72].

3. The Results of the Albania’s Justice Reform
Five years after the voting of the constitutional package in the parliament, the main preliminary results of the reform of the justice system in Albania are:
  1. Complete capture of the justice system. Through its trusted persons, the government controls today – as never before – all governing bodies without exception and even the administration process of court files.
  2. With the placement of justice under the control of the former communist government in Albania, OSF contributed de facto to replacing the rule of law with the party-state. A comparative study shows now Socialist Party controls 90% of the power in Albania, almost 10% more than what the Labor Party of Albania held in 1991[73].
  3. Failure of the justice system to guarantee Albanian citizens a fair trial process. For five years, the Albanian citizens – due to the absence of the Supreme Court and the Constitutional Court – have not been able to have effective access to a court in the Albanian justice system. The de facto denial of this fundamental right is due mainly to the dramatic decline of the number of judges and prosecutors in the courts of first instances and those of appeals. In addition to that, with 100,000 stock of trial cases at all levels of justice, their review, according to experts, would take decades; hence thousands and thousands of elderly citizens will not be able to receive justice during their lifetime.
  4. During these four years, the blocking of civil cases in the Supreme Court, such as those about the property, contracts, investments, etc., has caused the country a loss of over 5 billion euros. In addition, during these five years in Albania, no prominent foreign investor has come; on the contrary, several of them have left the country.
  5. The absence and non-functioning of the Supreme Court and the Constitutional Court for four years has been one of the main reasons for the EU‘s refusal to open membership negotiations with Albania.
  6. The primary beneficiaries of the justice reform in Albania are the government, organized crime, drug cartels, and corruption, all of which are government-linked.
Today, over 90% of all lawsuits of citizens and private businesses against the government are won by the government. Even in the few cases that the government does not succeed, the courts’ decisions are not implemented or annulled by executive order. A clear example is the decision no. 29, dated 02.07.2021, of the Constitutional Court, which turned down the decision of the government to transfer the ownership of the land where the National Theater is located to the Municipality of Tirana. Immediately after this Constitutional Court decision, the government issued a new decision by which it transferred again the land of the National Theater to the Municipality of Tirana[74]. The opposite was true before 2013. Citizens and businesses won 65-70% of the lawsuits against the government.

In Albania, organized crime, drug traffickers, and corruption are in the unbridled gallop. State capture in Albania is the worst in the region[75]. Organized crime and government-linked drug cartels, according to international reports, dictate the of laws in parliament and government decisions and determine the winners of tenders and concessions. In recent years, parliament passed eight laws on the specific interests of government-linked drug cartel bosses[76].

The US Department of State assessed the that: “Albania serves as a base of operations for organized crime organizations operating in the United States, Europe, the Middle East, and South America.”[77]. Albania is on the black-list as one of the major money laundering countries[78]. Experts, analysts, and foreign media consider Albania as the first and unique narco-state in Europe[79].

Corruption in Albania extends to all levels and is considered rampant and pervasive. The prices of public works with the state budget money in Albania cost 6-8 times more than the public works performed in similar terrains with the financing of European banks; secret procurement has increased 15 times compared to 2013. This year Albania ranks second in the world for bribery, according to the World Bank[80]. Two years after the establishment of the Special Prosecution and the Special Court (SPAK and CCK), despite the increase of 300% in corruption compared to before 2013[81], not only has no senior official been convicted of corruption, but none of the files on the major corruption scandals, each amounting to hundreds of millions of euros of Rama and his ministers, have been opened. In 2020, a total of 63 defendants were sent for trial by the SPAK on corruption charges. It is worth noting the stark contrast with the 2009: according to the US Department of State report on Albania, during the year 2009 the special unit for the fight against corruption sent 383 cases for trial and the court issued guilty verdicts on 346 of these cases. Another illustration, in 2005-2007, the Serious Crimes Prosecution and the Court of these crimes in 18 months were charged and sentenced to imprisonment over 1050 members and bosses of gangs and criminal groups, and hundreds of officials for the corruption, including senior officials. The functioning of the rule of law and the market economy made possible Albania’s membership in NATO, the signing of the Stabilization and Association Agreement, visa liberalization with the EU, and the recommendation by the European Commission for the status of EU candidate country, significant improvement of the business climate, doubling budget revenues and quadrupling foreign investments. Albania, in a real quantum leap, in 2008 passed from the group of poor countries to the group of high middle-income countries. During the years 2005-2013, several big investors landed in Albania, including Shell, the Transadriatic consortium Pipeline TAP, San Paulo Imini, OMNIX, Statkraft, Bechtel, Enka, Strabag, Actor, etc. In the last five years, no prominent foreign investor has brought investments in Albania. On the contrary, some of them have left the country.

7.  Recently, after a series of serious charges[82], dropped during the investigation in court, Adriatik Llalla, the former General Prosecutor of Albania, was sentenced to two years in prison for a minor offense. Meanwhile, other judges and prosecutors for the same or more severe breaches passed the vetting process and continued to be in the highest levels of the judiciary. Mr. Llalla had publicly denounced that US Ambassador Donald Lu had requested him the arrest of the Speaker of Parliament in 2015[83]. The US ambassador accused Llalla of being an opponent of justice reform because he had declared that “the reform consultation process was missing”[84]. Mr. Llalla made public ambassador Lu’s request to drop the prosecutorial investigation for the oil company Bankers Petroleum, which was commenced due to the significant damage to the health and the houses of the inhabitants of Marinze from its drilling for oil[85]. Mr. Llalla declared that the Secretary of State of the time, Rex Tillerson, was a shareholder of the Bankers Petrolium[86] and according to the media, George Soros was also a shareholder of Bankers Petrolium[87]. Mr.Llalla refused to drop the investigation. Ambassador Lu had threatened him that he would be held accountable in case he would not drop criminal charges[88]. On 17 May 2017, Mr.Llalla sent a letter to the US Senate explaining the role of the Soros Foundation in the Albanian judicial reform, as well as the un-diplomatic interventions of ambassador Donald Lu[89]. When the letter was made public in 2018, the ambassador accused Llalla of corruption[90]. In the same year Mr. Llalla was designated “non grata” for corruption by the Secretary of State Rex Tillerson[91].

All the above have caused that today, five years after the reform, serious studies and reports announce a significant decline in citizens’ trust in the reform and the justice system. Over 63% of citizens do not trust the vetting process. Only 32% think that the reform has been implemented correctly. In contrast, most citizens believe that corruption in the justice system has increased significantly in the last two years[92].

4. Conclusion

The Justice System reform in Albania was ideated by OSF in the Strategy Plan of this Foundation for the years 2014-2017, as published in December 2013. With its financial and technical assistance, OSF would also be the initiator, sponsor, and leading promoter of this reform.

Since the beginning, the OSF organized broad debates with civil society representatives, universities, political forces, and interest groups on essential aspects of the reform. OSF undertook the development of opinion polls whose results differed significantly from other international opinion polls.

OSF, with the government, created with its collaborators the brain of the reform – the Group of High-Level Experts (GHLE) whose members were paid directly by OSF until the end of the reform. GHLE ‘s mission was to draft constitutional amendments and organic laws on justice reform. At the very beginning of the work, it became clear that GHLE: (i) presented a justice system model that does not exist in any country in the world. And (ii) that OSF and the government had as their primary goal of the reform putting the justice system under the control of the government of Edi Rama, a friend of George Soros.

The Venice Commission rejected one after the other in December 2015 and March 2016 the two drafts of constitutional amendments prepared by GHLE and hastily approved only by the majority vote in the Special Parliamentary Reform Commission (SPC). The Venice Commission found that both drafts would place the justice system under the control of the executive.

The opposition, although without the right of veto and despite the refusal of GHLE to accept its proposed experts, decided to participate in the SPC.

After the failure of the two drafts of GHLE in the Venice Commission, with opposition insistence and mediation of senior international officials, the parties agreed on a formulation of the package of constitutional changes that were in line with the recommendations of the Venice Commission. The Parliament unanimously approved the constitutional amendments on July 21, 2016.

But after that consensual voting, the government and GHLE returned in the organic laws of reform all the mechanisms of capturing the justice system, thus violating the consensus, and passed those laws for approval only with a majority vote. They breached the agreement to vote them in consensus with the opposition. Based on these changes and their implementation, the majority and GHLE placed justice under the complete control of the socialist government. At the head of the governing bodies of the justice system – in open violation of the constitutional and legal criteria are appointed former ministers, deputy ministers, brothers, brother-in-law, ex-minister of SP, former judges and prosecutors of political processes under the communist regime, and collaborators of the secret police of Enver Hoxha. Almost all of them are associates or former employees of the OSF.

In addition, the government used the vetting process as a witch-hunt and also an instrument of blackmailing. It removed from office – often by applying double standards – all judges and prosecutors it considered its opponents, based on cases they had adjudicated concerning current government officials or government-affiliated crime bosses.

The Secretary-General of the Council of Ministers took on a critical extra-legal role in the vetting process. He controlled the information available to government-affiliated agencies such as the tax authority, the State Police, the Directorate for the Security of Classified Information (DSCI), and the State Intelligence Service (SIS), which by law were to be submitted to the KPC for persons subject to the vetting process.

As a result of the destructive Top-Down method that the government applied in the vetting process and its efforts to capture the Constitutional Court and the High Inspector of Justice at all costs, the country remained without a Supreme Court and a Constitutional Court for four years. The courts of appeal remained with only a quarter of their judges and similarly followed suit down to the first instance courts.

For five years, the Albanian citizens have not been able to have a fair legal process. The stock of files waiting to be reviewed by the courts is more than 100,000.

The coup de grace of the capture of the judiciary was the decision by the High Judicial Council to outsource the administration of case files of the Supreme Court to the left-leaning private organization East-West Management Institute (EWMI), in an illegal and unconstitutional agreement. The head of EWMI in Albania is Delina Fico, spouse of the Minister of Interior B. Çuçi and former wife of Edi Rama. Mrs. Fico is also a former head of OSF. EWMI legal experts are members of the Lawyers Club of Youth Forum of the Socialist Party and do not meet the minimum legal standards for legal advisors to the Supreme Court. The law envisages that such advisors should be magistrates or have specified work experience and qualifications. Most importantly, they have not undergone the vetting process, as a mandatory requirement of the Albanian Constitution (Article 179/b). Thus, the government took over the preparation of the files on which the judges of the Supreme Court will decide.

The opposition opposed and denounced every step taken by the government to capture the justice system. Its objections were not only ignored, but the OSF and the socialist government launched a propaganda campaign aimed at presenting the opposition’s concerns as anti-reform stands.

The truth is, the justice reform in Albania, with OSF as the principal ideator, initiator, and promoter destroyed the existing fragile justice system and installed a sui generis justice system without a backbone, captured entirely by the socialist government, with which over 90% of lawsuits are won by the government, gangs, and drug cartels associated with it. It is destined to deprive Albanian citizens for years and decades of the right to a fair legal process.

OSF, with its partisan activity, has done incalculable damage to the fragile democracy in Albania. Firstly, with the establishment of the NGO network under the umbrella of the Socialist Party, a scheme by which OSF restored their monistic model in Albania and today, they are not independent voices of the society, but organizations manipulated by this party. Secondly, with the establishment of justice under the control of the former communist party in Albania, the OSF contributed de facto to replacing the rule of law with the party-state or the state-party, which now controls 90% of power in Albania.

For all these, it would be most necessary for the US Congress, the European Parliament, and the Parliamentary Assembly of the Council of Europe to investigate and prohibit by law the partisan political interventions of billionaire George Soros outside the US or at least in the former communist countries.

Finally, it is worth noting that five years after the vote in parliament on justice reform, out of 830 judges and prosecutors who must undergo the vetting process, only 420 have completed it, and 200 of them have left the system through this process.

In the end, it is urgent to implement the recommendation of the Venice Commission to expedite or amend the vetting process, as there is also an emergency for other legal interventions – with the assistance of the Venice Commission, namely:
•    to address the question of the enormous stock of court files based on legal procedure, and
•    Getting the justice system out of government control is vital for the rule of law and the future of democracy in Albania.

The views expressed in this explanatory note are the author’s own and do not necessarily reflect IFIMES official position.

Ljubljana/Tirana, October 2021

 

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