The bombshell verdict of the Special Appeals Chamber (KPA) today in the Public Commissioner’s appeal against the confirmation in office of President of the Constitutional Court Bashkim Dedja has clearly shown that the recent “urgency” with which the EU, US, and Albanian government have pushed for the installation of the new justice governance institutions has been dangerously premature.
Supported by legal provisions that are at odds with the definition of “complete reassessment” in the Constitution, namely a vetting that passes both through the Independent Qualification Commission (KPK) and the Special Appeals Chamber (KPA), we have recently seen the installation of the High Prosecutorial Council (KLP), High Judicial Council (KLGj), and Justice Appointments Council (KED).
With its verdict, the KPA has shown that overturning a verdict of the KPK is no longer a mere “theoretical” possibility. It shows that the KPA is fulfilling its functions as a final, constitutional check on the KPK.
Dedja was elected by default as member of the KED, even though his appeal was at that moment still pending. Meanwhile, several members of the KED still await vetting, while several others members did not even pass the formal eligibility criteria. With the dismissal of Dedja, the KED is now down to 7 of its 9 constitutionally mandated members.
The situation in the KLP is very similar. The Public Commissioner has appealed the confirmation of both Gentian Osmani and Antoneta Sevdari on bases that are similar to Dedja’s. About Osmani, for example, the International Monitoring Operation concluded that “the assessee did have at his disposal undeclared financial resources or income.”
Because the KED cannot elect new members of the Constitutional Court until all its members are vetted (unless the EU gets its way), the damage of Dedja’s membership of the KED has been minimal.
The same does not hold for those members of the KLP who are potentially corrupt and will have in the coming months a far-reaching influence on the future shape of the Albanian prosecution. Osmani, Sevdari, and their colleagues (some of which, again, did not meet the formal criteria), will install a new General Prosecutor and establish the Special Prosecutor (SPAK) and National Investigation Bureau (BKH).
Moreover, there is a serious risk for a “Catch-22” situation. The law determines that KLP members can only be fired by the Constitutional Court, but there is at the moment no Constitutional Court. So even if Osmani’s or Sevdari’s confirmations were overturned by the KPA – for which there is now a real precedent – it is unclear if they could actually be removed from the KLP! That is the result of badly and hastily written legalislation. And, as always, no one will take responsibility for it.