Fakulteti i Drejtesise, Universiteti i Tiranes
The proposal to develop the judiciary veto process in Albania is domestic production and innovative effort to resolve a rule of law dilemma. A serious and transparent re-evaluation process will not only improve the rule of law in Albania, but it will also provide the basis for learning as a success model for adoption in similar contexts around the world. Vetting has its origins in transitional justice and is used in the first stages of transition from a totalitarian system to constitutional democracy or after the declaration of peace at the end of a war. A particular example in which vetting is used as a tool to specifically combat corruption in the judiciary is the case of Kenya’s state of Africa. Consequently, it is worth learning about the problems that the vetting process derives in its context of origin and when it is adapted to fight corruption in the judiciary, such as in Kenya, to understand possible cramps and avoid falling down.
Vetting or verification process is a mechanism in the framework of guarantees for non-violation of serious human rights violations, to purify mainly military forces and police, but also executive and judiciary. This mechanism comes to light in post-war situations or after the transition from a totalitarian order to democracy for institution reform from subjects involved in gross violations of human rights or violations of international humanitarian law. In the conceptualization of the vetting process, the focus is on the final result, namely murder, torture, forced disappearance, or other similar violations with the purpose of their non-repetition – the diagnosis is considered to be the removal of the subjects and the reorganization of the institutions, a new spirit that recognizes and protects human rights. Within the United Nations, there has been a Special Rapporteur, Pablo de Greiff, who has been promoting internationally the right to know the truth, to judge the offender, to give victims repairs and the right, to guarantee the non-repudiation of the serious violations of human rights. In El Salvador, the peace agreement resulted in the establishment of an interim Commission for demilitarization of the armed forces, identifying the actors who served before and during the war, and dismissed more than one hundred police and armed forces officers from duty they could continue the pattern of old behavior in new institutions and sabotage the processes of change in the postwar El Salvador. In the post-communist countries of Eastern and South East Europe, including Albania, partial verification practices were undertaken to remove from the leading positions of compromised figures.
In each of these cases, the main criticism was (i) the lack of transparency in the selection of subjects that make the verification, (ii) the lack of transparency in the selection of subjects to be verified; (iii) the use of unsafe evidence to eliminate unwanted specific persons by the executive; (iv) and focus on specific institutions (such as the police) and bypassing the verification of the judiciary and especially the executive.
The problem is that many new constitutional democracies face solving: What should be done in a constitutional democracy if the judiciary is confirmed to be a failed mechanism in protecting the rule of law? In stable democracies, the investigation and disciplining of the judiciary is left to the organs composed mainly or wholly of the judges, in order to protect institutional independence. But such an approach becomes unworkable when there is more than “a bit of rotten apple” in the judiciary. New Democracies from Eastern Europe in Latin America endeavor to find effective ways to ensure the integrity and regular functioning of the judiciary, but there is no consolidated pattern through which this challenge can be addressed. Vetting, as a practice adopted by transitional justice (a completely different context), can be the right tool to address the problem of corruption. In this situation, the process of vetting comes to the fore as a midway between the dismissal of all judges and prosecutors and allowing all to the current position. The aim is to minimize the loss of honest and experienced judges and prosecutors, ensuring that those who remain are trustworthy and capable of maintaining the rule of law. The entire process clearly affects individual judges and prosecutors, but exposing others’ violations certainly strengthens the credentials of some.
In the case of Albania at this stage, the need for a judicial clearance process does not come as a necessity to change the nomenclatures of a totalitarian regime that precedes a democratic order or as a consequence of the involvement of the judiciary in serious human rights violations; but as a need to fight the phenomenon of corruption in the judiciary and restore credibility to the justice system. In anticipation of the Venice Commission’s reply to the Law on Transitional Justice Review of Judges and Prosecutors in the Republic of Albania, it is important to recognize the deserved importance of the veto process and the fundamental effect that Albania may have in the future as a state of right. Knowing the main culprit in the selection of the subjects that make the verification, the selection of the names to be verified, and the way in which detail and in accordance with the law of self-determination is done this verification is very worthy of uncompleted expert engagement and deep verification of more than the total number of about 380 judges and 320 prosecutors. A very important role is expected to play us, every citizen, through the interest of getting as much information as possible about the progress of the vetting process: a transparent and complete self-process guarantees a future for a right Albania.
According to several statements from EU institutions, the judicial reform is the only condition left to be fulfilled by the Government of Albania prior to accession talks. Unlike other Western Balkan countries where vetting was undertaken as a post-conflict institutional measure, Albania present itself as an atypical case. On July 22, 2016, the Parliament of Albania approved all 17 constitutional amendments required to reform the justice system, aspiring to change its image by making it more independent, accountable and efficient. These constitutional amendments represent the implementation of the Vetting Law, known as the temporary re-evaluation of the judges and prosecutors of the Republic of Albania. To carry out the vetting process, two special institutions have been established: a first instance Commission (“First Instance Commission”) and an appeal chamber (“Appeal Chamber”), meaning that this process will not go through the existing ordinary court system, since judges are the subject of the assessment. These institutions will be monitored by an International Monitoring Operation, composed by judges and prosecutors selected by different EU member states. According to this procedure, international observers do not hold a decision-making role in the vetting process, holding more of a monitoring and supporting role in the overall process. Albanian judges, including judges of the Constitutional Court and of the High Court, Albanian prosecutors, including the General Prosecutor the Chief Inspector and all inspectors of the High Council of Judges, legal advisers of the Constitutional Court and of the High Court, legal advisers of the administrative courts and of the Prosecution General Office and former judges will all undergo vetting procedures if requested. The Independent Qualification Commission and the Appeal Chamber, as provided by Art.179/b, paragraph 5 of the Constitution, are the institutions which will decide on the final evaluation of the assessed. The decision shall be based on one or several components or based on an overall evaluation of all of three key components. In order to make vetting a just and fair process, the law provides a number of requirements for people in order to qualify as members of the re-evaluation of institutions. To be eligible, the selected individual should have not been a member, collaborator nor favored by the State Security services before 1990.
In the end, it remains only to be hoped that vetting will work well for Albania. Citizens want to believe again in the judicial and administrative system so the only light at the end of the tunnel is vetting.