Justice Reform, the vetting process with its unanticipated consequences

Author: Bejli Çaushaj

A.H., age 60, is one of thousands of Albanians waiting for justice.

She once worked for the State Police in a high-level position but for the past nine years she’s been fighting her dismissal in court. She has asked to remain anonymous.

 “When the Socialist Party came to power, I was fired. It was the minister himself that signed the order, but the law for state police is clear. The minister couldn’t fire me”, she says.

For AH, the battle for justice started nine years ago.

“After some litigation, in 2016 the Supreme Court of Albania decided that my firing was not based on the law,”, adding that she still hasn’t received her dismissal order so she can earn the right to receive the police pension she is legally entitled to.

In 2018 the state asked that the judgment be suspended, arguing that the decision was setting a dangerous precedent for future similar cases.

“I’m still waiting, I have no income”, A.H. says, adding that she can’t request early retirement because her case is still in court. She has no actual source of income other than family support.

And because of ongoing reforms of Albania’s judicial system that are taking years longer than anyone expected , no one  knows  how many more years Mrs. H will have to wait for her case to be resolved.

“My retirement, my years of work since I was 17-years-old. It is political, it may not be against me, but it remains political until the law is implemented”, she says, adding that now her hope for justice rests with the  Strasbourg Court where the case is pending.

Albania is now six years into what was supposed to be a five-year process of evaluating judges and prosecutors in its judicial system, in an attempt to weed out corruption in the sector. Experts say that the system remains corrupt and much still needs to be done.

Along with judges and prosecutors who are honest, there are those [still working in the system] who  are convinced that they will have to leave sooner or later. This results in either ongoing corruption or the drastic decline in the quality [of justice]”, says Jordan Daci, a well know constitutional lawyer in Tirana.

But while Albania was once a country where judges and prosecutors could easily be bribed with no consequences, now international observers say it is slowly shifting towards a place where the corrupt in the justice system are being held accountable.

Overall, more than 60% of the vetting files processed so far have resulted in dismissals or resignations. These figures speak for themselves and are the best proof that this process was absolutely necessary”, said  the EU Delegation in Albania for ACQJ.

The EU is one of the main proponents of judicial  reform with more than 50 million euros invested so far and 25 million euros committed in years to come.

However, this costly reform process and the loss of a considerable amount of the judicial workforce has had unexpected consequences—a backlog of court cases that has crippled much of the Albanian court system.

The process of vetting judges and prosecutors is moving more slowly than expected, with Parliament recently renewing the mandate of the vetting institutions until December 2024 due to failure to meet expectations. Over the past six years, the vetting institutions have examined and decided on over 535 cases out of a total of 804. The time it’s taking to evaluate the performance, figure and wealth of a magistrate is long and time-consuming.

A brief history of a major reform

The process to amend the Albanian Constitution to allow for justice reform began in 2015. At the time the justice system was collapsing under corruption, incompetence and political influence.

After several months of negotiations between political factions in Albania and international representatives, specifically the EU and US,  members of parliament voted unanimously on the changes required to start the reform.

The first step was the creation of courts to vet magistrates. They included the Independent Commission of Qualification as a first step and the Appeal Chamber, the highest court in Albanian vetting magistrates, as the final arbiter. The decision of the Appeal Chamber can only be challenged in the international human rights court in Strasburg.

As part of the reform process, the Court of Serious  Crimes and the Prosecutor of  Serious  Crimes were dissolved and replaced by the Special Court against Corruption and Organized Crime, which decides cases brought by the Special Structure Against Corruption and Organized Crime, and the ancillary institution of The National Bureau of Investigation.

From the start, justice reform has been closely monitored by international groups, mostly the European Union and the U.S., the two primary investors in the reform, through an international monitoring mission.

A new justice system, with the same old problems

But there are many questions still remaining, old and new, associated with the judicial reform, such as: has the reform changed things for the better, what still needs to be done, how long will it take and what do international observers think about the reform process?

More than half of the country’s judges and prosecutors have been sacked, leaving a giant pool of vacancies.

Asked about the problems resulting from justice reform, the spokesman for the Ministry of Justice, responded with optimism.

 “Justice reform is one of the largest enterprises of the Albanian state. Any problem or stalemate that may have been encountered in the first steps is overcome,” the spokesman said.

However, the numbers tell a different story.

According to “The Independent Qualification Commission,” since the vetting process began in 2017,  200 members of the justice system have been fired and 80 of them have resigned without undergoing the evaluation process.

“Among the 280 who left office, 171 were Judges, 96 Prosecutors, 3 Legal Advisors and 3 Inspectors,” Joniada Koçi, the spokeswoman of the IQC said.

The number of vacancies created by those dismissals and resignations has had a major impact on the country’s judicial system.

“No one had imagined that there would be such a high number of vacancies; around 60% of judges and prosecutors have left. In the early days of the vetting process, it was estimated that only 30% would be gone, while 60% is a great number that needs to be replaced,” said Saimir Vishaj, an Albania lawyer who has been practicing law for more than 24 years.

This has led to two fundamental problems. First, it created a huge backlog of cases.

For example, the Supreme Court started 2021 with a total of 36,288 cases pending trial. This volume is largely inherited from previous years and  only 5% higher than the 2020 backlog.

At the end of 2021, the backlog of the Supreme Court was slightly down to 35,822 cases, only 1% lower than at the beginning of the year.

To reduce the backlog of cases, the Ministry of Justice issued a stop gap measure. Going forward, pending cases involving small amounts of money where the state is a party will not be heard by the Supreme Court, the government would retract the suits.

With this instruction, as soon as it enters into force, we expect the Supreme Court to be relieved of about 3800 cases still waiting to be examined, while another 1 thousand are still in the process,” said Ulsi Manja, the Minister of Justice, after a meeting of the Council of Ministers.

At the same time, the Courts of Appeal backlog has reached more than 28,000 cases, 19,324 of them civil cases and 8,820 criminal ones.

Albania has six appeals courts, one each in Gjirokastra, Vlora, Korca, Tirana, Durrës and Shkodra. All of them have backlogs, and now that the new court division map has been approved, it is unclear how will this affect the situation.

So far, the Tirana Court of Appeal contributed mainly to the increase in the backlog with 13,873 cases (61% of the total backlog) and Vlora with 3,436 cases (15% of the total backlog).

The EU Delegation in Albania, doesn’t view the backlogs as a serious problem but instead considers them a biproduct of judicial reform’s success.

 “With the departure of 60% of the evaluated judges and prosecutors, this inevitably leads to problems of increasing the number of unresolved cases”, the delegation said, “Already, the justice reform continues to enjoy widespread support of over 80%, but it is essential to move forward with the finalization of the vetting process, for the acceleration of the resolution of backlogs at all levels of the courts”, it added.

The Administrative Court of Appeal alone has increased its backlog since 2020 by 21%. A total of 18,415 cases are awaiting trial and almost 35% of the backlog is comprised of cases pending trial for between three to five years.

The second problem stemming from justice reform is that there aren’t enough recently graduated judges to fill the large number of open judicial positions.

The School of Magistrates, a three-year school that graduates judges and prosecutors, currently has 59 first-year students with the potential to become judges, prosecutors, legal advisors and legal assistants.

In the second year of studies there are 66 candidates, 40 of them studying to become a judge and 26  prosecutors.  And in the third year there are only 46 candidates, 26 intending to be judges and 22 hoping to become prosecutors, said the School of Magistrates in response to a FOIA request from the Albanian Center for Quality Journalism.

However, for Ledio Braho, a lawyer based in Tirana, says this is not sufficient.

New recruitments  cannot be carried out only through the normal cycle of the School of Magistrates”, he says. “It is necessary for the recruitment in the judiciary to be done even from the ranks of prominent lawyers, through legal changes.”

Braho says this should be done through the School of Magistrates by implementing a process to evaluate the experience of currently practicing lawyers who have the desire and potential to be judges and prosecutors.

Another problem, says Saimir Visha, is that the new magistrates graduating from the School of Magistrates lack experience.

“They [the ousted judges] can be replaced by the most qualified students of the School of Magistrates, but they (those students)  have just started schooling and aren’t experienced enough to take on a million euros case of notorious drug lords. It would be impossible,” he said.

Visha thinks it will take two years for the justice system to move forward. By that time, he says the new judges who have finished the School of Magistrates would bring a fresh spirit and restore faith in justice.

“The main goal is for citizens to trust [them] again,” concluded Vishaj.

But others are not so kind in their assessment of how and why reform has crippled Albania’s court system. Jordan Daci, points out that the reform was performed without a preliminary study.

 “At first, it was not predicted that there would be such a large number of vacancies created. The thinking was 30%. Failure to take action or lack of a plan to deal with this lack of staff led to justice going into objective impossibility”, he says.

But for Mr. Daci there is light at the end of the tunnel.

With reform like this”, he says: “I believe that the positive effects will start to be felt in the 7th or 8th year. We are still in the 6th year,” he said.

Vishaj is also optimistic.

 “There is good news from the High Court, filling the gap with 11 members out of 19, because it didn’t operate for 3 years. Even the Constitutional Court was not functioning until now, having 7 members out of 9 recently. But the biggest anomaly remains the Appeal Courts,” said Vishaj.

The Appeal Court in Tirana should have 31 Judges, but the court has been functioning with only six during recent years. This year, the court has 14 judges.

A judge in this court is required to review an average of 3000 cases a year and the Chamber’s judges are struggling to move cases through without creating a larger backlog.

Overall, there are approximately 17,651 civil and criminal cases awaiting trial in the Tirana Appeals courts but there is hope the process will move faster after staff vacancies are filled.

Responding to questions from the  ACQJ, the Appeal Court of Tirana said that the workload per judge varies significantly between courts.

There is a difference of workload of up to 918% between judges working for the Gjirokastra and Tirana Courts of Appeal”, said a spokesperson for the Court of Appeal in Tirana.

The spokesman added that this imbalance leads not only to unfavorable treatment for the judges themselves who find themselves with extra large workloads compared to their colleagues, but also for citizens, whose case are reviewed by overworked judges. Consequently, the cases take more time to get resolved.

Despite these setbacks, the EU delegation in Tirana believes it is essential to move forward with finalizing the reform process, accelerating the resolution of cases backlogged at all levels of the courts and recruiting new judges and prosecutors.

But one proposal that was considered by the government, and finally approved only days ago, might make these goals even more difficult to achieve.  It calls for reducing the number of courts and prosecutor offices in Albania as  a way to remedy the lack of judges and prosecutors. But the plan is vehemently opposed by the National Bar Association, which decided to boycott all cases until the plan is remedied.  The Bar Association says the plan would result in an even worse backlog of cases.

In the end, the government did not take into account any criticism or comments, but went through with its proposal.

SPAK, a light of hope for justice

The one piece of judicial reform that seems to be working is The Special Structure against Corruption and Organized Crime (SPAK), a special prosecutor office created as part of the reform. It also includes Part of the National Bureau of Investigation or as some call it, the Albanian FBI.

The first results from SPAK are in.  One former minister of Interior Affairs was convicted for abuse of power and at least two other former deputy ministers have been jailed or arrested and are under investigation for various crimes.

Directors of important state institutions are under investigation for corruption and power abuse as well, and some of the most known names of organized crime in Albania have been arrested or are under investigation by the special prosecutor office.  At the same time, the former director of General Prosecution, Adriatik Lalla, is now behind bars for concealment of wealth and false official declarations.

Now the public is waiting to see what  SPAK will do about the  judges and prosecutors who have failed the vetting process. So far, only two of more than 160 judges removed from office have faced criminal charges.

Asked about this by the ACQJ, Arben Kraja, the Head Prosecutor of SPAK said that the agencies vetting judges and prosecutors have yet to file a criminal complaint against anyone they’ve dismissed.

SPAK has registered several criminal proceedings against prosecutors and judges for corruption or false declaration of assets. They are registered mainly or on the basis of reports by citizen”, Kraja said, indicating more investigations are underway.

In May of this year, Bashkim Dedja, the former head of the Constitutional Court was indicted by SPAK and is awaiting trial for concealment of wealth, with his properties being seized by the court.

In July, The Special Criminal Court for Corruption at high levels ordered SPAK to proceed with its investigation of seven former members of the Supreme Court and the Constitutional Court. They include former Constitutional Court judges Besnik Imeraj and Gani Dizdari, former head of the Supreme Court Xhezair Zaganjori and former Supreme Court judges Edmond Islamaj, Tom Ndreca, Guxim Zenelaj and Aleksandër Muskaj.  Their alleged wrongdoing includes concealment of wealth and making false official declarations.

Before the start of the reform, the Venice Commission raised two questions: did Albania have the capacity to replace all the magistrates that would fail the vetting process, and would the number of new institutions created be able to weed out systemic corruption.

Six years after reform began, the first question has an answer.  Albania does not yet have the resources to replace all the magistrates that failed the vetting process, given that current vacancies are far greater than what was expected.

As for the second question, it is too early to tell.

This past February, the Albanian Parliament, gave the vetting institution three more years to finish their work. But neither Parliament, nor the vetting institutions addressed the reasons why the institutions have failed to complete their work in the original timeline of five years.

“The prolongation of the timeframe is necessary for the completion of the process,” Parliament said.

 The only guarantee these institutions make is the same one made five years ago:  the process will be completed successfully. Now the deadline is December 2024 and the  bill for taxpayers continues to grow far beyond what was expected.  As of 2022, the reform has cost the taxpayer a total of 1,066,112,050 ALL (more than nine million USD), the costs to the ordinary citizen awaiting justice notwithstanding.

As the Albanian saying goes, “The surgery was successful, but the patient is still in the hospital”.