Xhoxhaj v. Albania: The Aftermath of the Vetting Process in Albania

By Ina Xhepa, lawyer and Executive Director at the European Centre (Albania)

Over the last decade, the Albanian judiciary was considered to be one of the weakest aspects of the functioning of the rule of law in the country. Field surveys revealed high levels of corruption and led to the loss of citizen’s trust towards the juridical system. This motivated the Albanian Assembly to undertake an in-depth justice reform, aimed at challenging the culture of impunity and restoring citizens’ trust towards this system. Re-evaluation of all judges, prosecutors and legal advisors in office based on three criteria, also known as the vetting process, was considered to be the corner stone of the justice reform.

This contribution discusses one of the latest judgments delivered by the European Court of Human Rights (‘the Court’), the case of Xhoxhaj v. Albania. The judgment`s focus lies on some of the most important aspects of Albania’s vetting process. The Court decided that the respondent State respected fair trial guarantees whilst setting up the vetting bodies. It considered this two-instance structure as tribunals set up by law, which enjoy sufficient legal and structural guarantees to be independent and impartial. The Court considered the Albanian case sui generis. Moreover, a lifetime veto to take juridical office was not considered to constitute a violation of human rights. The following contribution will firstly  shed light on the background and facts of the case, before engaging in a discussion on the dilemmas and consequences of the judgment.

Background of the case – Albania`s judiciary problem: adoption of the justice reform in 2016 as a prerequisite to challenge the culture of impunity

In 2014 the European Commission’s Progress Report repeatedly highlighted concrete interventions in the judiciary as an indispensable measure to fight the high level of corruption in the system. High levels of corruption, the existence of a culture of impunity and a lack of citizens’ trust towards the system were considered to constitute the main weaknesses. The Parliamentary Commission on the Judicial Reform envisaged seven pillars in need of reform. These needs were revised after Constitutional amendments, which were adopted from the General Assembly.

The structure of the vetting process underlines that the vetting will be based on the assessment of assets, background and proficiency. Meanwhile, the Constitution and the consequent vetting law legitimised the Independent Qualification Commission (‘IQC’) which deliberates in the first instance; and the Appeal Chamber, with jurisdiction to review appeals against the IQC decisions, as a specialized chamber of the Constitutional Court. The Public Commissioners represent the citizens’ interest before the Appeal Chamber and can appeal against the decisions of the IQC. The vetting process is assisted by the International Monitoring Operation (‘IMO’), which is entitled to file findings and opinions on issues examined by the Commission and the Appeal Chamber, and contributes to the background assessment. IMO may request that the Commission or the Appeal Chamber consider evidence or present evidence obtained from state bodies, foreign entities or private persons, in accordance with the law. Moreover, they submit recommendations to the Public Commissioners to lead appeals against IQC decisions. Moreover, citizens can submit complaints about corruption via an officially approved form.

The vetting bodies started their work in late 2017, after being challenged before the Constitutional Court. Priority was given to high-level court judges, as well as candidates for the High Juridical Council and High Prosecutorial Council. 

The facts of the case and the Court’s ruling

Facts

In 1995, the applicant was appointed as a judge at the Tirana District Court, and several years later, she served as a member of the High Council of Justice. In 2010 she was appointed as a judge at the Constitutional Court for a non-renewable nine-year term. In accordance with domestic legislation for the declaration of assets, the applicant and her partner, who was also a public official, declared their assets annually since 2003. In 2016, the applicant filed three separate declarations for the assessment of assets, background and a professional proficiency in compliance with the vetting law provisions.

In March 2018 the IQC informed the applicant of its preliminary findings, pointing to inconsistencies identified in relation to some of her assets and her allegedly unjustified liquid assets in certain years. In addition, a citizen complained about a conflict of interest involving the applicant as she failed to recuse herself from the examination of a constitutional petition lodged by that citizen. The IQC shifted the burden of proof to the applicant. The applicant submitted extensive written and oral arguments at a public hearing.

On 4 June 2018, the IQC announced its decision, through which it dismissed the applicant from office as she and her partner had not had sufficient lawful incomes to justify their properties and incomes.

The applicant appealed the decision before the Appeal Chamber. She declared that her dismissal had been disproportionate and that the vetting proceedings had been unfair, impartial and in breach of the law.

The second vetting instance upheld most of the IQC’s findings. It made extensive comments concerning the procedure before the vetting bodies and the re-evaluation criteria. Nevertheless, the Appeal Chamber changed some of the IQC’s findings on the applicant assets.

The applicant then applied to the Strasbourg Court, alleging that the Albanian State had breached her rights under Articles 6 and 8, as regards impartiality and independence of the vetting bodies, legal certainty, and respect to her private life.

Ruling

This was a very important ruling, with third parties’ interventions submitted by the European Commission and a national NGO (Respublica), where the Court expressed its standing in relation to several aspects of the vetting process.

On the merits of the case the Court’s assessment focused on: 

i. whether the vetting bodies constitute an independent tribunal established by law

The Court noted that having regard to the Constitutional and legal provisions, there was a sufficient and clear framework on which the IQC and Appeal Chamber based their jurisdiction and competences regarding the re-evaluation process of judges, prosecutors and legal advisors. Thus, the Court decided that the vetting bodies had been set up and composed in a legitimate way and constitute a “tribunal established by law”.

ii. whether the vetting bodies are independent and impartial

Regarding the independence of the vetting bodies, the Court ruled that there existed no evidence of a lack of independence. Members of these bodies were elected in accordance with the domestic law procedure. In the Court’s view, the members of the vetting bodies enjoy a sufficient level of immunity after being elected.

As regards the allegation of non-substantial representation of judges in the composition of the vetting institutions, the Court noted that this scenario was adopted to avoid a conflict of interest. The Court found no violation of the principle of independence.

Regarding impartiality, the Court noted that there had been no confusion of the roles for the IQC. Regarding the Appeal Chamber, the Court stated that the applicant had failed to adduce any arguments capable of being examined on the merits. It was also satisfied that the Appeal Chamber had full jurisdiction in examining the grounds of her appeal and had given a detailed decision in her case.

The Court found no violation of Article 6 § 1 as regards the alleged lack of independence and impartiality of the vetting bodies.

iii. compliance with the requirement of fairness and compliance with the requirement to hold a public hearing before the Appeal Chamber

The Court reiterated that it was not its task to take the place of the domestic courts by interpreting domestic legislation and by assessing evidence. The investigation made by the IQC had been in accordance with the law. In the Court’s view, the results of the investigation should have enabled the applicant to comprehend the seriousness of the preliminary findings and to put together her defence. There was no indication that she had lacked the time and facilities to prepare an adequate defence.

The Court held that the Appeal Chamber had asserted full jurisdiction in the proceedings before it. Lastly, the Court noted that the applicant enjoyed the opportunity of being given at least one public hearing before a level of jurisdiction.

The Court thus found no violation of Article 6 § 1 as regards the alleged unfairness of the proceedings and the deliberation of the Appeal Chamber in camera.

iv. compliance with the principle of legal certainty

The Court reiterated that limitation periods are important for ensuring legal certainty. However, as regards the vetting process, the assets auditing was considered necessary to be calculated from the career start of each re-evaluation subject. The national authorities were required to evaluate the lawfulness of the total assets acquired by the persons to be vetted.

The applicant had not provided any supporting documents justifying the existence of an objective impossibility to demonstrate the lawful nature of financial sources, which was an attenuating circumstance provided in the Vetting Law. Furthermore, it was not per se arbitrary that the burden of proof had shifted onto the applicant in the vetting proceedings after the preliminary findings. The Court thus found no violation of Article 6 § 1 as regards the alleged breach of the principle of legal certainty.

v. if the lifetime veto violated the applicant’s rights under Article 8 of the Convention

The Court found no violation of Article 8 of the ECHR. The dismissal from office had constituted an interference with the applicant’s right to respect for private life. The interference, however, had been in accordance with the domestic law and had pursued legitimate aims in accordance with the Convention. The “pressing social need” in Albania to reform the justice system because of the high levels of corruption among it was noted as a necessity.

In assessing whether the reasons adduced by the vetting bodies had been “relevant and sufficient”, the Court examined the grounds for the applicant’s dismissal from office, specifically the evaluation of assets and professional competence.

The Court considered automatic disqualification of a judge who had blood ties with another judge, who had heard another set of proceedings concerning one or all parties to the proceedings, was not always called for. This approach may be particularly appropriate for a country the size of Albania. Notwithstanding, the Court considered that the findings made in respect of the evaluation of assets were sufficiently serious under national law to justify the applicant’s dismissal from office. The applicant’s dismissal, therefore, had been proportionate and the lifetime ban should be considered justified in the domestic context.

Jurisprudential dilemmas

The legitimate aim of the justice reform adopted in Albania cannot be subject of challenge, as the corruption and lack of citizens’ trust towards the judiciary were the points of weakness emphasized during domestic and international assessments. This problematic situation was noted even in the Court’s ruling, where a significant number of cases refer to similar problematic allegations, and a failure of the domestic courts to respect human rights. This final section will discuss selected details, as well as the significance of the judgment.  

Before assessing whether the vetting bodies were independent and impartial, the question arose whether these institutions could be framed as a “tribunal established by law” and if the applicant had access to it in accordance with the Vilho Eskelinen test (§ 62). In this regard the general principles of the Guðmundur Andri Ástráðsson v. Iceland case (§§ 24-27, 211-13, 219-21, 223 and 229) emphasize that “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by the court or tribunal with the particular rules that govern it. The composition of the bench in each case are also relevant. Moreover, for the purposes of Article 6§1, a “tribunal” is characterized in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner (ibid, § 219).

The term “independent” refers to independence vis-à-vis the other powers (the executive and the Parliament) and also vis-à-vis the parties. The standards of the “independent” tribunal are elaborated in the Oleksandr Volkov judgment. Thus, regard must be had, inter alia, to the manner of appointment of its members, their term of office, the existence of guarantees against outside pressure and the question whether the body displays an appearance of independence.

Even though the disciplinary proceedings against judges need to be handled by panels which have in substance representation of judges, in Xhoxhaj v. Albania, the Strasbourg Court considered it necessary to step back from its previous ruling of the Oleksandr Volkov  (§ 109) jurisprudence. The Albanian case is sui generis and it should be reviewed as such.

The fact that all judges and prosecutors in office would be vetted was sufficient to rule that the vetting institutions could not have a substantive representation of judges in their composition. It is very curious indeed that even the Government bonus accorded to the IQC members at the end of 2018, and the Prime Minister’s declaration concerning the progress of the vetting were not considered as an interference with the re-evaluation bodies’ independence.

The Court’s ruling in Xhoxaj changed the “course” of the case-law not only from Oleksandr Volkov, but even from Baka v. Hungary, as regards the principle of the irremovability of judges (§ 172). In Xhoxhaj, the balance between the public interest and the safeguards aimed at protecting judicial immunity, independence and the irremovability of them was considered existent. Although, the interesting aspect is that justice reforms of Hungary and Poland are similar with the ones in Albania.

The Court previously noted that inherent in the whole Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual`s fundamental rights (§ 89). The existence of corruption in the Albanian judiciary were important factors considered by the Court, leading it to apply a wide margin of appreciation, whereby the Albanian authorities were given a fairly large amount of discretion.

The vetting process is crucial for further reformation of the justice system in Albania. Its potential impact on other countries looking to adopt a similar model, raises serious questions that have yet to be answered. It might have been a better option for the Chamber to relinquish the case to the Grand Chamber to answer some of these questions. Article 30 does not oblige a Chamber to relinquish jurisdiction. The non-unanimous decision, however, which ruled no violation of Articles 6 § 1 and 8, suggests that the Court is not absolutely certain about the application of its standards for the Albanian sui generis vetting process.

Going forward, what is and will be very important to resolve for domestic authorities is the dilemma concerning the occupation of judicial vacancies in order to respect the right to a fair trial within a reasonable time.