Judicial reform under fire

Judicial reform is intended to depoliticize the authorities, create an independent judiciary and establish the population's trust in the legal system. To this end, new institutions are being established to fight corruption and the criminal justice system is being decentralized. The heart of the reform is the so-called vetting process. This involves screening all judges and prosecutors for professional aptitude, assets and possible links to organized crime. Every judicial official is screened and must face questions from a commission. Those who cannot prove where their property came from or how they financed their cars are suspended. Family members are also scrutinized.

Successful implementation of the reform is one of the key criteria for starting EU accession talks.  It is demanded because a systematic depoliticization of the judicial structures has never taken place. Even after the end of the communist dictatorship, each government exerted its influence. In addition, corruption is omnipresent. Criminals have had good opportunities to influence judgments through bribery. The population's trust in the judicial system is correspondingly low.

In July 2016, all 140 deputies voted in favor of the necessary constitutional amendment. It was a rare moment of unity in the Albanian parliament, whose dominant parties (PS and PD) have been irreconcilably opposed to each other since their inception. Shortly thereafter, the reform began with the resignations of several high-ranking judicial officials. The legal framework allowed them to leave the system voluntarily. The resignations were considered a clear indicator of the success of the process. There was an atmosphere of departure. One judicial officer who successfully went through the process reported, "The process came at the right time. I was totally intrigued."

Accusations and smoke bombs

But even before the first candidate was vetted, tensions between the two parties were revealed. Since Edi Rama's reelection in June 2017, his party (PS) had ruled with an absolute majority and was no longer dependent on its coalition partner (LSI). Rama used the room for maneuver he had gained in the election of the new attorney general. According to new legislation, the High Council of the Prosecutor's Office would have had to draw up a list of candidates. Since the body had not yet been created at that time, the government resorted to a controversial method: It elected prosecutor Arta Marku as the temporary replacement with the votes of her party in parliament. Because Marku's career had begun in Shkodër while current PS politician Ulsi Manja was chief prosecutor there, the opposition accused her of being close to the ruling party and interpreted her appointment as an attempt by the government to gain control over the prosecutor's office. PD leader Lulzim Basha called the proceedings a "coup d'état." Thus, a destructive narrative was born: the government was abusing the reform to influence judicial appointments. However, instead of convincing arguments, Basha provided only insults. He referred to Marku as a "puppet" and a "slave" of Rama.

Unsuccessfully, some opposition deputies tried to boycott the vote, remaining in the middle of the hall and setting off smoke bombs. Nevertheless, the vote took place. Footage from the parliament shows the new attorney general surrounded by red fog. The scene is emblematic of the politics that followed: while the PS tried to push through the reform at all costs, the opposition tried to prevent just that.

Constitutional crisis

The first decision was made by the Vetting Commission in March 2018 with the dismissal of Fatos Lulo. The constitutional judge could not justify a fortune of several hundred thousand euros. Since then, 276 cases have been processed. Only 113 people were confirmed in office and 101 were dismissed - the majority for unjustified assets. In addition, 35 officials resigned, 22 cases were dropped, and two officials were temporarily suspended. [1] o ensure correct decisions, several control bodies were implemented: A Qualification Chamber as an appellate body and two Public Commissioners. [1]  To date, the Appeals Chamber has reviewed 63 cases and modified 15 decisions.[ii] In addition, an International Observer Mission (IMO) monitors and advises the institutions.

However, the clear-cutting has had far-reaching consequences. Because the terms of office of some judges ended at the same time, only one of nine judges remained at the Constitutional Court in the meantime. At the Supreme Court, too, only one of 17 judges was confirmed in office. This left the country's two highest courts unable to act.

As one official after another left the judicial system, the old PS versus PD feud intensified. Since the June 2017 general election, accusations of vote rigging and vote buying have been mounting. The PD diagnosed a complete failure of democratic structures: under Rama, there could be no free elections; only uprisings could lead to the fall of the prime minister. So the opposition deputies resigned their mandates and refused to participate in the local elections in June 2019.   

Opposition boycott

The attempt to boycott parliamentary work through absence has a long tradition in Albanian politics. Opposition deputies (from both parties) repeatedly failed to appear in the plenum. This time, the remaining parliamentarians continued their work after a brief interruption. Thus, the PD followed up its radical rhetoric with action. At protest rallies, party supporters demanded Rama's resignation. Violent clashes broke out between police and demonstrators on several occasions. President Ilir Meta reacted by canceling the election on the grounds that he wanted to avoid further confrontations. However, it is not difficult to assume that he had another motive: Proximity to the opposition LSI party, of which he was chairman and which is now led by his wife.

Parliament overruled Meta's decision, and the municipal elections took place without PD and LSI. In many municipalities, only one candidate ran. Consequently, the PS won almost across the board. The opposition refused to recognize the results and painted Rama as an autocrat at the head of a one-party state. President Meta called for new elections, whereupon the government initiated impeachment proceedings against him. All parties accused each other of anti-democratic behavior. Because the Constitutional Court was no longer functioning at that time, it could not judge the validity of the elections. Nor was it possible to dismiss the president without the Constitutional Court. The Venice Commission later rebuked both sides, stating the president had exceeded his authority, but the impeachment proceedings were disproportionate.

Sharks and fish

The constitutional crisis became one of the greatest challenges to judicial reform. It provided material for the united opposition as the situation fit perfectly into their narrative of events. It was now said that Prime Minister Rama was abusing the paralysis of the courts. In the absence of the opposition and the Constitutional Court, he was passing unconstitutional laws.

Was the reform a victim of its own success? Was the extent of corruption underestimated? No, says political scientist Ledion Krisafi, vacancies were to be expected even at the highest level. After all, "the fish stinks from the head" is also true in Albania. Ultimately, the reform served its purpose.   

The assessment of the judicial officials quoted above is less positive. Their initial optimism was followed by doubts: At some point, they had noticed that some "small fish" had been dismissed. At the same time, she said, "big sharks" had managed to escape the evaluations. The fact that she wishes to remain anonymous suggests that politicians have not yet lost their influence. She fears the remarks could damage her career.  

Her statement fits the opposition's narrative. The relevant media call it the "double standard" of the commission. Can the multi-stage process be manipulated before the eyes of international observers? For Krisafi, it is clear: "Here we are in the realm of rumors." Indeed, some hard-to-believe stories are circulating through the Albanian media landscape. The coverage is as polarized as the politics. Disinformation is usually aimed at defaming the political opponent. This results in widespread mistrust. At the same time, it becomes possible to label any criticism "fake news" and disqualify critics as opponents.

Repressive tendencies and destruction tactics

Prime Minister Rama is countering the development with repressive policies. In December 2018, the government published a draft law aimed at tightening control over online media. The media regulator was to be empowered to oblige online media to remove content from websites, impose fines if necessary, or delete websites. Critics saw this as the preparation of a censorship agency and feared increasing self-censorship on the part of journalists. Political interference is detrimental to reform, because without independent reporting, it is impossible to fight corruption or win the trust of the population. Instead, Rama's proposal only reinforced the image of him as an autocrat.

The trial of strength went into the next round when it came to filling the vacant positions on the Constitutional Court. According to the constitution, judges should be appointed by parliament, the president and the Supreme Court on a rotating basis. Because the Supreme Court did not have a quorum, Rama again resorted to a stopgap solution: Parliament and the president were each to appoint two candidates. Again, opposition leader Basha spoke of a "coup d'état," while Meta tried to block the procedure. He nominated Besnik Muçi, the only candidate who had not yet passed the vetting process. He then declared the trial unconstitutional and refused to nominate a second judge. Later, the case Meta had calculated, or at least accepted, occurred. Muçi was dismissed by the Qualification Chamber. Thus, the Constitutional Court was again poorer by one judge.  With their reactions, Basha and Meta made themselves increasingly untrustworthy. After first complaining about the absence of the Constitutional Court, they now worked against its appointment.

Their behavior reflects the prevailing political culture, which is characterized by friend-foe thinking. The dominant premise for action is "the main thing is to oppose" and is usually aimed at harming the political opponent. Because the reform promises success, it is attacked. It is not the cause, but the object of the power struggle.

Delaying reform is an effective way to harm the government. First, the government's violations of deadlines can be interpreted as a lack of political will. Second, it means that untested judges continue to issue rulings - as in the Samir Tahiri case. In October 2017, the prosecution brought charges against the then minister of interior for alleged involvement in drug trafficking and participation in a criminal organization. The court sentenced him in September 2019 to three years and four months probation for abuse of office. He was acquitted of all other charges due to lack of evidence. Because none of the key judges in the Vetting process had been vetted at the time, the verdict left an unpleasant aftertaste.

In any case, the public's perception of the reform is ambivalent. When asked about the vetting process, people often dismiss it as a "show," saying that it was just "theater. After decades of disappointment, it seems difficult to imagine a fair justice system. At the same time, it is clear that the process is mandatory for the long-awaited EU accession.

SPAK as a beacon of hope

To date, only one-third of all judicial officials have been reviewed. "We are still in the old system," states political scientist Krisafi. That's why it's still too early to make a final judgment. All hope now lies in SPAK. The newly established independent authority for fighting corruption and organized crime will also investigate high-ranking politicians. SPAK's successes could convince the population of the reform's effectiveness. But initially, the establishment of the authority was delayed several times due to a lack of applicants. One of the few was the aforementioned Besnik Muçi. With his nomination as a constitutional judge, Meta reduced the pool by one candidate. Coincidence? In the end, the government decided to establish the authority with 8 officials instead of the planned 10.

Perhaps it is also the fear of SPAK that leads Meta to his boycott attempts. After all, he is considered one of the most corrupt figures in Albanian politics. During his time as deputy prime minister, a video surfaced showing him trying to rig the tender for a hydropower plant. Because the video had been secretly recorded, the court rejected it as evidence. Today, his enormous fortune is discussed on television programs. In a way, the Meta case represents the problem that the reform aims to fix. Its resistance ultimately speaks to its efficacy.

Last attempt

Despite all attempts to undermine it, judicial reform continued. President Meta reached deeper into his bag of tricks at the beginning of the year. What strategy remains for the resource-inferior side in an asymmetrical conflict? Nationalism. He gathered his supporters on the boulevard in front of Parliament for a "demonstration against the coup d'état." To nationalist music, he knelt before the crowd and formed the silhouette of the Albanian double-headed eagle with his hands. The fact that presumably everyone present knew of his wealth did not stop him from denouncing the exploitation of the population. He spoke of the oligarchy drinking the blood of the population. He called the government "putschists." Those present shouted "Rama ik" (Rama get lost!) and waved red and black national flags.

In the end, such a show of force can be interpreted as a sign of weakness. There will not be many more moments in which reform can be blocked. The new judicial institutions are in place. The Constitutional Court now has four members (only women!). A new attorney general has been formally appointed. The media law was also dispensed with at the last minute, and SPAK began its investigations. Clear progress can be seen-and the further the reform progresses, the less vulnerable the judicial system becomes.

[1] Information from the Vetting Commission (KPK) on 27.07.2020.