3 July 2019 The letter of President Meta addressed to the High Judicial Council on filling the vacancies in the High Court
REPUBLIC OF ALBANIA
No. 1778/2 Prot. Tirana, on 03.07.2019
Subject: Detailed information is required, as well as taking of measures by the High Judicial Council for the proposal of the candidates for the fulfillment of the vacancies in the High Court.
To: Mrs. Naureda LLAGAMI
CHAIR OF THE HIGH JUDICIAL COUNCIL
To the attention of: MR.LUIGI SORECA
EUROPEAN UNION AMBASSADOR TO ALBANIA
EMBASSIES OF THE EUROPEAN UNION COUNTRIES IN ALBANIA
H.E.Mrs. LEYLA MOSES-ONES
CHARGÉ D’AFFAIRES, UNITED STATES EMBASSY IN ALBANIA
Honourable Mrs. Llagami,
The Office of the President of the Republic via letter no. 1778 prot, dated 06.06.2019, has forwarded to the High Judicial Council (HJC) the concern of the President of the Republic on the situation in the justice system due to the non-functioning of the highest institutions of justice, which also includes the High Court.
As cited in the letter no. 1778 prot, dated 06.06.2019, the High Court has been functioning for a long period of time with a short judicial body, with only 3 out of 19 judges being their general total number. Presently, the High Court is left with only two members, and is legally unable to form a tribunal body, thus being virtually out of its function.
Article 136 of the Constitution provides that Judges of the High Court are appointed by the President of the Republic, upon the proposal of the High Judicial Council, for a nine-year term without the right of reappointment. Whereas Article 172, point 12, paragraph 2 of the Constitution provides that with the creation of High Judicial Council, the President appoints the judges of the High Court. According to Article 136 of the Constitution.
Therefore, refering to these constitutional provisions, the High Judicial Council is the body that must propose to the President of the Republic the candidates that are elected among the lawyers to be appointed in the High Court, as well as the judges that are promoted to this Court.
Based on these constitutional provisions, referring to the fact that up to the present at the Institution of the President of the Republic no proposal has been administered by the High Judicial Council, and under the conditions when there is an uncertainty as to until this situation will last in the High Court, the President of the Republic, H.E. Mr. Ilir Meta, pursuant to Article 92 / h of the Constitution,via letter no. 1778 prot, dated 06.06.2019, has requested from your institution information on two essential aspects, as following:
- Information on the progress and the activity of the HJC for the process of announcing and administering applications for filling the vacancies at the High Court, and at what stage is the process of verification and evaluation by the Council, regarding this issue with such high importance for the country.
- Referring also to the publicly disclosed information, the President of the Republic has requested information whether the opinion of the EU expertise mission “Euralius V” was administered to the High Judicial Council, suggesting to the Council (HJC) the use of a provisional scheme / solution sui generis for filling the vacancies at the High Court, assigning “temporary” members to this court through a lower-level courts delegation scheme to form a temporary tribunal body at the High Court until the number of the three colleges is reshaped.
As a response to the request for information, the High Judicial Council, through the Secretary General, via letter no. 3061/1 prot, dated 18.06.2019, has confirmed that:
“The High Judicial Council received by “EURALIUS V” Mission via electronic form an opinion, which is a working paper, being processed and evaluated by both the Council and EURALIUS. This document has not yet been subject to evaluation by the Council and as soon as it reaches an conclusion, your institution will be informed. ” The opinion of “Mission EURALIUS V” was also attached.
The response to the request of the President of the Republic does not meet the formal and substantive criteria.
Firstly, referring to the content of the response of the High Judicial Council (HJC) given in document no. 3061/1 prot, dated 18.06.2019, there is a lack of commitment by the HJC to return a detailed response in substance to the request of the President of the Republic for such an important issue.
The High Judicial Council has not replied to the President of the Republic for the information required on the performance and activity of the HJC for the whole process of announcement and administering applications under the Constitution and law on filling vacancies at the High Court, as well as at what stage is the process of verification and evaluation by the Council.
The High Judicial Council was constituted on 20 December 2018 when it held its first meeting and where it elected the Chair of this body. In Article 174, paragraph 1, letter “a”, “The Sub-legal Acts”, of Law no. 96/2016 “On the Status of the Judges and Prosecutors in the Republic of Albania”, is provided as following:
“The High Judicial Council and the High Council of Prosecutors are in charge to approve the detailed regulations, according to the provisions and terms of this law. a) Within three months from the creation of the Councils, acts related to out-of-office activities, creation of personal files, temporary assignments of new appointees in commanded positions, magistrates in the delegation scheme, promotion at higher or specialized levels, appointment of non-judicial members of the High Court, appointment of the Attorney General and assignments to temporary positions”.
Thus, according to this provision, it results that the HJC has exceeded the initial three-month deadline, defined by Article 174/1, letter “a” of Law no. 96/2016, even with other 3 more months, a period within which the council should have adopted all the necessary sub-legal acts to initiate the vacancy filling procedures at the Supreme Court according to the constitution and the law.
This 3-month deadline set by law has ended on March 12, 2019, while 3 months and 20 days have passed since that moment, still the High Judicial Council has not fulfilled its legal obligations.
In such a situation, the President of the Republic considers it necessary to request as soon as possible, information from the HJC what has been done concretely up to date on this issue to clearly identify the fact of what was the cause of breaking the legal deadline for drafting the sub-legal acts that would enable the initiation of vacancy clearance procedures at the High Court?
Has this come about for reasons that are independent of the will of the HJC, or what have been the problem and the factors that have affected this situation?
If the HJC has faced causes which are independent by it, which may come from the identification of issues in the quality of the law, the President of the Republic also seeks to be informed about whether the Council has requested or not to the Parliament of Albania or the Ministry of Justice to make changes in legislation in order to improve it?
This issue is not elective by HJC, but a task directly designated by law no.115 / 2016 “On the organs of governance in the justice system”, where in Article 93, point 1 and 3 of this law is provided as following:
“1. The High Judicial Council responsible for expressing opinions and making proposals regarding changes in legislation that may affect the work of the judiciary and any other matter under the responsibility of the Council.”
- The Council proposes to the Minister of Justice the exercise of the initiative for legal changes in respect of any matter under his responsibility.
Under these conditions, the President of the Republic seeks to be informed by the HJC itself to provide an evaluation of this body on the causes of the delays.
The request for information relies not only on Article 92/h of the Constitution, but also referring to the competences of the President of the Republic under Article 136, which provides for the right of the President of the Republic in the process of appointing judges of the High Court, which may eventually be violated by the inaction or delays by the High Judicial Council.
These delays in the conduct of the respective procedures violate directly the functioning of the High Court therefore the stability of the judicial system as a whole.
The lack of functionality of the High Court constitutes a direct violation of Article 42/2 of the Constitution of the Republic of Albania and Article 6/1 of the European Convention on Human Rights.
Referring to the mandatory constitutional cooperation between our two institutions, the President of the Republic must be fully informed by the High Judicial Council on the progress of this process to clarify the fact that when can he be able to exercise his constitutional powers to appoint the members of the High Court, in order that this court becomes as quickly as possible functional with judicial bodies selected and appointed according to constitutional standards.
In this role, the constitutional interest of the President of the Republic is linked not only with the correct practice and the appropriate time exercising of constitutional competences, but also with the correct implementation of the justice system reform towards the quality of offering justice to citizens who have the right to review their claims through a due process within a reasonable time and by a court established by law.
As stated above, the President of the Republic, pursuant to Article 92 / h and pursuant to Article 136 of the Constitution, requests from the High Judicial Council detailed and complete information on the issues set out above, and the maximum commitment of this body to fulfill the constitutional purpose.
Secondly, referring to the content of the document “Legal Opinion”, “On the Emergency Situation at the High Court” dated 29 May 2019, drafted by the experts of the Mission “EURALIUS V”, the President of the Republic considers it necessary to submit His assessment as following:
The document “Legal Opinion”, “On the Emergency Situation at the High Court” dated 29 May 2019, drafted by the experts of the “EURALIUS V” Mission, Grzegorz Borkowski and Klodian Rado, it results that this opinion was given within the request of the High Judicial Council addressed to the “EURALIUS V” Mission to answer the question of whether there are legal grounds to provide a quicker solution to the emergency situation (while the drafting of sublegal acts for the promotion of judges and the appointment of non-judges is still in process).
From this information provided in the document produced by the Euralius mission, and referring to the contents of the letter of HJC no. 3061/1 prot, dated 18.06.2019, it results that, until 29 May 2019, the High Judicial Council has not yet drafted and adopted sub-legal acts for the promotion of judges and the appointment of non-magistrate members to the High Court.
The President of the Republic, referring to the content of this legal opinion and the breaking of the deadline by the HJC for the drafting of the necessary sub-legal acts, finds unreasonable the fact that it was not acted in due time to request EURALIUS all the assistance necessary to draft and adopt the necessary sub-legal acts, while seeking an opinion on resolving an “emergency” situation, which was recently risen when the High Court remained with only two members.
As mentioned above, HJC has exceeded by other 3 months, the original deadline of 3 months provided in Article 174, point 1 of Law no. 96/2016, for the approvement of sub-legal act that would allow the starting of the proccedures for filling the vacancies in the High Court.
Therefore, in the conditions when 6 months and 20 days have passed since the creation of the HJC and the sub-legal acts for this process have not yet been drafted, the presenting of the emergency situations by the HJC and EURALIUS is utterly unjustified.
If the High Judicial Council had concluded the adoption of sub-legal acts within the deadline set by law (12 March 2019), then after this period it may have been opened the procedures for filling vacancies at the High Court and consequently the court could be functional today.
Referring to this situation, the President of the Republic expresses the view that the Constitution and the laws provide a clear mechanism for the permanent replacement of the High Court’s judicial body, thus the High Judicial Council has the responsibility to act without any delay for drafting and the approvement of sub-legal acts in order to announce the summons to fill all vacancies in this court.
The process of selecting judges or candidates to be members of the High Court is a direct responsibility of the HJC. As a beneficiary body of international assistance, the HJC has full rights to seek opinion from the available expertise, but in accordance with the Constitution and law, the HJC is the only body that has the responsibility for the success or the failure of a correct implementation.
The President of the Republic supports the recommendation of “EURALIUS V”, on page 7 of the document, in Chapter IV “Conclusion”, which cites that:
“The promotion of judges to the High Court and the appointment of non-judicial candidates to this Court constitute a fundamental priority. The HJC is recommended to accelerate as quick as possible the process of drafting necessary sub-legal acts, as well as declare the announcements for the promotion of judges to the High Court as well as for the appointment of candidates coming from outside the judiciary. “
According to this EURALIUS Legal Opinion, it is seen that the HJC has by far failed to respect the constitutional and legal obligation in terms of the deadline and the definition of the rules to make possible the nomination of candidates for the appointment of High Court judges.
Regarding the other part of the opinion of “EURALIUS V”, it concludes with the recommendation that:
“In order to overcome this transitional period, while the process of promotion and appointment to the High Court has not yet been completed, the HJC may consider using the scheme of delegation and assignment of temporary judges to the High Court . In addition, if there is no proper magistrates in the delegation scheme that meets the requirements of the High Court, then referral to Article 46 of the Law on Status would be arguable and possible, transferring for a provisional period and with their consent in the High Court, judges with very good professional performance “, the President of the Republic evaluates that this proposed recommendation:
- It violates the constitutional powers of the President of the Republic;
- This proposal conflicts flagrantly with the provisions of Article 136, 179, paragraph 4 and 12 of the Constitution of the Republic of Albania;
- It seriously damages the main goals over which the constitutional and legal package of reform in the justice system was adopted and approved;
- It damages public confidence in the new justice system bodies;
- Enables the High Court to function with temporary judges who will exercise their functions at the country’s highest court, without first passing the transition reassessment process, undermining confidence in the approved justice reform since nearly 3 years ago.
This opinion is in itself an attempt to provide a solution with extra legal means not at all constitutional and legal under the argumentation of the emergency situation. Through it, it is primarily intended to hide the problems, or the shortcomings of the existing legal basis that may have created this situation. Due to the use of this inappropriate mechanism proposed by EURALIUS, it may be possible to temporarily promote the career of judges who do not deserve to be part of the justice system and can be assessed by the transitional revaluation bodies (vetting bodies).
We should remember that the mission “EURALIUS V” has provided its expertise in the drafting and adoption of the legal package with regards to reforming the justice system, and if this legal package presents shortcomings, part of this cost is also the responsibility of this mission, which has assisted the Special Reform Commission in the Justice System and the Parliament of Albania in adopting accompanying laws with regards to justice system reform.
If the legal package presents a deficiency, then this must first be acknowledged, evidenced and promptly presented to the Parliament of Albania.
The Parliament has all the capabilities, and at the same time, the obligation to improve the existing legal framework to resolve any emergencies created for the formation of judicial bodies and the establishment of an appropriate constitutional or legal mechanism that will enable the resolution of the problematic review within a reasonable time of the 32,000 retained cases awaiting to be dealt with in the High Court.
It is far from logical and fair that by arguing the emergency situation “EURALUS” proposes such extra legal solutions that seriously endanger the provisions of the Constitution of the Republic of Albania.
This, besides lowering confidence in the reform, at the same time raises the question of the professional level and impartiality of this mission in the Republic of Albania.
“EURALIUS V” is an expertise mission that assists all the new institutions of the justice system and the Albanian Parliament, and should provide clear objective for appropriate and coordinated solutions in accordance with the Constitution and with all actors, and not hide the shortcomings and problems of legal acts, nor be involved in “creative” misinterpreted activities.
We should not forget that the constitutional reform package in the justice system was not only drafted and approved by the Albanian Parliament with absolute consensus, but it was implemented based on the valuable recommendations of the prestigious Venice Commission, studied and consulted for one long time with this Council of Europe advisory body.
The justice system in the Republic of Albania has been fully reformed by building a mechanism that promotes its functioning with ultimately selected judges and prosecutors with high moral and professional integrity, who deserve to be part of it, but not with temporarily assigned individuals placed at the highest-level court in the country.
It is not logical that 3 years after the adoption of constitutional changes, “EURALIUS” to re-proposes such temporary transitory arrangements that severely violate the constitutional provisions.
The fundamental rights of the citizens of Albania to have a judicial review within a reasonable time and by a court set forth by law are being violated openly by the piling of cases brought to the High Court, for which no one today holds any public responsibility and no one can tell Albanians today when their processing will end.
Failure to provide a judicial body under the law in the High Court may bring serious and different problems to criminal or civil proceedings, which dictate the indispensable consideration of the case within a certain procedural deadline. This requires increased attention and supervision by the HJC to avoid any consequences in this regard.
The President of the Republic requests from the High Judicial Council the very serious and priority assessment of this matter and the undertaking of all measures for accelerating the process of compiling the necessary sub legal acts and for filling the vacancies at the High Court in meeting the expectations of article 136, 179 paragraph 4 and 12 of the Constitution.
In conclusion, the President of the Republic, pursuant to the Constitution of the Republic of Albania, through this letter:
- Requires the submission of detailed information by the High Judicial Council, as set out above;
- Intends to encourage the HJC to be fully functional in its workin fulfilling the constitutional obligations within the legal deadlines so that the Republic of Albania might have as soon as possible a functional High Court;
- He is anticipating the creation of an extralegal situation that may arise from the use of the approach advocated by EURALIUS V, which, as it has happened before (with the election of the Prosecutor general with only 69 votes), could undermine confidence in Justice Reform and would constituted an open violation of constitutional provisions;
- Intends to eliminate any possible opportunities of violation of constitutional powers of the President of the Republic;
- To contribute in ensuring as soon as possible the full access to all levels of the judiciary, as well as the fundamental rights and freedoms of Albanian citizens are guaranteed and not affected by the non-functioning of the High Court.
Waiting for a detailed and rapid response, the President of the Republic guarantees that, based on the available constitutional instruments, he will, at all times, provide maximum cooperation and support to the High Judicial Council, but will not allow any violation of his constitutional authority in this process, for any reason.
Wishing you good luck in your task,