FULLANI AND OTHERS v. ALBANIA

THIRD SECTION

DECISION

Application no. 37211/21
Arjana FULLANI against Albania

and 2 other applications

The European Court of Human Rights (Third Section), sitting on 25 February 2025 as a Committee composed of:

 Lətif Hüseynov, President,
 Darian Pavli,
 Úna Ní Raifeartaigh, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications (nos. 37211/21, 43738/21 and 51101/21) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 July, 28 August and 11 October 2021 by three Albanian nationals, Ms Arjana Fullani, Mr Aleksander Muskaj and Ms Evelina Qirjako (“the applicants”), who were born in 1965, 1969 and 1967, live in Tirana and were represented by Mr L. Bianku, a lawyer admitted to practice in Albania;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the fifteen-year ban imposed on the applicants on being appointed to certain posts and positions in the justice system, following the discontinuation of the vetting proceedings.

2.  The first applicant had been a judge between 1992 and 1995 and Director of the School of Magistrates between 2000 and 2008. In 2008 she was appointed to the Supreme Court of Albania for a nine-year term. The second applicant had been a judge since 1991 and, between 2008 and 2017, at the Supreme Court. Between 2002 and 2007 he served on the High Council of Justice. The third applicant also served as a Supreme Court judge between 2008 and 2017. According to the constitutional amendments and the legislation adopted in 2016, judges were to be subject to the transitional re‑evaluation process (“the vetting process”) before the Independent Qualification Commission (“the IQC”) and the Special Appeal Chamber (“the SAC”) (see Xhoxhaj v. Albania, no. 15227/19, 9 February 2021).

3.  All three applicants completed the nine-year term at the Supreme Court in 2017 and transitioned to private practice. The second applicant also taught in private universities.

4.  They sought the discontinuation of the vetting proceedings, which were initiated in early 2018. The IQC asked the High Judicial Council (“the HJC”) about their status in the justice system. The HJC informed the applicants about appellate-court vacancies in Tirana, Durres, and Vlora. They waived their statutory right, as outgoing Supreme Court judges, to be appointed to an appellate court. In April 2019 the HJC terminated their magistrate status due to that waiver. The first and third applicants challenged the HJC’s decisions before the Administrative Court of Appeal (“the ACA”), arguing that the end of their magistrate status was linked to the end of their term at the Supreme Court (see paragraph 7 below).

5.  On 8, 10 and 23 July 2019 the IQC discontinued the vetting proceedings for the third, second and first applicants respectively and imposed a fifteen‑year ban under Article G of the Annex to the Constitution on being appointed as a judge or prosecutor at any level, as a member of the HJC or High Prosecutorial Council, High Inspector of Justice or Prosecutor General (see the relevant legislation outlined in Bala v. Albania (dec.), no. 21141/20, §§ 21-40, 9 April 2024).

6.  The applicants challenged the ban before the SAC. On 11 November, 17 December 2020, and 12 February 2021 the SAC upheld it in respect of each applicant. The applicants were notified on 25 January, 1 March and 14 April 2021 respectively. The SAC held in the first applicant’s case as follows. The refusal to continue the “contract” with the State as an appellate judge – linked to the entry into force of Law no. 96/2016 – resulted in the loss of magistrate status. In the vetting process this refusal was interpreted as relinquishing judicial duties. The intent to undergo the vetting process could only be demonstrated by remaining in office and completing the process. By voluntarily declining the appellate judgeship, the vetting subject had to consider the legal consequences outlined in Article G of the Annex to the Constitution. The HJC terminated her magistrate status because she renounced the right to be appointed to the appellate court. This refusal was treated as equivalent to resignation from office, as no other grounds for termination under section 64 (1) of Law no. 96/2016 applied. The conclusion of her nine-year term as a Supreme Court judge did not constitute a valid legal basis for ending her magistrate status. The only relevant provision tied to her refusal of the appointment was “resignation” under section 64. Similar conclusions were made in the second and third applicants’ cases.

7.  By a judgment of 26 January 2021, the ACA amended the HJC’s decision, stating that the first and third applicants’ magistrate status had ended in July 2017 as a result of the end of their Supreme Court term. The HJC appealed. It appears that on 18 January 2024 the Supreme Court upheld the ACA’s conclusion but on different grounds. It held that the applicants had lost their magistrate status by having effectively abandoned such status, first through implicit actions such as the starting of their private practices and eventually by expressly rejecting the HJC’s offers of appointment as appeal judges. It also found that they would have been entitled to the salary of an appeal judge immediately after the end of their Supreme Court term.

8.  The applicants referred to some online media reports between 2015 and 2021, notably those reporting statements made by officials on the justice reform in Albania. Thus, in March 2021 F.Xh., a member of Parliament, commented on it, expressing his shock at the large number of individuals in the justice system allegedly involved in criminal activities.

THE COURT’S ASSESSMENT

9.  Considering the similar subject matter, the Court will examine the applications jointly under Rule 42 § 1 of the Rules of Court.

10.  The applicants claimed that due to the arbitrary interpretation of their situation under Article G of the Annex to the Constitution the SAC had imposed a fifteen-year ban on being appointed to the positions listed in Article G. That was a penal sanction that lacked legal basis and harmed their reputation as lawyers and social actors, disproportionately interfering with their rights under Article 8 of the Convention.

11.  The ban was imposed solely because their term as Supreme Court judges had ended in July 2017. After that they had to pursue another professional path, which was their fundamental civil right. It was inconceivable and unforeseeable that they would be expected to suspend their professional lives indefinitely, waiting for the vetting bodies to be established and operational, for the election of members of the HJC, which was necessary for appointments to the appellate judgeship, or waiting for relevant vacancies to become available. Even if they had been willing to wait, the process would have remained uncertain and indefinite, leaving them without a salary or employment. The first offer for the judgeship was made in 2019.

12.  After the ban the applicants were perceived by society and stigmatised as unworthy of performing judicial functions for fifteen years (in practice it was a lifetime ban, given their age), allegedly due to corruption. The ban inflicted an irreversible blow to their reputation, honour, and career, exacerbated by a concerted media campaign, both before and after the ban. That stigmatisation significantly impaired their ability to develop relationships with the outside world, whether employment-related or otherwise, and created serious obstacles to leading a normal personal life and earning a living.

13.  The Special Appeal Chamber imposed on the applicants a prospective fifteen-year ban on being appointed as judges or prosecutors at any level, as members of the High Judicial Council or High Prosecutorial Council, High Inspector of Justice or Prosecutor General. That ban was applicable to the vetting subjects in all categories (judges, prosecutors and legal advisers) who “resigned” from office during the transitional vetting process (see Bala v. Albania (dec.), no. 21141/20, §§ 22 and 70-73, 9 April 2024).

14.  Where a “private-life” issue is raised because of the consequences of a measure in an employment context, the threshold of severity becomes crucial, particularly in the specific area of access to posts or positions in the public service. Article 8 of the Convention does not guarantee, as such, a right to be appointed to a post or position in the public service or any form of eligibility for or access to senior positions in the justice system (see Bala, cited above, §§ 56 and 65, with further references). It is for the applicant to demonstrate convincingly that the threshold was reached, to substantiate the very serious consequences of the measure, affecting his or her private life to a very significant degree, and to define and substantiate the nature and extent of those consequences, which should have a causal connection with the measure (see Bala, § 57).

15.  During the vetting process and prior to the ban on being appointed to, inter alia, the judgeships, all applicants had been magistrates, had completed a nine-year tenure at the Supreme Court of Albania, retained magistrate status upon leaving that court, and were entitled to be appointed to a permanent appellate tenure (contrast Bala, §§ 60-62). The Court must determine, insofar as Article 8 is claimed to be applicable ratione materiae to the facts of the case, whether they were directly affected by the ban and, if so, to what extent.

(a)   Damage to the applicants’ reputation

16.  As for the applicants’ claim about damage to their reputation “as lawyers and social actors”, it has not been convincingly demonstrated that the ban caused such damage or that it reached the threshold of severity necessary for protection under Article 8 (see Bala, cited above, §§ 75-76). The first and third applicants also referred to a “concerted media campaign” against them, both before and after the ban (see paragraph 8 above). However, there is no evidence of any individualised negative remarks made by the domestic authorities as regards the present applicants’ professional performance or their personality, moral values, or character (see Gyulumyan and Others v. Armenia (dec.), no. 25240/20, § 93, 21 November 2023).

(b)   Alleged denial of access to senior positions in the justice system

(i)      The applicants’ career choices and their impact on the fifteen-year ban

17.  First, the applicants were aware between 2017 and 2020 that eligibility for most posts and positions in the judiciary depended on maintaining magistrate status. After completing their tenure at the Supreme Court, they were entitled to be appointed to an appellate judgeship, a post in which they were not interested. For the purposes of this complaint under Article 8, it suffices to note that this employment opportunity would have allowed them to undergo the vetting process, and in the case of a successful outcome it would have provided them with life tenure. However, it does not appear that they sought to take advantage of this opportunity, preferring instead to pursue a private practice. The Supreme Court found that through such conduct they had effectively abandoned their magistrate status. When offered the appellate judgeship in 2019, and despite any delays in this respect, they unequivocally and permanently waived that one-time statutory entitlement. While accepting the appellate judgeship in mid-2017 would have meant (at least, temporarily) a certain degree of uncertainty, such circumstances did not, in themselves, constitute an excessive burden in the context of the one-time transitional vetting process (see Bala, cited above, § 70). In this respect, their position would not have been materially different from that of other judges waiting to be vetted. While the second and third applicants stated that their refusals to accept the appellate judgeship were based on the assertion that they had been uninterested “at that time”, it seems clear that, under national law, such a choice triggers the loss of magistrate status. The Court notes that the status of magistrates, which guarantees life tenure and other privileges, also comes with certain restrictions as to career choices.

18.  Second, the Court notes that individuals who held certain positions when the vetting process began were required to undergo the one-time transitional vetting process, which was designed to restore public trust in the justice system, if they wished to continue serving in that same position. At the latest by the time of the IQC’s decisions in their cases, the applicants were aware of this prerequisite and clearly opted out of the vetting process. They did not claim before the SAC, nor do they claim before the Court, that the vetting bodies should have continued the vetting proceedings in their cases. The SAC was not called upon to assess whether they met the requirements of the vetting process, that is whether they were suitable to serve within the justice system (see Bala, cited above, § 76).

19.  Lastly, the Court notes that their cases did not determine any criminal charge (see Xhoxhaj v. Albania, no. 15227/19, §§ 240-46, 9 February 2021), and that the SAC’s interpretation of “resignation” under Article G of the Annex to the Constitution has not been shown to be arbitrary (compare Gashi and Gina v. Albania, no. 29943/18, §§ 51, 59-61 and 69, 4 April 2023, where a domestic court acknowledged the unlawfulness of a suspension from office, and its negative effects persisted for a prolonged period, with no domestic legal basis). Therefore, the adverse consequences they allegedly sustained did not result from a penalty that would clearly be tainted by arbitrariness.

(ii)    Access to positions open to magistrates

20.  Since leaving the Supreme Court, the applicants have not applied for any specific positions in the justice system or indicated a concrete interest in any particular positions. They complain generally about the restrictions of their future career choices. In view of the above-noted facts, any future obstacle to the applicants’ access to the appellate judgeship stems from their own choice not to seek such appointments and the termination of their magistrate status. It cannot therefore be regarded as a serious consequence of the ban imposed by the SAC (compare Kokëdhima v. Albania, no. 55159/16, §§ 78-79, 11 June 2024; Lekavičienė v. Lithuania, no. 48427/09, § 38, 27 June 2017; and Cakicisoy and Others v. Cyprus (dec.), no. 6523/12, §§ 50‑51, 23 September 2014). The same conclusion applies to the other posts requiring magistrate status, such as district-court judgeships and career prosecutor positions. To claim to be a victim of a violation of the Convention under Article 34, an applicant must demonstrate that they were directly affected by the contested measure. The Court’s task is to assess whether the application of domestic law and practice to the applicant resulted in a violation of the Convention.

(iii)   Access to positions open to non-magistrates

21.  As to access to the positions open to non-magistrates (see Bala, cited above, §§ 32-40 and 62), the applicants have made no specific argument relating to the alleged interference with their right to respect for private life either. For instance, it has not been argued that, in the absence of the ban, Albanian law would have allowed them to seek appointment for another term in the Supreme Court (compare Lekavičienė, cited above, § 38, on readmission to the profession). Nor is there any indication that, prior to the SAC’s decision, they applied for any vacant positions, such as those of a constitutional judge, a member of the Councils, Prosecutor General, or High Inspector of Justice. In any event, even assuming that a former Supreme Court judge may have good prospects of being considered for such positions, all of them are senior justice-sector positions ultimately dependent on the appointment or election powers of political bodies or, in one instance, the Supreme Court (see Bala, cited above, §§ 64-66). In terms of the process of selection, there are multiple filters or pre-selection mechanisms that typically produce a shortlist of top candidates, followed by appointment or election for one of those candidates by the relevant decision-making body.

(c)   Conclusion

22.  The applicants’ choices were motivated by their professional aspirations which, at the advanced stages of their career, appeared to be directed outside the justice system. They were able to successfully pursue gainful activities in private practice (compare Bala, cited above, §§ 67-73).

23.  Even assuming that the vetting legislation would have restricted to some extent the applicants’ career choices during the vetting process, had they chosen to undergo it, the negative effects of the ban either fell outside Article 8’s scope of protection or have not met the threshold of seriousness required for Article 8 to be engaged. Some effects have not been shown to have a causal connection with the ban.

24.  Accordingly, the complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

25.  Thus, the Court will not examine whether the ban was in accordance with the law, including whether it was foreseeable to the applicants, and proportionate to a legitimate aim (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, §§ 93 and 134, 25 September 2018).

26.  The applicants also complained under Articles 6, 7 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention.

27.  The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications,

Declares the applications inadmissible.

Done in English and notified in writing on 20 March 2025.

 Olga Chernishova Lətif Hüseynov
 Deputy Registrar President