Published on 19 June 2023
THIRD SECTION
Applications nos. 16701/19 and 32489/19
Fatmir HOXHA against Albania
and Bashkim DEDJA against Albania
lodged on 11 March 2019 and 17 June 2019 respectively
communicated on 31 May 2023
SUBJECT MATTER OF THE CASES
The applications concern the vetting process in Albania (see Xhoxhaj v. Albania, no. 15227/19, 9 February 2021; Besnik Cani v. Albania, no. 37474/20, 4 October 2022; Sevdari v. Albania, no. 40662/19, 13 December 2022; and Nikëhasani v. Albania, no. 58997/18, 13 December 2022). The applicants were judges of the Constitutional Court; the second applicant also held the position of that court’s President. They were dismissed from their posts, under section 61 (3) of the Vetting Act, on account of the vetting bodies’ findings under the first component of the vetting process, that is the assessment of assets.
The first applicant’s dismissal was based, essentially, on failings relating to declaring and justifying a loan received from A.G., his brother-in-law, to finance the purchase of a flat.
The second applicant was first confirmed in his post. However, following an appeal by the Public Commissioner, the Special Appeal Chamber dismissed the applicant from office, essentially, on account of having failed to justify loans from his brother-in-law E.C. and brother M.D. for purchasing flats and to declare the use of another flat owned by his brother L.D.
COMMON QUESTION TO THE PARTIES
1. Did each applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with the requirements of Article 6 § 1 of the Convention, in the vetting proceedings considered in their entirety and in the light of the criterion of overall fairness? Reference is made, in particular, to the matters mentioned below.
CASE SPECIFIC QUESTIONS
Application no. 16701/19:
2. As to Article 6 § 1 of the Convention, was the applicant afforded an adequate opportunity to have knowledge of, make submissions and adduce evidence on the factual and legal matters underlying the Appeal Chamber’s conclusions under section 61 (3) of the Vetting Act, in particular, as regards the loan from A.G., including on the legality of A.G.’s financial resources, his capacity to lend and his compliance with national tax laws at the relevant time? Was the additional evidence that the applicant sought to introduce in the appeal proceedings relevant to the question of A.G.’s lawful income, including his compliance with the relevant tax laws?
3. Having regard to above elements, did the applicant have to bear an excessive burden of proof, in breach of Article 6 § 1 of the Convention (see Xhoxhaj v. Albania, no. 15227/19, §§ 349 in fine and 352, 9 February 2021)?
Application no. 32489/19:
4. As to Article 6 § 1 of the Convention, was the applicant afforded an adequate opportunity to have knowledge of and adduce evidence on the factual and legal matters underlying the Public Commissioner’s appeal and, subsequently, the Appeal Chamber’s conclusions? Reference is made, in particular, to the matters concerning the loans from the applicant’s relatives residing abroad, including on the legality of their financial resources, their capacity to lend and their compliance with foreign tax laws at the relevant time.
5. Was there a violation of Article 8 of the Convention on account of the applicant’s dismissal from office in the vetting proceedings? In particular, was the interference “necessary in a democratic society”? Specifically:
5.1. Was it proportionate for the applicant to be dismissed on the basis that past loans obtained from family members residing abroad were deemed not to have constituted his lawful income, due in part to his inability to prove that those relatives had paid income tax in their countries of fiscal residence?
5.2. Considering the Appeal Chamber’s finding that the applicant’s relative residing in Italy (Mr E.C.) had paid foreign taxes on at least part of his family income, why was that income considered insufficient by the Appeal Chamber to justify the loan given to the applicant?
5.3. With respect to the applicant’s alleged failure to disclose – in assets declarations and/or the vetting declaration – that he had in use a flat located in Golem, Kavajë, was such an omission sufficiently serious, in itself, to justify the applicant’s dismissal from his judicial position?