Communicated on 22 November 2019
SECOND SECTION
Application no. 40662/19
Antoneta SEVDARI
against Albania
lodged on 29 July 2019
SUBJECT MATTER OF THE CASE
The application concerns the outcome of the transitional re-evaluation (vetting) proceedings resulting in the applicant’s removal from work as a prosecutor. The last decision was given by the Special Appeal Chamber (Kolegji i Posaçëm i Apelimit) on 28 February 2019.
The applicant complains that there has been a breach of (1) Article 6 § 1 of the Convention on account of the alleged unfairness of the proceedings; (2) her right to respect for private life under Article 8 of the Convention on account of her removal from office and the alleged lifetime ban on practising law as an advocate (member of the Bar); and (3) Article 13 of the Convention on account of the alleged lack of an effective remedy in respect of the Article 6 and 8 complaints.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (see, for example, Olujić v. Croatia, no. 22330/05, 5 February 2009; Zalli v. Albania (dec.), no. 52531/07, 8 February 2011 and Mishgjoni v. Albania, no. 18381/05, 7 December 2010 and, most recently, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 117-28, 6 November 2018)?
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular:
(a) Did the applicant have at her disposal an effective remedy (for example under the Vetting Act or other laws governing the functioning and operation of the judiciary) to challenge the composition of the Special Appeal Chamber in the course of the vetting proceedings? If yes, did the applicant avail herself of such remedy?
(b) Has the applicant’s request of 23 May 2019 concerning the institution of disciplinary proceedings against two members of the Special Appeal Chamber and their removal from office on grounds of ineligibility been examined by the relevant institutions? If so, what has been the outcome of such proceedings?
(c) Did the applicant have at her disposal an effective remedy to challenge the alleged lifetime ban on practicing law as an advocate under Article 8? If yes, did the applicant avail herself of such remedy? In particular, did she make a request to be admitted to the Bar?
The parties are invited to submit relevant domestic law and case-law in support of their arguments.
3. Was the Independent Qualifications Commission which dealt with the applicant’s case “an independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see, for example, Kamenos v. Cyprus, no. 147/07, §§ 107-109, 31 October 2017)?
4. Was the Special Appeal Chamber which dealt with the applicant’s case “an independent and impartial tribunal” established by law within the meaning of Article 6 § 1 of the Convention? In particular, and without prejudice to Questions no. 2 (a) and (b) above, were the members of the Special Appeal Chamber appointed in compliance with the legal requirements, including the eligibility requirements, for the appointment of members of the vetting institutions?
5. Did the applicant have a “fair hearing” in the proceedings before the Special Appeal Chamber, in accordance with Article 6 § 1 of the Convention? In particular:
(a) Did the applicant request and have adequate time and facilities to make written submissions and present oral arguments before the Special Appeal Chamber (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018)?
(b) Did domestic law provide any statutory limitations for the alleged disciplinary breaches, including with respect to the alleged non-payment of taxes on domestic or foreign income earned by the applicant and her spouse from 1997 onwards? (see Dimitrovi v. Bulgaria, no. 12655/09, § 46, 3 March 2015, and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 137-140 ECHR 2013)? In this latter respect, did the applicant have an excessive or unreasonable burden of proof (see, mutatis mutandis, Gogitidze and Others v. Georgia, no. 36862/05, § 122, 12 May 2015)?
(c) Did domestic law, as interpreted by the vetting institutions, provide criteria or a threshold of gravity for determining the existence of “insufficient disclosure of assets” or conduct capable of “undermining public trust in the justice system” – under section 61 §§ 3 and 5 of the Vetting Act – as grounds for removal from office of prosecutors?
(d) What was the basis on which the Special Appeal Chamber found that the applicant’s overall conduct had undermined “the public trust in the justice system”?
The parties are invited to submit relevant domestic law and case-law in support of their arguments.
6. Without prejudice to Question no. 2 (c) above, has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention, on account of her removal from work? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see, most recently, Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018; Lekavičienė v. Lithuania, no. 48427/09, 27 June 2017; Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013, and Özpınar v. Turkey, no. 20999/04, 19 October 2010)? In particular:
(a) Was the applicant’s removal from office proportionate to the gravity of the alleged disciplinary breach on which it was based?
(b) Does the Advocates Act (law no. 55/2018) bar the applicant from practicing law as an advocate on account of her removal from office? If so, for how long?
7. Did the applicant have at her disposal an effective domestic remedy for her Article 6 complaints, as required by Article 13 of the Convention?
8. Did the applicant have at her disposal an effective domestic remedy for her Article 8 complaints, as required by Article 13 of the Convention?
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