Communicated on 22 November 2019
SECOND SECTION
Application no. 41047/19
Admir THANZA
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 office as a Supreme Court judge. The last decision was given by the Special Appeal Chamber (Kolegji i Posaçëm i Apelimit) on 18 April 2019.
The applicant complains that there has been a breach of Article 6 § 1 of the Convention, on account of the alleged unfairness of the proceedings, his right to respect for private life under Article 8 of the Convention; and Article 13 of the Convention on account of the alleged lack of an effective remedy in respect of his complaint under Article 8.
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; Mishgjoni v. Albania, no. 18381/05, 7 December 2010; Zalli v. Albania (dec.), no. 52531/07, 8 February 2011, 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 request the disclosure of any confidential evidence which served as the basis for the preparation of the report by the Directorate for Classified Information Security report (“DCIS”) on 2 November 2017? If so, what decision did the vetting institutions take in respect of such request?
(b) Did the applicant request additional time and facilities to prepare his defense and submit additional documents in response to the financial assessment reports prepared by the vetting institutions? If so, what decision did the vetting institutions take in respect of such request?
(c) Did the applicant request the Special Appeal Chamber (“SAC”) to hold a public hearing in his case? If so, what decision did the SAC take in respect of such request?
(d) Did the applicant have at his 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 himself of such remedy? In particular, did he 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 (“IQC”) and the SAC which dealt with the applicant’s case “an independent and impartial tribunal”, as required by Article 6 § 1 of the Convention (see, for example, Kamenos v. Cyprus, no. 147/07, §§ 107-109, 31 October 2017)?
4. Did the applicant have a “fair hearing” in accordance with Article 6 § 1 of the Convention? In particular:
(a) Did domestic law provide for any statutory limitations for the alleged disciplinary breaches (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)?
(b) Were the principles of fairness and equality of arms respected in the proceedings concerned? In particular:
(i) Without prejudice to Question No. 2 (a), did the applicant have access to or the possibility to rebut the evidence supporting the conclusions of the DCIS report of 2 November 2017 (see, mutatis mutandis, Matyjek v. Poland, no. 38184/03, §§ 55-65, 24 April 2007; and Bobek v. Poland, no. 68761/01, §§ 56/75, 17 July 2007)? Did the vetting institutions request the disclosure of, have access to and examine such evidence? What safeguards does domestic law provide for ensuring access to confidential or classified evidence and allowing the vetting institutions the possibility to assess the relevance and importance of such confidential or classified evidence (compare I.R. and G.T v. the United Kingdom (dec.), nos. 14876/12 and 63339/12, 28 January 2014)?
(ii) Without prejudice to Question No. 2 (b) above, did the applicant have adequate time and facilities for the preparation of his defence with respect to the financial assessment reports prepared by the vetting institutions (see, most recently, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 117-28, 6 November 2018)?
(c) Were the vetting institutions’ findings concerning the calculation of the applicant’s annual living expenses (shpenzime jetese/jetike) for the period running from 1992 to 2003 consistent with prior case-law?
5. Without prejudice to Question no. 2 (c) above, has there been a breach of Article 6 § 1 of the Convention on account of the SAC’s alleged failure to hold a “public hearing” in the applicant’s case (see, most recently, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 117-28, 6 November 2018; and, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 72-75, ECHR 2007‑II and Jussila v. Finland [GC], no. 73053/01, § 40-44, ECHR 2006‑XIV)?
6. Without prejudice to Question no. 2 (d) above, has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on account of his removal from office? 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 breaches on which it was based?
(b) Were the procedural safeguards, namely a fair decision-making process, inherent in Article 8 of the Convention, respected by the vetting institutions in the applicant’s case (see, for example, Turek v. Slovakia, no. 57986/00, § 111, ECHR 2006‑II (extracts)), including with respect to the consideration of the applicant’s alleged failure to disclose the plea bargaining sentence (sentenza di patteggiamento) imposed by an Italian court in 1999? As regards the latter, did the SAC examine an Italian expert’s opinion submitted by the applicant?
(c) Does the Advocates Act (Law no. 55/2018) bar the applicant from practicing law as an advocate on account of his removal from judicial office? If so, for how long?
7. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8, as required by Article 13 of the Convention?
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