Xhoxhaj v. Albania

Information Note on the Court’s case-law 248

February 2021

Xhoxhaj v. Albania - 15227/19

Judgment 9.2.2021 [Section III]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Tribunal established by law

Bodies set up to vet serving judges and prosecutors to combat corruption objectively independent and impartial tribunals, established by law: no violation

Fair hearing

Lack of statutory limitation for asset evaluation not breaching principle of legal certainty, given its sui generis nature and context: no violation

Article 8

Article 8-1

Respect for private life

Justified dismissal of judge and lifetime ban from re-entering justice system as result of individualised and serious findings of vetting process: no violation

Facts – The applicant, a former judge of the Constitutional Court of Albania, was dismissed from her post following a vetting process and she was banned for life from re-entering justice system.

The vetting process was part of a national reform effort, introduced in response to the widespread perception of corruption and a lack of public trust in the national judicial system. Under the Vetting Act, all serving judges and prosecutors were subject to vetting by an Independent Qualification Commission (“IQC”) and a Special Appeal Chamber on appeal. Vetting consisted of the re-evaluation of three criteria: an evaluation of assets, an integrity background check to discover links to organised crime, and an evaluation of professional competence.

In the applicant’s case, it was found, in relation to the evaluation of assets, that she had made a false declaration and concealed her and partner’s acquisition of a flat. In relation to the evaluation of professional competence, the applicant had failed to disclose a conflict of interest and to recuse herself from examining a constitutional complaint.

Law – Article 6 § 1:

(a) Independence and impartiality of the vetting bodies:

The composition of the IQC and Appeal Chamber had been established in accordance with the law. They had been empowered to deal with all questions of fact and law, and then take a final and binding decision on the merits of the case. The domestic legislation also provided that the bodies would exercise their functions independently. As the IQC and Appeal Chamber had been set up and composed in a legitimate way, satisfying the requirements of a “tribunal established by law”, the applicant had had access to a “court”. Article 6 § 1 therefore applied under its civil head.

Regarding independence, once appointed, the vetting bodies had not been subject to any pressure by the executive during the examination of the applicant’s case. That their members had not been drawn from the corps of serving professional judges had been consistent with the spirit and goal of the vetting process, specifically in an attempt to avoid any individual conflicts of interest and to ensure public confidence in the process. The fixed duration of their terms of office was understandable given the extraordinary nature of the vetting process. The domestic legislation had provided guarantees for their irremovability and for their proper functioning.

Regarding impartiality, there had been no confusion of roles for the IQC: the statutory obligation to open the investigation was not dependant on the IQC bringing any charges of misconduct against the applicant; its preliminary findings had been based on the available information without the benefit of the applicant’s defence; and it had taken its final decision on the applicant’s disciplinary liability on the basis of all the available submissions, including the evidence produced and the arguments made by the applicant at a public hearing. The mere fact that the IQC had made preliminary findings in the applicant’s case was not sufficient to prompt objectively justified fears as to its impartiality. Regarding the Appeal Chamber, it had had full jurisdiction in examining the grounds of her appeal and had given a detailed decision in her case.

Conclusion: no violation (six votes to one).

(b) Legal certainty:

The vetting bodies had been able to examine transactions that had taken place dating back as early as the 1990s. Placing strict temporal limits for the evaluation of assets would have greatly restricted and impinged on the authorities’ ability to evaluate the lawfulness of the total assets acquired by the person being vetted over the course of their professional career. A greater degree of flexibility was granted to Albania for the application of statutory limitations, consistent with the objective of the Vetting Act, considering that prior verification of declarations of assets had not been particularly effective in the country. It could also be a matter of interpretation as to when exactly a specific offence might have occurred in that context, that was, whether at the time the asset had been initially acquired or at a later point in time when the asset had been disclosed in a periodic declaration of assets. Such flexibility could however not be unlimited, and the implications had to be considered on a case-by-case basis.

The adverse findings against the applicant had been based both on the disclosure made in her vetting declaration of assets and prior declarations filed by her and her partner. The applicant’s difficulty in justifying the lawful nature of the financial sources owing to the passage of time and the potential absence of supporting documents, was partly due to her own failure to disclose the relevant asset at the time of its acquisition. Additionally, the Vetting Act provided attenuating circumstances if a person being vetted faced an objective impossibility to submit supporting documents. The applicant had not provided any supporting documents justifying the existence of an objective impossibility to demonstrate the lawful nature of her partner’s income from 1992 to 2000. Further, the applicant’s partner’s savings, even if they had been accepted as claimed, would not have sufficed to buy the asset in question.

It was also not per se arbitrary, for the purposes of the civil limb of Article 6 § 1, that the burden of proof had shifted onto the applicant in the vetting proceedings after the IQC had made available the preliminary findings resulting from the conclusion of the investigation and had given access to the evidence in the case file.

Conclusion: no violation (five votes to two).

Article 8:

There had been an interference with the applicant’s right to respect for her private life as a result of her dismissal from office on basis of the Vetting Act: firstly, as regards the evaluation of assets, because she had been found to have made a false declaration and concealed a flat; and secondly, regarding the evaluation of professional competence, because she had undermined public trust by failing to recuse herself from the examination of a constitutional complaint. While the second ground was formulated in rather broad terms, it was not uncommon to have such a provision in disciplinary law and rules of judicial discipline, and the ground had been supplemented by statutory provisions in force at the relevant time. The interference had therefore been ”in accordance with the law”. It had also pursued legitimate aims, as the Vetting Act in general, and the interference in the applicant’s case in particular, had aimed to reduce the level of corruption and restore the public trust in the justice system, connecting to the interests of national security, public safety and the protection of the rights and freedoms of others.

The Vetting Act and related reforms had responded to the urgent need to combat alarming levels of corruption. In such circumstances, that reform of the justice system s had responded to a “pressing social need”.

Regarding the evaluation of professional competence, the vetting bodies had not given adequate reasons to justify their finding that the applicant’s failure to recuse herself from a set of constitutional proceedings had undermined public trust in the judicial system. Automatic disqualification of a judge who had blood ties with another judge who had heard another set of proceedings concerning one or all parties to the proceedings was not always called for, particularly for a country the size of Albania, and it had not been called for in the circumstances of that case. Regarding findings in relation to the evaluation of assets, however, there was nothing arbitrary or manifestly unreasonable in the domestic decisions. Moreover, according to international standards, judges had to meet particularly high standards of integrity in the conduct of their private matters out of court. Those findings, taken cumulatively, had been sufficiently serious under national law and could in themselves justify the applicant’s dismissal from office.

Having regard to those individualised findings, the applicant’s dismissal had been proportionate. The Vetting Act provided for two types of disciplinary sanctions: dismissal from office or suspension with the obligation to attend compulsory education. In light of the sui generis nature of the vetting proceedings and the exceptional circumstances which had preceded the adoption of the Vetting Act, it was consistent with the spirit of the vetting process to have a more limited scale of sanctions. Finally, the lifetime ban imposed on the applicant and other individuals removed from office on grounds of serious ethical violations was not inconsistent with or disproportionate to the integrity of judicial office and public trust in the justice system. That was especially so within the national context of ongoing consolidation of the rule of law.

Conclusion: no violation (five votes to two).

The Court also held, by five votes to two, that: there had been no violation of Article 6 § 1 regarding the fairness of proceedings, as the applicant had had adequate information, time and facilities to prepare an adequate defence, and both vetting bodies had provided sufficient assessments and reasons for their decisions; and, that there had been no violation Article 6 § 1 in respect of a public hearing, as the nature of proceedings on appeal had not required such.

(See also Kamenos v. Cyprus, 147/07, 31 October 2017, Legal Summary; Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 and 2 others, 6 November 2018, Legal Summary)

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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