ECtHR: Vetting of Supreme Court judge was unfair

In its recent judgment in the case Thanza v. Albania – which became final and enforceable on 4 October 2023 – the European Court of Human Rights found a violation of the applicant’s fair trial rights on account of the domestic authorities’ failure to disclose the information which served as a basis for his dismissal from office in the context of the so-called vetting process.

In 2016 Albania adopted a comprehensive and highly controversial reform of the judicial system with the purported aim to restore the trust of citizens in judicial institutions and democracy. The reform provided inter alia for an exceptional one-time evaluation of all sitting judges and prosecutors (the “vetting process”) consisting of three different assessments: 1) the asset assessment (an overall audit of movable and immovable assets); 2) the background assessment (aimed at verifying whether the assessee had inappropriate contacts with persons involved in organized crime); and 3) the proficiency assessment (an overall audit of the assessee’s ethical and professional activities). The reform also provided that the vetting process be conducted, in the first instance, by a newly-instituted Independent Qualification Commission (“IQC”) and, in the second instance, by the Special Appeal Chamber (“SAC”), i.e. a specialized chamber of the Constitutional Court (together, the so-called “vetting bodies”).

In the case at hand, the vetting bodies dismissed the applicant from his post as justice of the Supreme Court inter alia on account of the alleged “reasonable suspicion” that he had been involved or had had inappropriate contacts with persons involved in organized crime. This conclusion was based on information that were never disclosed to the applicant, a course of action which the latter strongly opposed at the domestic level, but to no avail (the vetting bodies merely replied that, under the applicable legislation, information shall not be disclosed if it endangers the safety of the source). The vetting bodies also attached decisive weight to the applicant’s social relationship with a notary public with no criminal record, solely because the notary and the applicant had been both investigated for alleged corruption, irrespective of the fact that the case had been discontinued.

The applicant, represented by S&P, turned to the European Court of Human Rights, claiming that he had been denied the opportunity to counter the main allegations grounding the negative assessment of his background and to plead his case in an effective manner in breach of Article 6 § 1 ECHR. With the decision at hand, the Court fully upheld the applicant’s claims in this respect. First, the Court held that, given the vetting bodies’ failure to disclose the relevant information, he was in no position to rebut either the factual allegations or their legal classification for the purposes of the vetting process. To that end, the Court stressed that the vetting bodies had adduced no reasoning as to the necessity and proportionality of the restrictions imposed on the applicant’s right to access the classified documents, nor to their compliance with Article 6 ECHR. Second, the Court found that the assessment of the applicant’s contact with the notary raised serious concerns as to his right to a fair trial also in light of the fact that the criminal investigation was swiftly discontinued.

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