Judicial reforms in Albania are not just a condition for progress towards EU accession, they also represent a historic opportunity for Albania to break with its past legacy of corruption. But there is strong resistance not least from those who fear a clean-up of the judiciary will result in past crimes being re-examined.

Judicial reform might sound like a dry topic but it goes to the heart of the biggest problems still faced by ordinary Albanians - a lack of accountability for those involved in corruption and organised crime, and conversely the inability of victims of crime to secure justice. This also means there is no real deterrent for criminals.

Despite steps by Prime Minister Edi Rama’s government, such as the 2015 campaign against the informal economy and an effort to force Albanians to stop stealing electricity, corruption is still widespread. Albania was ranked in 88th place on Transparency International’s 2015 Corruption Perceptions Index - the sixth lowest in Europe. The number of final convictions in corruption and organised crime cases are tiny compared to the scale of criminal activity, according to the European Commission’s 2015 enlargement report on Albania.

It warns that institutions involved in the fight against corruption (which include courts and prosecutors) remain “vulnerable to political pressure and other undue influence”. Overall, the EC identifies “substantial shortcomings ... regarding independence and accountability of judges and prosecutors”.

“Administration of justice is slow and judicial decisions are not always enforced. The professional training of judges is inadequate and their independence is not fully ensured. There is insufficient accountability of judges and prosecutors and corruption within the justice system is widespread.”

The report makes an effective case for reform, something the international community has been advocating for decades, but which has become bogged down in a highly political debate between government and opposition in Tirana.

There is strong evidence that the overwhelming majority of Albanians want judicial reform. A survey by Tirana-based think tank the Institute for Development and Research Alternatives (IDRA) found that 91% of respondents believe in the need for judicial reform. This support spans the political spectrum, even though many Albanians do not have detailed knowledge of the proposed changes.

Respondents had little faith in the judicial system, with less than 20% considering that judges or prosecutors wanted the system to be reformed. There was also a lack of confidence in whether the reforms would actually be carried out - 52% feared that political negotiations could damage the success of the planned reforms, while 60% believed that changing the system would not guarantee improvements since those within the judicial system were corrupt. Another survey, commissioned by the joint programme between the European Union and the Council of Europe to support efficiency of justice, found that less than half of respondents trusted the judicial system.

Acrimonious discussions

The debate over judicial reform has been ongoing for the last 18 months, involving both government and opposition, as well as civil society and the international community. However, discussions between the government and opposition have been generally acrimonious and Rama’s hopes of reaching a consensus before submitting the proposed reforms to a parliamentary vote seem likely to be dashed.

At the latest round of talks on June 6, Rama and Democratic Party leader Lulzim Basha again failed to reach agreement after several hours of discussions. Rama said after the meeting he would no longer wait for a consensus, but Basha has warned that submitting a draft to the parliament without his party’s agreement means it is doomed to failure since support from at least some Democratic MPs is needed for Rama to gather the two-thirds majority required to pass the package. Since then, the Albanian parliament’s ad hoc committee on judicial reform has approved draft constitutional amendments.

In a joint June 8 statement, the EU delegation and member state embassies in Tirana urged both sides to “undertake the necessary steps to adopt the legal package on the judicial reform”.

The US embassy took a stronger tone, and singled out the opposition Democratic Party for criticism. “The government displayed flexibility, but ultimately the opposition did not”, its statement said. The US government “supports the efforts of the Albanian government to move the draft towards passage. It will be the responsibility of individual members of parliament to decide whether they want to keep today’s corrupt and politicised judicial system or whether they will support this reform.”

None of the main politicians have spoken out against reform, but with many interests at stake, observers say some are deliberately trying to hold back the process. One analyst who declined to be named told bne IntelliNews he expected behind the scenes deals could result in the planned reforms being watered down.

The biggest sticking point concerns the power to appoint high-level officials in the judiciary, one of the main tools used by political actors to exert their influence over the system.

This has been the case since the reforms made in the early 1990s, immediately after the collapse of the communist system, when the then government sought to purge the system of communist appointees. Unfortunately, points out Arolda Elbasani of the Robert Schuman Centre for Advanced Studies, “they replaced the judges not with professionals but with political partisans ... Judges that went to the top of the hierarchy did so because of political support rather than any other qualifications or experience.”

State capture

Countries across the post-communist space have experienced problems with the rule of law, but this is especially acute in the western Balkans. Some of these countries suffered a complete absence of state authority during the wars of the 1990s, allowing criminal groups linked to the political hierarchy to move in. Albania too was on the brink of civil war in 1997, and much of the country was controlled by heavily armed vigilante groups. “When the state doesn’t exist, organised crime benefits,” says Elbasani.

Looking forward, she adds that, “We know from previous EU accessions that the rule of law is a very hard area to reform. In post-communist societies where institutions were changing, elites had a lot of leeway to capture the state and shape it to their interests.”

Unsurprisingly, those who have managed to capture the state are unwilling to give up their power. For many years, high-profile criminals and suspects including politicians have been able to walk free in Albania, even when details of wrongdoing have been revealed by the local or international media. Much of the resistance to the reforms comes from those who fear that past cases could be re-examined in the future.

These include the worst tragedy in modern day Albania - the March 2008 explosion at the Gerdec artillery storage facility in which 26 people were killed. Investigations by the New York Times found that unskilled workers had been employed to destroy some of Albania’s massive communist era arsenal, though old Albanian army cartridges like those supposedly destroyed in Gerdec later surfaced in Afghanistan. According to the New York Times, an official from the company that bought the ammunition mentioned Albania’s then Prime Minister Sali Berisha and his son in a recorded conversation. Berisha has denied any involvement in the ammunition deals.

Another case that could be re-examined is the failed privatisation of state oil company Albpetrol. The process was cancelled in 2013 after the winning consortium, headed by local tycoon Rezart Taci’s Vetro Energy, failed to make its downpayment. Vetro had submitted a guarantee for 10% of its tender offer, apparently guaranteed by Chicago-based American Chartered Bank. Its claim to have the guarantee was backed by statements from the government committee running the tender process. However, as bne IntelliNews revealed, American Chartered never issued a bank guarantee.

These are just some of the unresolved cases from Albania’s past. The lack of accountability has persisted despite the fact that on paper, Albania has very good laws and physical infrastructure. “The laws are perfect, new buildings are built with huge international assistance, but the judges inside these buildings are political appointees who are there not to serve the profession but the party who appointed them,” says Elbasani.

This disconnect between theory and practice is backed up by the latest EU enlargement report. “The independence of the judiciary is enshrined in the constitution. However, in practice it is jeopardised by the highly politicised way in which High Court and Constitutional Court judges are appointed ... In principle, judges and prosecutors decide independently on individual cases. In practice, their independence is limited...” the report says.

The international community has been pushing for reform for many years. However, the issue of judicial reform has come to the fore this year as Albania aims to open its first accession chapters. The EU now has a real lever to force change to happen.

Tirana has already made efforts to prove its anti-corruption credentials. As EU foreign ministers prepared to decide on whether to give the country candidate status back in 2014, the Albanian police launched a large-scale military operation against the so-called “marijuana mountain” in Lazarat. Responsible for producing 900 tonnes of the drug a year, Lazarat was also a major transit zone for cocaine, heroin and other drugs. This was followed up by other campaigns to tackle various aspects of corruption.

But much more is needed, as the EU has become increasingly tough on would-be members in the area of rule of law, and officials including high representative Federica Mogherini have made it clear that Albania will not progress without reforms. “The prioritisation of the rule of law in EU decision-making has changed over time,” says Elbasani. “No new countries will make it in without dealing with rule of law issues first. There is a general understanding that if this isn’t dealt with before accession it will be much harder to deal with it afterwards.”

This stems partly by the experience after Bulgaria and Romania entered the EU in 2007, despite being visibly unprepared in this area. Both countries are now subject to the EU’s Cooperation and Verification Mechanism (CVM) to monitor progress in tackling corruption and - in Bulgaria’s case - organised crime. Croatia, which joined six years later, was subject to more stringent procedures as are the countries now aiming for accession.