THIRD SECTION
CASE OF XHOXHAJ v. ALBANIA
(Application no. 15227/19)
 
JUDGMENT
 
Art 6 § 1 (civil) • Bodies set up to vet serving judges and prosecutors to combat corruption constituting independent and impartial tribunals established by law • Sufficient safeguards • Non-representation of service judges consistent with the extraordinary nature and spirit of the vetting process, accompanied by strict eligibility requirements • Full review jurisdiction of Appeal Chamber 
Art 6 § 1 (civil) • Fair hearing • Lack of statutory limitation for asset evaluation not breaching the principle of legal certainty given its sui generis nature and context
Art 6 § 1 (civil) • Fair hearing • Adequate information, time and facilities to prepare adequate defence, with sufficient assessment and reasons for decisions given by vetting bodies • Nature of proceedings not requiring a public hearing on appeal 
Art 8 • Private life • Justified dismissal of Constitutional Court judge based on individualised findings from asset evaluation • Proportionate lifetime ban from re-entering justice system for serious ethical violation

 
STRASBOURG
9 February 2021
FINAL
 
31/05/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Xhoxhaj v. Albania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President
 Georgios A. Serghides,
 Dmitry Dedov,
 Georges Ravarani,
 Maria Elósegui,
 Darian Pavli,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 15227/19) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Ms Altina Xhoxhaj (“the applicant”), on 8 March 2019;
the decision to give notice of the application to the Albanian Government (“the Government”);
the written observations on the admissibility and merits filed by the Government and the applicant;
third-party comments received from the European Commission and Respublica, which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3);
Having deliberated in private on 15 December 2020 and 19 January 2021,
Delivers the following judgment, which was adopted on the 
last-mentioned date:
INTRODUCTION
1. This case concerns the outcome of re-evaluation proceedings (otherwise referred to as “vetting”) against the applicant, which resulted in her dismissal from the post of judge of the Constitutional Court. It is part of a series of applications which have been lodged with the Court raising similar factual and legal issues under Articles 6, 8 and 13 of the Convention. THE FACTS
2. The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome. 3. The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Muçaj of the State Advocate’s Office. The Background TO THE CASE
4. In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (“the Assessment Report”). The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks – mainly with the involvement of a “middleman”, such as a family member, friend or lawyer – was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania. 5. The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (“the Reform Strategy”). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, (i) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties. 6. As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms 
“Re-evaluation of Judges and Prosecutors Act” and “Vetting Act” are used interchangeably. Likewise, the terms “vetting process/proceedings” and 
“re-evaluation process/proceedings” are used interchangeably. 7. The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion. The circumstances of the case
8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. The applicant’s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court. 10. In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant. Proceedings before the Independent Qualification Commission
11. Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets (deklarata e pasurisë). She and her partner disclosed that they co-owned three properties: (i) a flat measuring 101 sq. m which had been acquired by means of a contract for an off-plan purchase (“an off-plan contract”) entered into on 8 March 2005 (blerë më 8 mars 2005 [me] kontratë sipërmarrje) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 (kontratë sipërmarrje datë 5.10.2010) and (iii) a plot of land measuring 221.9 sq. m. They both also gave a detailed description of the sources of their income and savings. The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration (deklarata për kontrollin e figurës) and a professional self-appraisal form (formulari i vetëvlerësimit professional) (see also paragraphs 133 and 134 below). Administrative investigation
12. On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (“IQC”) decided to launch an in-depth administrative investigation (hetim administrative të thelluar) into the three declarations that she had filed. 13. On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly. 14. Between 15 December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26 December 2017 and 6 March 2018. 15. On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated (i) that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant’s financial situation (likuiditetet), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint. 16. Pursuant to section 52 of the Vetting Act and Article D § 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 
45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses. 17. On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6 January to 5 December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”), the Classified Information Security Directorate (“CISD”) and the Inspectorate of the High Council of Justice (“IHCJ”), had given a favourable opinion in relation to all of the applicant’s declarations. 18. On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence. 19. On 16 April 2018, following the applicant’s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined. 20. On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings. 21. On 25 April 2018 the IQC adjourned without taking a decision in the applicant’s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing. The IQC’s decision
22. On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant’s case.

Outcome for Article 8: no_violation